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Indian environmentalism: Unconstitutional regression

The polluter must pay but he must be made aware of boundaries that are to be followed. Clarity and transparency are required on both sides.

Avishkar Singhvi

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Environmentalism is an omnibus construct, far beyond mere conservation and protection of air, soil, water and land. As US First Lady Bird Johnson said: “The environment is where we all meet; where we all have a mutual interest; it is the one thing all of us share.”

A disturbing trend has emerged, of concerted governmental action by way of rule changes and relaxations, degrading the environment with impunity. Two assaults—relaxations in several sectors qua environmental clearances and the generous and indiscriminate diversion of dense jungles for commercial/governmental use—require special mention. Close behind is conscious governmental silence qua pollution and water scarcity issues.

There is a grim failure to discharge the constitutional duty to protect the fundamental rights of citizens to preserve the environment, sidelining of experts, violating principles of non-regression and forgetting that this model cannot be sustainable in the long run because God never provides a free lunch for too long.

India witnesses an extremely high number of violations due to lack of proactive monitoring. It cries out for an environmental regime that has strict and clear standards and penalties for transgressions. The polluter must pay but he must be made aware of lucid boundaries that are to be followed. Clarity and transparency is required on both sides. In a country where the law spells out clear bright lines, there will be minimal need for vigilante “public interest” action which invariably creates serious bottlenecks for honest businesses that have followed due process of law.

 The Union Government amended the parent notification to dispense with Environmental Clearance ( EC) altogether for a large chunk of construction projects. For such categories, there is no requirement of Expert Appraisal (EA) or Environmental Impact Assessment ( EIA), the most crucial features in the process and without which there is mere lip service to the cause. Thankfully the courts stepped in in time and, while noting the complete desecration of the statutory framework as well as the wanton violation of the findings of the Kasturirangan Report, which had recommended the precise opposite, stayed the notifications. Ironically, these notifications are under section 3 of the 1986 Act, which only permits measures aimed solely at improving the quality of the environment and not degrading it. Meanwhile, the new 2020 notification languishes at the draft stage.

Similarly, the mining sector brazenly did away with EC for a large chunk of minor mineral leases and, worse, in the teeth of the Supreme Court’s ratio in Deepak Kumar’s case (2012) which laid down that EC procedures must apply even to small leases. Most mining leases are less than 5 hectares and cluster mining as also breaking up of large into smaller leases is the dominant reality in India. For such small leases, most of the EC processes are now to be dispensed with—yet another red flag egregiously crossed. The NGT sternly deprecated such practices and the matter is now before the apex Court. The fact that courts have somehow intervened to protect fragile environmental interests does not detract from bad intentioned and anti environmental attempts by the government to obviate scrutiny through venerable and tested tools like EIA and EA to achieve so called developmental goals in a tearing hurry.

 In the draft 2020 regime, for example, for the construction sector, a miniscule, almost non-existent level of scrutiny is proposed by way of an Environment Permission and standard EIA procedures are rendered inapplicable. Changing the name does not change the game, and most experts can see that this nomenclature change as a blatant, camouflaged relaxation.

The draft also introduces ‘ex-post facto clearances’ for violators, which militates against the very idea of a sequential process of Impact assessment study, management plans followed by an Environmental clearance after full application of mind. Such innovative amendments treat the sanctity of the environmental space with contempt and perform a far more dangerous function: post facto legitimation of illegalities. The timeless concept of once a forest always a forest has also been systematically undermined.

For Minor minerals, the draft proposes that ‘a one page deemed environmental permission’ would be enough, despite the existing decisions and the onerous mandate of the existing regime. Permission is virtually automatic, on the basis of a short questionnaire. These new concepts are introduced to circumvent the law and help powerful lobbies.

 These relaxations sync “admirably” with the projects undertaken by the government eg. Central Vista, Aarey colony, Netaji Nagar, Kidwai nagar, diversion of thousands of sq. km of forest land and so on. There is one common link. The government is the pro active player, playing a significant desecratory role and not the private sector! The age old dilemma rears its ugly head with no real answers: who will guard the guardians?

Corona, the scourge thrust upon us, has many benefits and lessons for those who want to be aware and wish to absorb. Minimizing the use of paper, virtual interactions, reduced transportation and energy costs, humongously reduced travel, minimalistic living, conserving our natural resources, decluttering, are all the compelling lessons of Covid, which should constitute the new normal. Instead, the government is regressing in the opposite direction qua environmentalism!

Campaigns such as Swachh Bharat or banning single use plastics, individually virtuous and desirable, seem hollow and hypocritical if the same governments who propound them, defile and deface the environment with such relaxations and such egregiously consuming mega projects. “Ease of doing business” cannot trump fundamentals relating to established and time tested environmental processes. If checks and balances seeking to ensure that projects are environmentally sustainable are diluted to vanishing point, then the consequence can only be irretrievable damage.

Pope John Paul II’s anguish must be remembered by all: “The Earth will not continue to offer its harvest, except with faithful stewardship. We cannot say we love the land and then take steps to destroy it for use by future generations.”

(The author is an Advocate, Supreme Court of India.)

Legally Speaking

Democracy, politics and hate speech

Anu Bhuvanachandran

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Post-colonial India has earmarked in the Preamble of its Constitution that the nation is Sovereign, Socialist, Secular, Democratic, Republic, Justice, Liberty and Equality. The term democracy has grown to the extent that for running a government, to win the elections, the proposed representative of the people of India contesting for election took free license to discriminate any group, defame any set of people and even to the extent to express hatred towards a particular group in open without hesitation. Once this desert was in thirst of freedom; now it is spilling back to ocean.

The scope, demand and utility of hate speech arise often a year towards elections and wholly shuts on the final day of election campaign. Hate speech is not just limited to this. Whenever an issue arises in the state or at central level the same hate speech works. It is to look that whether hate speech resolve the issue on which the hate speech sprouted out. In fact democracy thrives on disagreements provided they do not cross the boundaries of civil discourse.

WHAT EXACTLY IS HATE SPEECH?

Indian Law has no definition for hate speech. But the meaning of the term can be carved from various acts recognized as offences such as sedition, promotion of enemity between different groups on grounds, imputations and assertions prejudicial to national integration, deliberate and malicious act based on religion, sex, race, place of birth etc.; rumour or report causing public mischief under the Indian Penal Code; acts disqualified under several legislations such as the Representation of the People Act, 1951, provisions penalizing incitement to and encouragement of untouchability under the Protection of Civil Rights Act, 1955 etc. Drawing from the available sections and essence intending to portray hate speech; it is expressly targeting a particular group based on geography, religion, sex, place of birth or any other discriminating factor, for the purpose of winning or achieving the target socially, economically and politically.

WHY HATE SPEECH HAS WIDE SCOPE IN A DEMOCRATIC SOCIETY?

In a democratic system of governance, it is “for the people, of the people and by the people”. Theoretically, democracy is a dividend of utilitarianism but the practice have put shrugs on the theory rather than giving wings. Democratic system of governance shows green card for representation of the people and public interest governance in consonance with the public laws of the land. Public laws are for protecting the public interest and whoever wins the public interest would survive and be empowered to decide the governance for the future.

Winning public interest in the modern times is tedious hence crafting dummies to make the people believe and trust that the government which hails in future would actually meet the public interest. India is a country with multiple political parties where the two to three are strong enough to grow and secure monopoly in any near future. Hence there exist a tough competition to win the hearts of many through winning the public interests across the nation.

Since achieving every single public interest is cumbersome; pointing towards the flaws of ruling party which may or may not have a religious back up and flaming the emotions of the public at large through continuous hate speech was a trend in early nineties and the immediate years of second millennium. Hate speech was therefore procuring a wide scope with respect to democracy in India.

TREND TO OFFENCE: JOURNEY

As the ruling party and the opposition gave thrust on hate speech and rending unfulfilling promises to the public, the parties started achieving governance for some period. Afterwards the public intensified their protests for hate speech and raised their grievances to the court of law, the judiciary recognized the actual need for preventing and implementing penalties for hate speech.

The judicial intervention can be remarkably traced initially in the landmark case of Brij Bhushan v. State of Delhi in 1950 where it was opined for constitutional amendment to insert public order as a ground under art. 19(2).

Thereafter in Ram Manohar Lohiya v. State of Bihar [1966], the apex court portrayed observance of three concentric circles that is law and order with widest radius, followed by public order and finally the security of the state. On hate speech the law and order is undoubtedly affected due to the aggressive emotions raised between people and the consequential riots and protests. Due to the same, there occurs loss of public order and hence it extends higher probability to challenge and affect the security of the state. Hence the three concentric circles are achieved. Once the security of the nation and the law and order of the state gets affected by a trend, it will have to demarcate as an offence under appropriate law and the punishment shall be implemented. The Lohiya case was stood on violation of grounds under article 19(2) of the Indian Constitution.

Ramji Lal Modi v. State of U.P is another milestone to identify the defects of hate speech which was a trend during those days. But in Ramesh v. Union of India, the court indulged that a movie that intends to impart a message of peace cannot be considered to violate 19(1) (a) just on the ground that it shows fanaticism and violence in order to express the futility of such acts.

In 2014 vide case Pavasi Bhalai Sanghatan v. Union of India the Supreme Court requested the law commission to examine the issues raised pertaining to hate speech and make recommendation to the Parliament to strengthen the Election Commission to prevent hate speech in that respect.

The tremor of hate speech was spread throughout the nation in a modernized manner during the historic judgment in Shreya Singhal v. Union if India [2015], where the Supreme Court held section 66A is unconstitutional. The court analyzed this case and has drawn differences between discussion and advocacy from incitement and held that it is the essence of article 19(1) of the Indian Constitution.

It can be seen that the judiciary is crafting and winding wires of restriction in accordance with technology, modernization in the society and public perspective.

UPDATING LAWS BY HATE SPEECH LAW REPORT

penalizing hate speech in pre-law commission report can be checked in a flash of time. The Indian Penal Code 1860 is the document that penalizes several aspects contributing to hate speech. Section 124A penalizes sedition. Section 153A penalizes promotion of enmity between different groups on the ground of religion, race, place of birth, residence, language etc. and doing acts against the maintenance of harmony. Section 153B penalizes imputation and assertions prejudicial national integration. S.295A penalizes deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion and religious beliefs. In addition sections 298 and 505 cover difference aspects of hate speech. Apart from the Penal Code, section 8 of the Representation of People’s Act, 1951 disqualifies a person from contesting election if he is convicted for acts amounting to illegitimate use of freedom of speech and expression. Section 123 and section 125 prohibits promotion of enmity on grounds of religion, race, caste, community or language in connection election as a corrupt electoral practice and prohibits it. Section 7 of the Protection of Civil Rights Act penalizes encouragement of untouchability through words, signs or visible representations. Section 3(g) of the Religious Institution Prevention of Misuse Act 1988 prohibits use of place under religious institution for creating disharmony, feelings of enmity etc. Further sections 95, 107 and 144 empowers District Magistrate and state government to take measure on actions contributing to hate speech which are recognized as offences under the Penal Code.

Post Pravasi Bhalai Sanghatan case, a committee was constituted by the Law Commission to study the issues on hate speech under the chairmanship of Justice B.S. Chauhan. The Committee suggested amendment of Indian Penal Code and Code of Criminal Procedure which are incorporated in 2017 criminal law amendment. Let’s look at a glance on the same. Section 153C and 505A is inserted which deals with prohibiting incitement to hatred and causation of fear, alarm or provocation of violence in certain cases purporting to hatred. Amendment of 1st Schedule of the Cr.P.C has been made in the criminal law amendment.

IS HATRED NO MORE IN DEMOCRATIC INDIA?

No. It is there but in indirect form. It can be noted that the parties are now keen on spitting hate to a particular individual and therefore the defamation cases are increasing in the political sphere. In fact laws are not only the factor that can prevent hate speech, it is the mannerism of the system and the attitude of people in the parties who use hate speech tool must change. When the present situation is looked telescopically, I find that a new trend is emerging in democracy for winning the chair of governance. It is nothing but doing a part of promise which is made during the election campaign, rather than to throw spears of hatred to each other. The present trend is benefiting a few section of the society at least.

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The case of uninterrupted supply of liquid medical oxygen to Madhya Pradesh without being influenced

Tanvi Dubey

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A Bench comprising of Hon’ble Mr. Justice S.C. Sharma and Hon’ble Mr. Justice Shailendra Shukla of the Hon’ble High Court of Madhya Pradesh at Indore (“Hon’ble Court”) in the case of Maharaja Yeshwant Rao Hospital (M.Y. Hospital), Indore Vs. Union of India & 2 Others (being W.P. (C) No. 13812 of 2020) vide its Order dated 16.09.2020, by way of an interim relief directed M/s Inox Air Products Pvt. Ltd. (Respondent No. 3 therein) to continue the supply of liquid medical oxygen to the State of Madhya Pradesh uninterruptedly, until further orders.

BACKGROUND FACTS

The facts ensuing the filing of the Writ Petition under Article 226 of the Constitution of India, are as follows:

That the Maharaja Yeshwant Rao Hospital (hereinafter referred to as “M.Y. Hospital/Petitioner”) is the hospital owned and controlled by the State of Madhya Pradesh. It is the only hospital in the entire region of Malwa under the control of the State Government which is providing all kind of advance treatments including treatment to the Covid-19 patients;

That the State of Madhya Pradesh do not have any Oxygen Manufacturing Plant and that the State has been importing liquid oxygen from the State of Maharashtra, State of Gujarat and State of Chhattisgarh.

That as per the data provided by the Petitioner the total requirement of oxygen in the State of Madhya Pradesh is about 100 tonnes per day and keeping in view the increase in number of Covid patients the Hospitals will be requiring 270 – 280 tonnes of liquid medical oxygen per day.

That an agreement was executed on 21.05.2018 (still in force) by the Petitioner with M/s Inox Air Products Pvt. Ltd. (Respondent No. 3 therein) and twenty tonnes of liquid medical oxygen is being supplied to the State of Madhya Pradesh by M/s Inox Air Products Pvt. Ltd. The said agreement was executed for three years and valid till 20.05.2021.

That a circular dated 07.09.2020 was issued by the State of Maharashtra wherein it was inter alia observed that liquid medical oxygen supply is very crucial to the management of patients infected with Covid-19 and, therefore, 80% of the production is to be used only for Hospitals in Maharashtra.

That vide letter dated 10-09-2020 addressed by the Secretary Health to all Chief Secretaries over the country, the Government of India has categorically written to all the State Governments to continue with the existing supply (under the various agreements with Hospitals and various States).

MAIN POINTS OF CONTENTION AND ANALYSIS

Notification dated 07.09.2020 is discriminatory in nature as it tends to discriminate between the patients based on their domicile and further on the basis of the State where the treatment is going on. It is pertinent to note that the State of Maharashtra itself in its notification has duly admitted that “..Liquid medical oxygen supply is very crucial to the management of patients infected with Covid-19…” Therefore, the discrimination between the Covid-19 patients within various States is unjustifiable and arbitrary.

It is baffling to note that the said notification is being issued while the entire country is struggling each day to fight the Pandemic. Therefore, to prioritize the patients or create an unnatural and unjust split amongst the patients is discriminatory and capricious. The issuance of notification dated 07.09.2020 is an afterthought and is in sheer violation of the fundamental rights enshrined under Article 14 and 21 of the Constitution of India. It is a settled law that right to life includes right to health. That the said notification is in flagrant violation of basic principle of right to health which is an important facet of right to life as observed by the Hon’ble Supreme Court of India in plethora of judgements. The Hon’ble Supreme Court of India in the matter of Assn. of Medical Superspeciality Aspirants & Residents v. Union of India, (2019) 8 SCC 607, has in clear and categorical terms held that the right to health is integral to the right to life. The relevant portion of the said judgement is extracted hereunder, for ready reference:

“26. Right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities [State of Punjab  v.  Mohinder Singh Chawla, (1997) 2 SCC 83 : 1997 SCC (L&S) 294] . The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and the restriction would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights [Francis Coralie Mullin v. State (UT of Delhi), (1981) 1 SCC 608 : 1981 SCC (Cri) 212]”

Further, in the matter of Devika Biswas v. Union of India, (2016) 10 SCC 726, the Hon’ble Supreme Court has reiterated that right to heath is an integral facet of right to life. The relevant extracts of the said judgement are provided hereunder, for ready reference:

”107.  It is well established that the right to life under Article 21 of the Constitution includes the right to lead a dignified and meaningful life and the right to health is an integral facet of this right. In CESC Ltd. v. Subhash Chandra Bose [CESC Ltd. v. Subhash Chandra Bose, (1992) 1 SCC 441 : 1992 SCC (L&S) 313] dealing with the right to health of workers, it was noted that the right to health must be considered an aspect of social justice informed by not only Article 21 of the Constitution, but also the Directive Principles of State Policy and international covenants to which India is a party. Similarly, the bare minimum obligations of the State to ensure the preservation of the right to life and health were enunciated in Paschim Banga Khet Mazdoor Samity v. State of W.B. [Paschim Banga Khet Mazdoor Samity v. State of W.B., (1996) 4 SCC 37]”

Uninterrupted supply of medical oxygen is an important pre-requisite for managing moderate and severe cases of COVID-19 patients and hindrance in any form to the supply of oxygen is manifestly arbitrary as per the standards laid down by the Hon’ble Supreme Court from time to time.

The Hon’ble Supreme Court in the matter of Shayara Bano v. Union of India, (2017) 9 SCC 1 (@ Para 95-97 and 100-01] held that –

“And a constitutional infirmity is found in Article 14 itself whenever legislation is “manifestly arbitrary” i.e. when it is not fair, not reasonable, discriminatory, not transparent, capricious, biased, with favouritism or nepotism and not in pursuit of promotion of healthy competition and equitable treatment. Positively speaking, it should conform to norms which are rational, informed with reason and guided by public interest, etc

Lastly, the notification dated 07.09.2020 seeks to treat equals unequally, by assuming that denial of supply of oxygen in the State of Madhya Pradesh will not affect the health of thousands, in need of the oxygen in the State of M.P. and thus fails to meet the test of proportionality and reasonableness under Article 14 of the Constitution. The Hon’ble Supreme Court in K.S. Puttaswamy (Retired) v. Union of India,  (2019) 1 SCC 1 held that “Proportionality is an essential facet of the guarantee    against  arbitrary  state  action because it ensures that the nature and quality of   the   encroachment   on   the   right   is   not disproportionate to the purpose of the law…”

INTERIM RELIEF GRANTED

By way of an interim relief, the Hon’ble High Court vide its order dated 16.09.2020, directed M/s Inox Air Products Pvt. Ltd (Respondent No.3 therein) to continue uninterrupted supply of liquid medical oxygen to the State of Madhya Pradesh including the Petitioner Hospital, without being influenced by the Circular dated 07.09.2020 issued by the State of Maharashtra.

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Legally Speaking

Losing ground of economic freedom: Moving beyond the rhetoric

There is an urgent need to correct inadequacies in banking regulation which allow banks to accumulate NPAs. Alongside, there should be more options for restructuring of banking companies. Makeshift provisions such as one-time restructuring with creditors, Inter Creditors Agreement are not the long-term solution. Mergers of banks are also not a solution to deal with escalating NPAs.

Neeti Shikha

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In the recent ranking of the country’s economic freedom, India’s ranking has slipped by 26 spots. The report measures economic freedom based on several quantitative and qualitative factors, grouped into four broad categories, or pillars, of economic freedom that includes rule of law, government size, regulatory efficiency and open market. The report suggests that there has been decline in government integrity, fiscal health and labour freedom.

While many see this as an indicator of the government’s under performance, it must be noted that Indian economy carries a huge baggage of the past that led the economy, business and freedom to do business, languish for nearly two decades. The current government has made continuous efforts in creating an environment for economic freedom. The recent decision to privatize airports and railways shows that the government is ready to let go state mired business. It is determined to take bold measures to redefine the classical socialist model of economic policies. The socialist policies that resulted in higher state control have been derided by many progressive economies.

Now, the same spirit has to be shown to improve India’s fiscal health which is in a dwindling state. There is an urgent need to correct inadequacies in banking regulation which allows banks to accumulate NPAs. Alongside, there should be more options for restructuring of banking companies. Makeshift provisions such as one-time restructuring with creditors, Inter Creditors Agreement are not the long-term solution. Mergers of banks are also not a solution to deal with escalating NPAs. In the long run, it will become inevitable to allow all the banks to go private and let banks that do not perform to fail. After all, ease of business includes ease of exit.

The ‘parens patriae’ approach of the government that forces them to take extreme bailout measures for protecting failing banks must be eschewed. Failing banks should not be allowed to socialize the loss through bail outs. In this regard, the ‘Bail In’ as proposed under the FRDI Bill that met severe criticism was well intended, albeit coming at the cost of depositors. There is a need to find a market centric solution for the banking industry that may circumvent the social cost of bank failures. Finding a single window solution is not possible and the answer has to come from a myriad of regulatory frameworks. The regulations should be premised on transparency and accountability. Corporate governance in banks needs to be strengthened.

Another indicator of economic freedom is Rule of law. Rule of law is guaranteed by a set of legal structures that includes predictability of law, strength of legal institutions that guarantees speedy justice etc. Some most celebrated laws in India which have been seen as truly liberal reforms suffer from uncertainty and shaky enforcement.

For instance, both IBC and GST laws have gone through several changes in a short span leading to confusion and conundrum. For IBC, it is time to look for sectoral solutions in insolvency and not alter the framework of IBC to find answers to all questions that may arise. For GST, the slabs must be reduced and GST needs to be simplified, both in terms of law as well as implementation.

Income tax goes as high as 30.9 percent (including an education tax) for individuals and 32.4 percent for corporations. The overall tax burden equals 7.3 percent of total domestic income. This needs to be reduced. Through the recent agrarian reforms, the government has incentivized farmers to become taxpayers to reap the benefits of the electronic farm market. Considering that over 50 percent of Indian population is involved in the agriculture sector, this will add to the overall tax collection. The report notes that the Public debt is equivalent to 69.8 percent of GDP and credit rating agencies have predicted the public debt to GDP to rise to 84% of GDP in the financial year 2021. There is a need to get the experts and devise a strategy to deal with this crisis.

Labour reforms need immediate attention from the government. The twin approach should be adopted that focuses on both labours and industry. Regulatory compliances for industries should be made flexible and industries should be encouraged to voluntarily adopt pro-labour schemes. At the same time, minimum wages should be removed and law should allow the labour market to set the minimum floor for wages through collective bargain. Considering that the government had attracted negative remarks over the immigrant issue, an act in this direction will help the government rebuild its image.

Milton Friedman has rightly noted that “One of the great mistakes is to judge policies and programs by their intentions rather than their results.” The intention of the government to create a favourable business environment cannot be contested. It is time now to focus on the results and evaluate the policies based on the outcomes. Government must create the right incentives to achieve higher efficiency in the economic system.

The author is Head, Centre for insolvency and Bankruptcy , IICA. Author is advisory board member of Centre for Civil Society, New Delhi and Academic Council Member of India School of Public Policy, New Delhi. Views are personal.

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Etching the contours of public morality

The debate was triggered by the Report of the Departmental Committee on Homosexual Offences and Prostitution published in 1957 by Sir John Wolfendon who recommended decriminalisation of homosexuality in the UK after a string of high-profile convictions. While Devlin opposed the Wolfendon Report’s recommendations, Professor Hart supported them.

J. Sai Deepak

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In the last few pieces, this author had undertaken a discussion on constitutional morality, its nexus with public morality, and the nature and scope of intervention permitted by the Indian Constitution to the State and the Judiciary respectively in relation to public morality. This also led to a discussion on whether the Judiciary forms part of the State within the meaning of Article 12 of the Constitution, and whether the remedy and right under Article 32 is available in respect of the Judiciary. The sum and substance of these discussions is that under the framework of the Indian Constitution, it is the State, meaning thereby the Executive and the Legislature but not the Judiciary, which has the power to invoke public morality within reasonable bounds for the purposes of placing reasonable restrictions on fundamental rights guaranteed by Part III of the Constitution. The Judiciary’s role is limited to examining the constitutional validity of the claim made by the State that the latter’s action is in the interest of or furthers public morality. That said, what are the parameters that must be applied to such an examination? In other words, how does the State demonstrate that its action represents public morality? What kind of exercise must the State undertake, if at all required by the Constitution, to assess public morality in relation to a given right? Or does the Constitution grant elected representatives the unfettered right as parens patriae i.e. parent of the nation, to speak on behalf of their constituents on every issue merely because they have been elected? Can members of the State form an opinion on public morality in relation to a given issue or topic without consulting members of the society to marshal some form of concrete evidence to base their positions on? Critically, in the context of a diverse society such as Bharat, how can the State hope to do justice to varying and often conflicting positions on public morality?

This perhaps requires us to dig deeper to address something more fundamental, namely the very basis for providing public morality as one of the constitutionally permitted fetters on individual rights. If the Constitution indeed celebrates individual rights and dignity as “a shining star in the constellation of fundamental rights”, how does one explain the constitutionally permitted eclipsing of this shining star by the State on grounds of preserving public morality? Does this not point to the fact that the Constitution, notwithstanding its recognition of and commitment to fundamental individual freedoms and dignity, also recognizes the big picture of the nature of “society”?

Students of English jurisprudence are familiar with the famous Devlin-Hart debate on the nexus between public morality and law which had Lord Patrick Devlin, a British Judge and legal philosopher on the one side, and Professor Herbert Lionel Adolphus Hart, a Professor of Jurisprudence at Oxford University on the other. The debate was triggered by the Report of the Departmental Committee on Homosexual Offences and Prostitution published in 1957 by Sir John Wolfendon who recommended decriminalization of homosexuality in the UK after a string of high-profile convictions. While Devlin opposed the Wolfendon Report’s recommendations, Professor Hart supported them. Their exchanges through publications on the nexus between public morality and the law is a must-read, even if their positions are deemed to be reflective only of the worldview of the civilization they come from, and may or may not be consistent with Indic civilizational ethos

In his lecture against the Wolfendon Report and later in his book The Enforcement of Morals, Devlin argued that society means a community and communion of shared views on morals and ethics, and that the State’s power to limit individual freedom on grounds of public morality comes alive when individual conduct threatens society’s constitutive morality i.e. shared moral bonds which hold the society together. Hart, who supported the Report, too wrote in 1971 as follows:

“A collection of individuals is not a society; what makes them into a society is among others things a shared or public morality. This is as necessary to its existence as an organized government. So society may use the law to preserve its morality like anything else essential to it.”

However, the point where Hart differed from Devlin is the area of private life, where Hart believed that the scope for the use of public morality was limited. Does this mean that the scope of use of public morality by the State as the basis for limiting individual freedoms is limited to public spaces? What is the position of the Indian civilization and the Constitution on the spaces and contexts in which public morality may be used as a legitimate restriction on individual rights? What constitutes public morality within the framework of the Indic civilizational worldview and what are its sources? These and other such questions will be addressed in the next few pieces.

J. Sai Deepak is an Advocate practising as an arguing counsel before the Supreme Court of India and the High Court of Delhi.

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Legally Speaking

Bail reforms in India: A clarion call

The fundamental contention of bail reforms in India is to convert the ‘court of law’ into ‘court of justice’. This is a grave concern especially when NCRB data reveals that over half of the trials in the country end in acquittal of the accused. The overall conviction rate in India at the end of 2017 was 48.8%. The rate of conviction in countries like UK, US, France, Japan and Singapore is more than 90%.

Feroz Pathan

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Laws should be like clothes, they should be made to fit the people they are meant to serve. Indian Constitution expressly enunciates India to be a ‘socialist’ nation. Justice-social, economic , and political & Equality of status and opportunity are one its vital cornerstones. The bail jurisprudence of India, however has not lived up to this core postulate. It’s high time that bail reforms in India are undertaken as an urgent desideratum to make it more realistic, practical, reasonable and to synchronize it with the objectives of criminal justice system.

A rigorous analysis of the Government statistical data portrays a grim scenario that 67.6 percent of the prison population in India is under-trial as on 31st Dec,2013 (NCRB). This amply infers that the provisions of sections on bail are not wellimplemented. Prisons in India are overcrowded to occupancy of 120 percent. This prison overcrowding leads to inhumane conditions of prisoners in jail and its antithetical to the ‘United Nations Standard Minimum Rules for Treatment of Prisoners’(The Mandela Rules). A jail inmate had written about these inhumane conditions in jail to Justice V.R.Krishna Iyer (Sunil Batra v. Delhi Adminstration, 1978 4 SCC 409). A majority of under-trials around 70.6 percent are illiterate or semi-literate. This categorically underlines the low socio-economic strata to which these under- trials belong. Moreover, the percentage of bail being granted to under-trials in India is also far lower than ideal, a mere 28 percent of the accused persons have been granted bail. Research has shown that out of two thousand accused persons released on bail , less than one percent have failed to appear before courts till the conclusion of the trial. Thus, liberalisation of bail system based on practical approach instead of an over scrupulous and overcautious one is advisable especially when 21 percent of population is living below poverty line(Planning Com mission press note on poverty estimates,2011-12, GoI, July 22,2013). The powerful, rich and influential class obtain bail promptly within no time, while the poor, underprivileged, downtrodden mass languish in jail as under-trials for years due to denial of bail. Reforming the criminal justice system in toto is a long run exercise , the reforms related to bail jurisprudence can however be taken up on a priority basis, at least, after the settled ruling of Supreme Court that “the normal rule is bail and not jail”(State of Rajasthan v. Bal Chand, AIR 1977 SC 2447)

The word ‘bail’ is derived from the old French word ‘bailllier’ which means to give or deliver. It’s also related to Latin word ‘bajulare’ meaning ‘to bear a burden.’ Bail is of ancient origin and has deep roots in English and American law. In medieval England, the custom of bail grew out of the need to free untried prisoners from disease ridden jails while they were waiting for the delayed trials to be conducted by the travelling justice. The concept of bail can be traced back to 339 BC. The circuit courts in Britain during medieval times had a system of bail in vogue.

The term bail has not been explicitly defined in Code of Criminal Procedure, 1973. The Lexico dictionary of Oxford defines bail as “the temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is lodged to guarantee their appearance in court.” While Wharton’s Lexicon dictionary defines bail as “ the setting free of the defendant by releasing him from the custody of law and entrusting him to the custody of his sureties who are liable to produce him to appear for his trial at a specific date and time. The literal meaning of ‘bail’ is surety (Sunil Fulchand Shah v. Union of India, AIR 2000 SC 1023) . SC has further elaborated on bail in the same decision by stating that “Bail is well understood in criminal jurisprudence and chapter XXXIII of the Code of Criminal Procedure that contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a nonbailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the court would still retain constructive contract that could still be exercised through the conditions of the bond secured from him. ” Thus primary object of bail is to secure the presence of accused before the court during trial and before the law enforcement agencies for interrogation and investigation during the trial.

Sections 436 to 450 of the Code of Criminal Procedure,1973 contains primary provisions relating to granting of bail and bonds. Section 2(a) of Cr. P.C. classifies offences as ‘Bailable’ and ‘Non-bailable’ and reads as under- “bailable offence means an offence which is shown as bailable in the First schedule or which is made bailable by any other law for time being in force, and ‘nonbailable’ offence means any other offence. It entails release of person on one’s own bond, with or without sureties. Section 2(c) of Cr.P.C defines ‘Cognizable offence’ as an offence in which , a police officer may, in accordance with the first schedule of Cr.P.C. , or under any other law for time being in force , arrest without warrant. Section 2(x) of the same code defines ‘warrant case’ as a case relating to an offence punishable with death , imprisonment for life or imprisonment for a period exceeding two years. In bailable offences , bail is matter of right for the accused while in non-bailable offences, it often becomes a matter of judicial discretion. This discretion cannot be bereft of the significant element of rights and dignity of individual (‘Taking Rights Seriously’ by Ronald Dworkin). Its expected of a pragmatic minded judge to use his discretion judiciously and not capriciously while granting, refusing or cancelling a bail after extending due consideration to the interest of victim, accused and the society at large i.e. all parties concerned (Dipak Shubhashchandra v. CBI, AIR 2012 SC 949)

Justice Krishna Iyer in Narasimhulu v. Public Prosecutor had emphatically remarked about Indian bail jurisprudence that – “ The subject of bail belongs to the blurred are of the criminal justice system and largely hinges on the hunch of the bench , otherwise called judicial discretion.” This antiquated concept of bail has some inherent handicaps and it will be myopic to argue that only monetary loss can act as a sole deterrent against accused fleeing from justice. Some other crucial and relevant factors such as socio-economic condition of accused, length of his residence in the community, employment status, reputation, character, criminal antecedents, the identity of responsible members of his community related to him, nature of offence, probability of conviction, nature of accusations, frivolity of prosecution, behavior of accused, his means and stand ing in society, his deep family ties, roots in community, job security, membership of stable organisations and many other factors regretfully don’t often move the court conscience. This may be a peculiar consequence of our adversarial system, albeit, it dampens the spirit of ‘distributive justice’ envisaged in the Constitution. The Hon’ble Supreme Court in the matter of State of Maharashtra Vs. Sitaram Popat Vetal has stated few factors to be considered for granting bail such as the nature of accusations and severity of punishment in case of conviction and nature of supporting evidence, reasonable apprehension of tampering of the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge.

The fundamental contention of bail reforms in India is to convert the ‘court of law’ into ‘court of justice.’ This is a grave concern especially when NCRB data reveals that over half of the trials in the country end in acquittal of the accused. The overall conviction rate in India at the end of 2017 was 48.8 percent. The rate of conviction in countries like U.K., USA, France, Japan and Singapore is more than 90 percent. There is thus dire need to relax the conditions of bail, timely examination of witnesses, ensuring presence of accused through video conferencing, fixing deadlines for conclusion of trials,and releasing under trials based on good behaviors must come within ambit of bail reform umbrella.

In majority of the cases in trial courts, magistrates or judges insist on pre-trial release only against bail with sureties. The amounts of sureties fixed are often so unreasonable and arbitrary that bail grant does more harm than good to the economically poor accused and his basic fundamental right of liberty under article Article 21 is thus at stake. Art 21 read with Article 39A(equal justice & free legal aid) guarantees every citizen protection of life and liberty irrespective of his caste, colour, creed and economic status. The article reads as- “No person shall be deprived of his life or personal liberty except according to procedure established by law.” The Article imposes procedural limitations on law that affects personal liberty. It commences as soon as interference with personal liberty commences and ends only when that interference ceases. Thus, when bail is denied by court, its an infringement of his personal liberty. Moreover, denying bail only because the accused is unable to furnish the arbitrary surety amount is like adding insult to his injury. What if tomorrow the same accused is completely exonerated of charges at the conclusion of his trial? The matter of bail is not merely a procedural right but a substantive fundamental right under Article 21.

In Hussainara Khatoon v.Home Secretary, AIR 1979 SC 1360 , the apex court had set a precedent when it had stated that pre-trial release on personal bond (i.e. without surety) should be allowed where the person to be released on bail is ‘indigent’ and there is no substantial risk of his absconding. Supreme Court had also ordered release of under trial prisoners whose period of incarceration had exceeded maximum period of imprisonment for their offences. It had expressed disappointment over failure of magistrates to adhere to section 167(2) of Cr.P.C. which provides for release of under trial prisoners on expiry of 60-90 days respectively. Jutice P.N.Bhagwati had emphatically observed in Hussainara Khatoon case that “Though speedy trial is not specifically enumerated as fundamental right, its implicit in broad sweep and content of Article 21. Under-trial prisoners languish in jail because they were down-trodden and poor, and not because they were guilty.” Most of the trial courts however are still seen adamant over monetary surety for release of under-trials on bail irrespective of their socio-economic condition. It’s incumbent upon court to consider ‘failure of speedy trial’ as one of the important factors for granting bail post Hussainara Khatoon judgement.

The Apex Court in Moti Ram v. State of Madhya Pradesh, AIR 1978 SC 1549 had observed – “It shocks one’s conscience to ask a mason, like the petitioner to furnish sureties for Rs.10,000. The Magistrate must be given benefit of doubt for not fully appreciating that our Constitution by “We the People of India” is meant for the butcher, the baker and the candle stick maker… shall we add the bonded labour and the pavement-dweller.” In this case, the Chief Judicial Magistrate had directed a poor mason to furnish surety and bond of Rs.10000. He had even refused to allow his brother to become a surety as his property was in the adjoining village . Supreme Court had further ruled that accused cannot be asked to furnish surety from his own district where he’s being tried for the alleged offence.

The callousness of state executives towards the plight of indigent under trials is evident from the case of Rudul Shah v. State of Bihar AIR 1983 SC 1086. In spite of acquittal of all the charges by the competent criminal court on 3rd June,1968, he was released from Mu zaffarpur jail only after 14 years i.e. on 16th October,1982. The State Government of Bihar, later through its officers produced an affidavit in Supreme Court that he was reported to be insane on the day of release. The jail authorities, however did not disclose any data related to medical diagnosis or evidence on the basis of which he was adjudged as insane neither they put forth the specific measures undertaken by jail authorities to cure him of affliction during those fourteen years, and what is more important, whether it took fourteen years to set right his mental imbalance. Hon’ble Supreme Court of India had directed Government of Bihar to pay the petitioner a sum of rupees thirty thousand in addition to rupess five thousand already paid by it. This dynamic move of the apex court resulted in the emergence of ‘compensatory jurisprudence’ for violation of right to personal liberty.

Section 440 of Cr.P.C explicitly cites that the amount of every bond executed shall be fixed with due regard to circumstances of the case and it shall not be excessive. The High Court or Court of Session may direct that the bail required by a police officer or magistrate be reduced. In Shankara v. State of Delhi administration 1996 Cr.LJ 43 , the High court of Delhi placed an obligation upon the state to take into consideration all the factors related to the accused. The conditions of bail were made lenient in this case. Any accused charged with minor offences were to be released on ‘personal bonds’ and those charged with serious offences were to be released on personal bond along with one surety to the amount of rupees one thousand only.

The expert committee on legal aid headed by Justice Krishna Iyer, in 1973 had submitted a report titled ‘processual justice to the people’ . It provides an alternative to the money bail system. It had recommended for the release without monetary sureties and to release on one’s own recognizance with punishment provided for violation. In his considered view, Justice Iyer had believed this system is beneficial in reducing the plight of poorer and weaker sections of society. Even the English parliament had vouched that bail must be reasonable in the Bill of Rights in 1689. During the reign of Henry II, the English crown had promulgated ‘Assize of Clarendon’, a legal code comprised of 22 articles. One of which had promised speedy justice to all litigants. USA had even enacted a Speedy Trial Act in 1974.

It’s the test of judicial prudence to grant bail, to deny it or to cancel it. The judge is however expected to bear in mind that not only the accused related factors only matter, but other factors such as offence related factors, victim related factors, society related factors , state related factors, change in circumstances during the trial, investigation and postconviction factors too play a crucial role in influencing the outcomes of bail. Moreover, the cardinal principle of criminal justice system is ‘an accused is innocent until proven guilty’ and ‘let hundred guilty be acquitted, but one innocent should not be convicted.’

When the offence is not grave and accused is poor, there’s no point in incarcerating him and bail should be granted leniently depending upon merits of the case. With bail denial, it’s not only Article 14, 21, and 22 that are jeopardized, but it hampers the chances of accused to prepare his robust defence against the prosecution. This is peculiarly devastating when his defence is against the state which is his unequal adversary. It fetters not only his person but also his chances of proving his innocence. Moreover, burden of his incarceration unduly causes harassment of his family members, especially in those families where accused is the sole bread earner. If accusations are leveled only to cause harassment and humiliation to the under-trial, denial of bail in such cases mars the probability of ‘legislating morality’ which should be the end point of any criminal justice system. The court must clearly comprehend the exact role of the accused in the case. The genuineness of the case has to be concluded through pragmatic prism. The judge has to ensure that prima facie case is made out or not. Exhaustive analysis of evidence, facts, and documents is not required at the stage of bail. Each case should be considered on its own merit.

Section 439 of Cr.P.C. gives special powers to High Courts or Court of Sessions regarding bail. High Court has concurrent jurisdiction with that of subordinate magistrates trying the case and not merely a revisional jurisdiction in matters of bail. A High Court or Court of Session may direct that any condition imposed by a magistrate when releasing any person on bail be set aside or modified or direct the release of any person accused of an offence and in custody on bail.

While dealing with cases of indigent, financially weak, infirm individuals, or women, courts should be liberal in releasing them on their personal recognizance. Arresting an accused should be last and least preferable option and it should be restricted to only cases of grave concern.  Moreover, detaining such large number of under trails in jails without them having proven guilty takes a heavy toll on the exchequer. Food, clothing, shelter, medical treatment, etc is provided to them out of funds of Government treasury. As per NCRB, the expenditure per inmate has increased by over 50 percent between 2010 and 2015. The average annual expenditure on a prison inmate has increased from Rs. 19,447 in 2010-11 to Rs.29,538 in 2014-15.

Amount of bail bond should be fixed depending upon financial viability of the accused, his probability of absconding, his solvency and not by merely adhering mechanically to the schedule. Enlarging category of bailable offences as classified under Cr. P.C. can also be a wise and welcome move. Providing free legal aid to the accused as envisaged in Art 39 –A before charge sheet is filed becomes vital for administration of justice. Inclusion of Section 436 A in Cr.P.C through Criminal Amendment Act of 2005 was laudable in terms of bail reforms. The section provides for releasing an accused on his personal bond (with or without sureties) one who has undergone up to one-half of the maximum period of imprisonment specified for his offence during the period of investigation, inquiry or trial. This provision is however not applicable for offences with a punishment of death sentence. The court will hear the public prosecutor before deciding upon the release of the accused and if satisfied by his arguments will order his continued detention or release on bail instead of personal bond with or without sureties.

The cherished objective of criminal justice system is that ‘every guilty person is punished and every innocent person is protected.’ The apex court has time and again criticized the impractical bail system by stating that ‘It’s a travesty of justice that many poor accused are forced into long cellular servitude for little offences because bail procedure is beyond their meager means. The deprivation of liberty for the reason of financial poverty only was held to be an incongruous element in a society aspiring for distributive social justice to all its citizens. Thus , the issue of bail reforms should be considered through multidimensional approach as law is a living and a dynamic concept that has to stand test of time. Rehabilitation and not retribution should be focus of the system, but its contours can be moulded by the legislature under the guidance and consultations of the judiciary. ‘Laws too gentle are seldom obeyed and too severe are seldom executed.’

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Legally Speaking

Maratha reservation: Would it be another Indra Sawhney case?

Manjunath Kakkalameli

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Since there was continuous demand for Maratha Reservation till 2018, it was however, deferred due to unwillingness of political parties. However, the act was introduced during BJP Government which granted 16% reservation for Maratha; however, the act had been challenged & the Hon’ble Bombay High Court upheld the reservation & allowed the reservation & reduced it to 12 per cent in education and 13 per cent in government jobs.

However, it has been again challenged before the Supreme Court ,as three-judge Bench of the Supreme Court on Wednesday referred a group of petitions challenging the Maratha reservation law to a Constitution Bench.

The Bench led by Justice L. Nageswara Rao found merit in the arguments made by senior lawyers that a larger Bench should examine the issue of reservation for the Maratha community. Chief Justice S.A. Bobde will constitute the Bench.

The court said the Maratha quota, meanwhile, will not apply for admissions and appointments made in the State for 2020- 21. However, the postgraduate admissions which have already been made will be left unaltered. In this back ground let’s see What is Maratha Reservation & why it has been challenged before Hon’ble Supreme Court.

THE MANDAL COMMISSION REPORT

The commission which listed 128 communities as backward, identified Marathas as ‘forward’. The Khatri Commission (1995) constituted by the Maharashtra government held by majority that Marathas may not be included as Kunbis in the list of OBCs, but recommended that people entered as Kunbi-Maratha or Maratha-Kunbi may be given the same benefits as the Kunbi caste. The request of treating Marathas at par with Kunbis was not accepted even in 2000 and Marathas were not included in the central Backward Classes list. In 2008, the Bapat Commission by a 4-2 majority recommended that it would not be proper to include Marathas among OBCs from the viewpoint of principles of social justice.

JUSTICE M.G. GAIKWAD COMMISSION: QUANTIFIABLE DATA

In 2017, the 11-member Maharashtra State Backward Class Commission (MSBCC) headed by retired Justice G M Gaikwad, a reference was made to the Maharashtra Backward Class Commission. When its chairman Justice S B Mhase passed away, he was replaced with Justice M G Gaikwad in November 2017. The Gaikwad Commission report submitted on November 15, 2018, found that Marathas are socially, educationally and economically backward and eligible to be included as a Backward Class.

The High Court expressed its satisfaction on the authenticity of the data in the report. The court also discussed at length through comparative tabular analysis why denial of Backward Class status to Marathas by earlier Commissions was wrong.

In social backwardness, the Gaikwad Commission found that 76.86% of Maratha families are engaged in agriculture and agricultural labour, around 70% live in kachcha dwellings, and only 35.39% have personal tap water connections. In educational backwardness, it found that 13.42% of Marathas are illiterate, 35.31% primary educated, 43.79% HSC and SSC, 6.71% undergraduates and just 0.77% postgraduates and professionally qualified. In economic backwardness, the Commission found that 93% Maratha families have an annual income of Rs 1 lakh; 37.38% families are Below Poverty Line against the state average of 24.2%, and 71% own less than 2.5 acres land.

MARATHA POPULATION IN MAHARASTRA

Based on its estimate of the Maratha population at 30% of Maharashtra’s total, the Commission had suggested for 12% and 13% reservation to Marathas but the state government of its own adopted 16% reservation. The Commission found that Marathas are about 30% of the state’s population. The court rejected the argument of the petitioners who had argued that 30% is not mathematically correct. If the population of SCs is 13%, that of STs is 11%, and that of OBCs as per Mandal Commission is 52% and if Maratha is added as 30%, it would take the total population over 100%, the petitioners had argued.

The Committee surveyed about 45, 000 families from two villages from each of 355 talukas with more than 50 per cent Maratha population. The report submitted on November 15, 2018, said that the Maratha community is socially, economically and educationally backward.

In social backwardness, the Commission found that around 76.86 % of Maratha families are engaged in agriculture and agricultural labour for their livelihood and nearly 70% reside in Kachha dwellings, and only 35- 39 % have personal tap water connections. Moreover, the report said that in 2013-2018, a total of 2,152 (23.56%) Maratha farmers died by suicide, against total 13, 368 farmer suicides.

The Commission also found that 88.81 % Maratha women are involved in physical labour for earning livelihood, besides physical domestic work they perform for the family.

In educational backwardness, it found that 13.42 % of Marathas are illiterate, 35.31 % primary educated, 43.79 % HSC and SSC, 6.71 % undergraduates and postgraduates and 0.77 % technically and professionally qualified. In economic backwardness, the Commission found that 93 % Maratha families have an annual income of Rs 1 lakh, which was below average income of middleclass families. Moreover, it found that 37. 38% families were Below Poverty line against the state average of 24% and 71% own less than 2.5 acres land, whereas only 2.7% big farmers own 10 acres of land.

THE BOMBAY HIGH COURT OBSERVATION ON MARATHA RESERVATION

The HC upheld & expressed satisfaction over the data and observed that the Commission had conclusively established the social, economic and educational backwardness of the Maratha community. It had also established inadequacy of representation of the Maratha community in public employment in the state.

On February 6 last year, a division bench of Justices Ranjit More and Bharati Dangre commenced hearing in petitions filed by advocate Rajashri Laxmanrao Patil and others. In April last year, the court closed the petitions for the verdict.

While ruling that the 16 per cent quota granted by the state was not ‘justifiable,’ the Bombay High Court on July 27 last year reduced it to 12 per cent in education and 13 per cent in government jobs, as recommended by the Maharashtra State Backward Class Commission.

The bench of Justice Ranjit More and Justice Bharati H Dangre observed that “We hold and declare that the limit of reservation should not exceed 50%. However, in exceptional circumstances and extraordinary situations, this limit can be crossed subject to availability of quantifiable and contemporaneous data reflecting backwardness, inadequacy of representation and without affecting the efficiency in administration.”

The Court had said that while the backwardness of the community was not comparable with SCs and STs, it was comparable with several other backward classes, which find place in the list of Other Backward Classes pursuant to the Mandal Commission.

THE EXISTING TOTAL RESERVATION POSITION IN MAHARASHTRA AFTER HC VERDICT?

A nine-judge bench of the Supreme Court, in the 1993 Indra Sawhney case, which is known as Mandal Commission case, had ruled that total reservation for backward classes cannot go beyond the 50%-mark. Maharashtra is one of the few states that are an exception to this.

In the state, following the 2001 State Reservation Act, the total reservation was 52 per cent. This included quotas for Scheduled Caster (13%), Scheduled Tribes (7%), Other Backward Classes (19%), Special Backward Class (2%), Vimukti Jati (3%), Nomadic Tribe B (2.5%), Nomadic Tribe C-Dhangar (3.5%) and Nomadic Tribe D-Vanjari (2%). The quotas for Nomadic Tribes and Special Backward Classes have been carved out of the total OBC quota.

With the addition of 12-13 per cent Maratha quota, the total reservation in the state is 64-65 per cent.

The 10 % Economically Weaker Sections (EWS) quota announced by the Centre last year is also effective in the state.

What made Hon’ble Supreme Court to refer the matter to Constitutional Bench: –

The Maharastra Socially and Educationally Backward Classes (SEBC) Act, 2018, provides for 12% and 13% quota to the Maratha community in education and jobs respectively, violates the principles laid in the case of Indira Sawhney v. Union of India (1992) as per which the Apex Court capped the reservation limit at 50%. The Bombay High Court,  while upholding the Maratha quota,  held that 16% reservation is not justifiable and ruled that reservation should not exceed 12% in employment and 13% in education a s r e c o m m e n d e d b y Backward Commission. The above observations were made by the Apex Court bench while referring the cases to larger bench as the interpretation of the provisions inserted by the Constitution (102nd Amendment) Act, 2018 is involved. 

One more notable observation was made during the hearing that the Court said that the question relating to the extent of reservation has already been decided in Indra Sawhney case, it cannot be termed as a substantial question of law as to the interpretation of the Constitution.

WHETHER THE MAHARASHTRA STATE HAS FAILED TO TREAT IT AS SPECIAL CASE

While observing exceptional grounds Supreme Court observes that social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent.

The Court Referring to Indra Sawhney judgment observed thus:

People living in far flung and remote areas not being in the mainstream of national life should be treated in a different way. In view of the conditions peculiar to them they are entitled to be given relaxation. It was made clear that extreme caution has to be exercised and a special case made out for relaxation of the rule of 50 per cent.

We are of the prima facie opinion that the State of Maharashtra has not shown any extraordinary situation for providing reservations to Marathas in excess of 50 per cent. Maratha community which comprises of 30 per cent of the population in the State of Maharashtra cannot be compared to marginalized sections of the society living in far flung and remote areas. The State has failed to make out a special case for providing reservation in excess of 50 per cent. Neither has any caution been exercised by the State in doing so.

WHETHER FACTORS WERE EXTRAORDINARY, WARRANTED AND EXCEPTIONAL

The Court prima facie observed that the High Court committed an error in treating the circumstances cited by the state as extraordinary, warranting relaxation of the strict rule of 50 per cent. It said:

The factors termed as extraordinary and exceptional, justifying reservations in excess of 50 per cent are those required for the purpose of providing reservations. The social, educational and economic backwardness of a community, existence of quantifiable data relating to inadequacy of representation of the community in public services and deprivation of the benefits flowing from reservations to the community are not exceptional circumstances for providing reservations in excess of 50 per cent. 

WHY INTERIM WAS NOT GRANTED

It was contended before the bench that once the matter is referred to a larger Bench, no interim orders can be passed by the referring court and it should be left open to the larger Bench to consider any interim relief. The Court, disagreeing with the said argument, observed that there is no absolute rule to restrain interim orders being passed when an enactment is ex facie unconstitutional or contrary to the law laid down by the Supreme Court. The bench said:

If the Court is convinced that the statute is ex-facie unconstitutional and the factors like balance of convenience, irreparable injury and Public Interest are in favour of passing an interim order, the Court can grant interim relief. There is always a presumption in favour of the constitutional validity of a legislation.

Unless the provision is manifestly unjust or glaringly un-constitutional, the courts do show judicial restraint in staying the applicability of the same19. It is evident from a perusal of the above judgment that normally an interim order is not passed to stultify statutory provisions. However, there is no absolute rule to restrain interim orders being passed when an enactment is ex facie un-constitutional or contrary to the law laid down by this Court.

Further court has observed that there is no bar per se for the referring Bench to pass interim orders while sending matters to a larger Bench. In Ashok Kumar Thakur (8) v. Union of India (supra), K.S. Puttaswamy v. Union of India (supra), M. Nagaraj v. Union of India (supra), S.V. Joshi v. State of Karnataka (supra), P.A. Inamdar v. State of Maharashtra 20 , and Modern Dental College & Research Institute v. State of Madhya Pradesh 21 , this Court passed interim orders while referring the matters to a larger Bench. In view of the above, the referring Court is not disabled from passing interim orders merely because the matter is referred to a larger Bench.

THE DOCTRINE OF BASIC STRUCTURE

There are many opinions, observations in many landmark judgments of the HC & SC & juries too. Every time the concept of basic Structure has been interpreted from the different angle.

However, the  Constitution of India has certain basic features  that cannot be altered or destroyed through  amendments  by the  Parliament of India. Key among these “basic features”, as expounded by Justice Khanna, are the fundamental rights guaranteed to individuals by the constitution. The doctrine thus forms the basis of the power of the Supreme Court of India to review and strike down constitutional amendments and acts enacted by the Parliament which conflict with or seek to alter this “basic structure” of the Constitution. 

In 1973, the basic structure doctrine was formally introduced with rigorous legal reasoning in Justice  Hans Raj Khanna’s decisive judgment in the landmark decision of Kesavananda Bharati v. State of Kerala. Previously, the Supreme Court had held that the power of Parliament to amend the Constitution was unfettered.[1] However, in this landmark ruling, the Court adjudicated that while Parliament has “wide” powers, it did not have the power to destroy or emasculate the basic elements or fundamental features of the constitution. Although Kesavananda was decided by a narrow margin of 7-6, the basic structure doctrine, as propounded i n J u s t i c e K h a n n a ’ s judgement, has since gained widespread legal and scholarly acceptance due to a number of subsequent cases and judgments relying heavily upon it to strike down Parliamentary amendments that were held to be violative of the basic structure and therefore unconstitutional. Primary among these was the imposition of a state of  emergency  by  Indira Gandhi  in 1975, and her subsequent attempt to suppress her prosecution through the 39th Amendment. When the Kesavananda case was decided, the underlying apprehension of the majority bench that elected representatives could not be trusted to act responsibly was perceived as unprecedented. 

THE CASES WHICH SET MARKS ON DOCTRINE OF BASIC STRUCTURE

Golaknath  case In 1967, the Supreme Court reversed its earlier decisions in Golaknath v. State of Punjab. A bench of eleven judges (the largest ever at the time) of the Supreme Court deliberated as to whether any part of the Fundamental Rights  provisions of the constitution could be revoked or limited by amendment of the constitution. The Supreme Court delivered its ruling, by a majority of 6-5 on 27 February 1967. The Court held that an amendment of the Constitution is a legislative process, and that an amendment under article 368 is “law” within the meaning of article 13 of the Constitution and therefore, if an amendment “takes away or abridges” a Fundamental Right conferred by Part III, it is void.

It amended the Constitution to provide expressly that Parliament has the power to amend any part of the Constitution including the provisions relating to Fundamental Rights. This was done by amending articles 13 and 368 to exclude amendments made under article 368, from article 13’s prohibition of any law abridging or taking away any of the Fundamental Rights. Chief Justice Koka Subba Rao writing for the majority held that:

• A law to amend the constitution is a law for the determinations of Article 13.

• Article 13 prevents the passing of laws which “take away or abridge” the Fundamental Rights provisions.

• Article 368 does not contain a power to amend the constitution but only a procedure.

• The power to amend comes from the normal legislative power of Parliament.

• Therefore, amendments which “take away or abridge” the Fundamental Rights provisions cannot be passed.

THE KESAVANANDA BHARATI VS STATE OF KERALA

Exactly after Six years later in 1973, the largest ever Constitution Bench of 13 Judges, heard arguments in  Kesavananda Bharati v. State of Kerala. The Supreme Court reviewed the decision in Golaknath v. State of Punjab, and considered the validity of the 24th, 25th, 26th and 29th Amendments. The Court held, by a margin of 7-6, that although no part of the constitution, including fundamental rights, was beyond the amending power of Parliament (thus overruling the 1967 case), the “basic structure of the Constitution could not be abrogated even by a constitutional amendment”. The decision of the Judges is complex, consisting of multiple opinions taking up one complete volume in the law reporter “Supreme Court Cases”. The findings included the following:

• All of the Judges held that the 24th, 25th and 29th Amendments Acts are valid.

• Ten judges held that Golak Nath’s case was wrongly decided and that an amendment to the Constitution was not a “law” for the purposes of Article 13.

• Seven judges held that the power of amendment is plenary and can be used to amend all the articles of the constitution (including the Fundamental Rights).

• Seven judges held (six judges dissenting on this point) that “the power to amend does not include the power to alter the basic structure of the Constitution so as to change its identity”.

• Seven judges held (two judges dissenting, one leaving this point open) that “there are no inherent or implied limitations on the power of amendment under Article 368”. Nine judges (including two dissentients) signed a statement of summary for the judgment that reads:

Golak Nath’s case is overruled.

1. Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution.

2. The Constitution (Twenty-fourth Amendment) Act, 1971 is valid.

3. Section 2(a) and 2(b) of the Constitution (Twentyfifth Amendment) Act, 1971 is valid.

4. The first part of section 3 of the Constitution (Twenty-fifth Amendment) Act, 1971 is valid. The second part namely “and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” is invalid.

5. The Constitution (Twenty-ninth Amendment) Act, 1971 is valid.

6. The ruling thus established the principle that the basic structure cannot be amended on the grounds that a power to amend is not a power to destroy.

THE NINTH SCHEDULE (ART 31B)

The ninth schedule especially refers to Art 31b of the constitution, which provides “Protective Umbrella” to the laws, enactments enlisted under the ninth schedule, cannot be challenged in the court. This amendment was specially made to shield the enactments from challenging in the court of law. There are almost 284 enactments are enlisted in the ninth schedule.

However, In Maharashtra, a voice is raising on as to why the Maratha reservation was not enlisted in the ninth schedule to protect it from challenging in the court of law.

However, having as discussed above, any enactments, laws which violates Fundamental Rights, the basic structure of the constitution, cannot be enlisted in the ninth schedule. Further it can be challenged & would be under the scrutiny of the Apex Court, even if it is scheduled.

In this background, as India Sawney case cannot allow reservation beyond 50% thus, by referring Maratha Reservation to Constitutional Bench, the bench has questioned on constitutionality of The Maharastra Socially and Educationally Backward Classes (SEBC) Act, 2018 on the ground of Exceptional, Extra ordinary circumstances.

Now, it would be interesting to see, further observation, submission of state of Maharashtra to uphold the constitutionality before constitutional Bench.

The Author is columnist, practising advocate at Bombay High Court.

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