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Milestone case: Kesavananda Bharati vs State of Kerala

A tussle between India’s two paramount democratic institutions—Parliament and judiciary.



If the Parliament had an autonomous right to amend the Constitution, the Apex Court had an equivalent power to review and annul any amendment that destroyed the basic structure of the Constitution. In this tussle for power between the two significant institutions, the Judges sought to achieve a win-win situation for both the Parliament and the Supreme Court.


India has often faced and still faces situations where the pillars of its democracy clash. Kesavananda Bharati vs. State of Kerala (Kesavananda) was one such situation where the Legislature and the Judiciary of the world’s largest democracy ran in a power struggle. In the background of a tussle for constitutional supremacy, the Hon’ble Supreme Court of India on April 24, 1973 delivered what is arguably the most monumental decision in the history.

Kesavananda created history, I say this because of several reasons, viz. formation of a thirteen-judge bench of the Hon’ble Supreme Court of India, the unprecedented number of separate judgments and opinions delivered by the Bench, the number of hearings which ran into over 68 days making it the longest heard case in the history of Indian Judiciary, (the second longest being the Ram Janmabhoomi case 2020 – about 40 days), as well as the sheer length of the Judgment itself which spans about 800 pages and about 4,20,000 words long.

The significance of Kesavananda in the Constitutional Law of India is not only because of its exceptional length but also because of the part it played in preserving the integrity of the Constitution of India. The ‘basic structure’ doctrine as we see it today was first introduced in this landmark judgment. To analyse Kesavananda it is really important to first briefly understand the cases which led up to this Judgment in 1973.

Shankari Prasad v. Union of India (1951)

The validity of first amendment to the Constitution of India which condensed the privilege to property was challenged and with that, the Parliament’s right to amend the fundamental rights was challenged. A Five-Judge Bench of the Hon’ble Supreme Court of India asserted that the Constitutional scheme provided for a clear distinction between ‘ordinary law’ and ‘constitutional law’, the effect of this decision was that judicial review of the amendments to the Constitution was dis-allowed.

Sajjan Singh v. State of Rajasthan (1965)

The validity of the Seventeenth Amendment Act, 1964 that inter-alia added 44 additional Statutes relating to land reforms to the Ninth Schedule of the Constitution in order to secure their Constitutional Validity and prevent them from judicial review on the ground that they were inconsistent with any of the Provisions of Part III of the Constitution relating to Fundamental Rights. The Amendment was challenged on the ground that the Parliament failed to follow the procedure prescribed to amend the Constitution. Another FiveJudge Bench of the Hon’ble Supreme Court dismissed the petition on the ground that it was not under the scope of judicial review and held that amendment includes amendment to all provisions of the Constitution.

I.C. Golaknath v. State of Punjab (1967)

Could the Parliament amend fundamental rights? The issue was yet again before the Hon’ble Supreme Court . An Eleven-Judge Bench was constituted to examine whether Constitutional amendments could be passed to take away the fundamental rights and whether such amendments were under the scope of judicial review. Hon’ble Supreme Court of India prospectively overruled its judgment in Shankari Prasad and Sajjan Singh and held that Parliament could not amend Part III of the Constitution so as to abridge or take away any of the Fundamental Rights.

The Hon’ble Supreme Court also cleared the air with respect to Article 368 and held that it merely lays down the procedure for amendment to the Constitution. Further, the Hon’ble Court also held an amendment to be a law under Article 13(2) of the Constitution and that it was under the scope of judicial review. Thus, making it quite clear that amendments which ‘take away or abridge’ the Fundamental Rights, cannot be passed.

What is interesting to note is that the tussle between the two pillars of our Constitution continued as the Parliament to nullify the I.C. Golaknath verdict, enacted the Twenty-Fourth Amendment to the Constitution, which laid down that the Parliament’s powers to amend the Constitution were unrestricted and unlimited.

Leading to Kesavananda

Late Swami Kesavananda Bharati Sripadagalvaru, the head of Edneer Math in Kerala affected by the Kerala Land Reforms Act, 1963 challenged the state land reform legislation in Kerala, meanwhile the Parliament passed the Twenty Ninth Amendment Act 1972 which inserted certain land reform statutes to the Ninth Schedule and thus affecting the case of Late Swami Kesavananda Bharati.

Swami Kesavananda was represented by none other than Late Shri Nani Palkhivala, who challenged the constitutional validity of the Twenty-Fourth, Twenty-Fifth and Twenty-Ninth Amendments to the Constitution of India.

As I have already mentioned, the Twenty-Fourth Amendment was enacted to nullify I.C. Golaknath as the Parliament vide this Amendment stated that the constitutional amendments were not ‘law’ under Article 13, and that the Parliament had the power to amend any provision of the Constitution of India. The Twenty-Fifth Amendment gave precedence to ‘Directive Principles of State Policy’ over the ‘Fundamental Rights’ and also took away the scope of Judicial Review for policies laid down under Articles 39 (b) and 39 (c). And, the Twenty-Ninth Amendment added two land reform legislations to the Ninth Schedule of the Constitution of India.

Issues before the Hon’ble Supreme Court of India

The unprecedented Thirteen-Judge Bench of the Supreme Court of India had to decide some of the most crucial questions regarding the scope of the powers of the Parliament to amend the Constitution under Article 368, and whether those powers of the Parliament were autonomous, or there was a scope of judicial review. Quite ironically it was a judicial review of the scope of judicial review of the Apex Court of India which lasted for almost five months. The Petitioners had contended that the amendments invalidated some of the fundamental and basic principles of the Constitution and the Parliament could not derive the authority to alter such principles of Constitution from the Constitution itself. However, at the other end, the Government of India argued that there was no limit to the powers of the Parliament to amend the Constitution pursuant to Article 368 and the Parliament could do anything barring repealing the Constitution itself. Hence, it became all the more important for the Apex Court to examine the amending powers of the Parliament and to determine the constitutional validity of the amendments.

‘Basic Structure’ Doctrine and the Majority

View An unprecedented eleven separate opinions each having different views on each issue, suggesting that there was no pure indication as to what the Supreme Court actually held. Interestingly, the first time ever the Judges gave a summary of their decision.

The majority of the Thirteen-Judge Bench held that the Twenty-Fourth Amendment to the Constitution was valid, the Twenty-Fifth Amendment to the Constitution was also valid except for the part which ousted the scope of Judicial review, the Twenty-Ninth Amendment was also held to be valid, the judgment in I.C. Golaknath was overruled and it was held that there was no implicit limitation on the powers of the Parliament to amend the Constitution of India under Article 368.

However, the most important decision, was that the Parliament while amending any part of the Constitution could not alter or destroy the ‘basic structure’ of the Constitution. This decision was made by a thin majority of 7:6. The Hon’ble Supreme Court mentioned that all constitutional amendments enacted post the date of Kesavananda Judgment will have to pass the ‘Basic Structure’ doctrine. Thus, in this tussle of power, the Apex Court empowered itself to judge the validity and constitutionality of the amendments to the Constitution.

What’s interesting is that there was no concord of opinion on what the basic structure was. Each Judge prepared his own list which was not exhaustive. However, in outlining the basic structure of the Constitution, most relied upon the Preamble, the Fundamental Rights and the Directive Principles of State Policies. In words of Mr. Upendra Baxi, in this Judgment of uncertainties one thing was certain that the Judges were free to mould the ‘Basic Structure’ doctrine to struck down any constitutional amendment that attacks the very spirit of the Indian Democracy.

Observations & Analysis

It can be said that while the Judgment in I.C. Golaknath was first major indication of judicial supremacy. Kesavananda proved and established that the Apex Court had no match when it comes to authority in Constitutional matters. The Hon’ble Supreme Court drastically widened the scope of its judicial review assuming the power to examine not only the amendments affecting fundamental rights but all the constitutional amendments.

If the Parliament had an autonomous right to amend the Constitution, the Apex Court had an equivalent power to review and annul any amendment that destroyed the basic structure of the Constitution. In this tussle of power between the two significant institutions, the Judges sought to achieve a win-win situation for both the Parliament and the Supreme Court.

One of the gravest criticisms of Kesavananda is that the ‘Basic Structure’ doctrine finds no reference in the language of the Constitution. The doctrine has very little to do with what is written in the Constitution. The Judgment has also been critiqued for being too lengthy, thus making it doubtful as to what the eleven opinions collectively mean and what the basic structure essentially comprised. Amusingly it is referred to as an ‘outstanding study on lack of consensus’.

The intrinsic uncertainty of the doctrine, as well as that of the ratio in Kesavananda, brought about numerous challenges both to and under the doctrine before the Hon’ble Supreme Court. The phase following Kesavananda was one where the doctrine has evolved on a case-to-case basis, resulting in a steady development of the doctrine.

The Hon’ble Supreme Court in Indira Gandhi v. Raj Narain , struck down a Constitutional amendment which tend to legalise the then Prime Minister Indira Gandhi’s election citing the basic features of democracy, rule of law and equality. The Parliament, through the Forty-Second Constitutional Amendment, tried to circumvent Kesavananda by making Parliamentary power unlimited. The Hon’ble Supreme Court in Minerva Mills v. Union of India struck down the amendment on the ground that the judicial review of Parliamentary legislations, and the limitation of Parliamentary power to amend the Constitution, were themselves part of the basic structure of the Constitution.

The courts have construed and long drawn out the doctrine to include secularism and federalism , the freedoms under Article 19, judicial review of decisions by the High Court and Supreme Court under Articles 226 and 32, judicial independence , judicial primacy in the judicial appointment process to the basic structure of the Constitution.

More importantly, the Hon’ble Supreme Court in I.R. Coelho v. State of Tamil Nadu had come across the issue whether an addition to the Ninth Schedule would give immunity to the listed statute from the requirement of being consistent with the fundamental rights. The Hon’ble Supreme Court held that all laws were subject to the test of being consistent with fundamental rights, which are a part of the basic structure.


Though the Kesavananda does not find approval with those who have been brought up with the conventional concept of judicial review, even cynics would admit that it was the Judiciary’s rescue operation that saved Indian democracy.

What India faced in 1973 was a struggle of supremacy between the Hon’ble Supreme Court and the Parliament. Kesavananda created a check on Parliament’s endeavour to wipe out judicial review and strive for unconditional power to amend the Constitution. However, it allowed Parliament the extensive liberty to carve out socio-economic policies.

Before Kesavananda, almost 30 Constitutional amendments were already passed since the Constitution came into effect in 1950, and there have been about 74 amendments since Kesavananda. Regardless of, the large number of amendments made to the Indian Constitution, the expectations and philosophies of its framers remain integral and perceptible as the Constitution adopted by the Constituent Assembly in 1949 and this is principally owed to the Apex Court’s decision in Kesavananda.

However, one thing that triggered me when I was a law student was that even after a 800 page judgment and discussions running over 68 days the petitioner Swami Kesavananda Bharati did not actually win the case, as the Amendments he challenged were held to be valid by the Hon’ble Court, but what he won was a name in the History of Indian Constitutional Law. May his soul rest in peace!

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Legally Speaking

Verbal cruelty in marriage

Pinky Anand



Marriage is a union of two people. It is oft repeated and probably one of the most recognized advice about marriage that we receive. It is probably only topped by the statement ‘Marriage is a compromise’. Its strange to me, that what is considered a divine union of two people is also considered a compromise, but facts rarely lie. It is true that I have seen maybe a little bit more than my fair share of divorces and pushed some along the way, and maybe that is why probably I can say that I might be in a slightly better position to extrapolate on marriage and its various facets.

At the base of it, marriage is two individuals and very often their families trying to create a cohesive unit. The problem comes, as it does in almost all other human interactions, when people are not compatible. We bring two individuals, sometimes from various different backgrounds and a different value system into a bond where they are expected to not just like each other, but societally expected to love each other till death do them part. Very often it works, marriages are without doubt the foundation of our society, the basic unit on which our cultures function and they are essentially the same in all cultures, mostly monogamous and come with societal expectation of a family.

But what about when it does not work. It is almost impossible for every couple to get along with each other, especially when very often the couple themselves seem to have little to no say in whom they marry. The individual expectations give way to what your family thinks is the best match, or even if you choose your partners yourself, young couples are sometimes woefully ill informed of what a marriage actually is beyond the honeymoon phase.

Today marriage is under a scanner, much deeper than it has probably ever been. In my humble opinion we are now at a stage where we are trying to box conversations and categorise them into ‘cruelty’ or ‘not cruelty’. The latest judgment isolated reporting of the Kerala High Court stating that ‘comparing wife to other women is mental cruelty’ gives credence to my statement. A bare reading of the judgment will ensure that the reader knows that the question before the court was not simply the fact that the husband was comparing his wife to other women.


Cruelty is an extremely subjective term, which on one hand is clear as day, specially when there is incidence of physical abuse, or mental cruelty in the form of abusive language or coercive control of women, on the other end it is hazy. Cruelty can be anything perceived as being cruel. Essentially it would depend on the dynamics of the couple themselves, over what they are willing to adjust to, or compromise with. I have seen women, who although do not like that their husbands compare them with other woman, do not really consider this as a dealbreaker. It is probably for this reason itself that the legislature in its wisdom has refused to quantify and define what cruelty is. It has left it to the wisdom of the courts to decide on a case to case basis of what might constitute mental cruelty. As has been done by the Kerala High Court, where the lady in question had been married for 13 long years but had stayed in the matrimonial relationship only for 1 month. When we read this judgment we realise that rather than just interpret this one statement of the husband, the Court was looking into an entire relationship that started in 2009, it looked at various allegations including non consumation of the marriage.

The first interpretation for cruelty and what might constitute cruelty was given by the Supreme Court in Sobha Rani vs Madhukar Reddi (1998) 1 SCC 105 where the Supreme Court while dealing with cruelty under Section 13(1)(i-a) of the Hindu Marriage Act opined that although the provision does not define cruelty, cruelty may mean physical or mental cruelty. In Samar Ghosh Vs Jaya Ghosh (2007) 4 SCC 511 it was further extrapolated that cruelty cannot contain within its ambit differences between the couple because those arise in day to day matrimonial life.

As society and its dynamics have changed, so have the Courts’interpretation of cruelty. What initially was considered to only be physical cruelty has now morphed into an interpretation where divorce on the grounds of cruelty may be given on the basis of mental cruelty. In these cases, the Courts will consider the entire background of the marriage and its various facets and try to understand how the action alleged to be cruel has affected one of the spouses. Instances which have been identified as cruelty range from adultery to calling the spouse fat, asking the spouse to live separate from his old aged parents, public embarrassment and humiliation amongst others.

The need for the Courts to enter such private conversations comes from the fact that India believes in the ‘fault’ theory for divorces, which essentially means that to get a divorce one party has to be at fault in the marriage. It is only under these specific ‘faults’ as enumerated under the Acts that divorces can be granted except when petitioning for divorce by mutual consent. The problem with fault theory is that it takes away from the fact that the breakdown of a marriage is not necessarily due to a fault. It refuses to recognize the idea of ‘irretrievable breakdown’. What happens in these matters is that very often the Courts in their equity and justice try to grant the parties divorce, couching specific acts as ‘cruelty’, and while appropriate for those specific and particular cases, they are not suitable as precedent. Since the High Courts and the Supreme Court judgments become binding on lower courts, this creates a difficulty in interpreting the law or an action as ‘cruelty’ when sometimes it is just a disagreement between couples. This is further exacerbated by the media reporting only the ‘juicy’ bits of the judgment as has been done in the case of the Kerala High Court judgment.

As our society advances, and our laws are interpreted dynamically, I believe we as individuals and as a society should admit that sometimes marriage do not work, not due to faults, but simply because the individuals needs and choices are different from their spouses. It is time for us to understand and recognize that marriages are not made in heaven, they are made on earth amongst humans and sometimes they break down.

The author has served as the Additional Solicitor General of India.

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Legally Speaking


The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs 15,85,000 compensation to the bereaved mother by the Claims Tribunal.



The Himachal Pradesh High Court in the case United India Insurance Company Ltd v. Smt. Sumna Devi recently observed that merely because the claimants were unable to produce documentary evidence to show the monthly income of the deceased and the same should not justify for adoption of lowest tier of minimum wage while computing the income.

The bench comprising of Justice Jyotsna Rewal Dua observed while deciding the appeal preferred by an insurance company against award of Rs. 15,85,000/- compensation to the bereaved mother by the Claims Tribunal.

It was observed that the Tribunal had assessed deceased’s monthly income as 10,000/- whereas the Appellant argued that in absence of any documentary evidence to show the deceased’s income and as per the minimum wage rate, i.e., Rs. 7,000- per month, the award must be calculated.

Further, the deceased’s mother informed the Court that her son was earning Rs. 10,000/- per month only from agricultural pursuits. It was submitted by her that he had completed two-year NCVT course in Mechanic (Motor Vehicle) Trade and would have definitely earned much more than Rs. 10,000/- per month, had he lived.

It was noted by the court that where the deceased had an NCVT CTS course diploma in Mechanic (Motor Vehicle) Trade from a Government Industrial Training Institute and was also carrying out agricultural works, Rs. 10,000/- per month has been correctly assessed as his income which he would have earned on attaining the age of 25 years.

The court placed reliance on Chandra alias Chanda alias Chandra Ram & Anr. vs. Mukesh Kumar Yadav & Ors., wherein it was held that in absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one for fixing the income of the deceased. Thus, in absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the deceased income should not be totally detached from reality.

Accordingly, the court dismissed the petition.

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The Gujarat High Court in the case Rameshbhai Bhathibhai Pagi v/s Deputy Executive Engineer observed and has reiterated that once a Labour Court comes to the conclusion that Sections 25F, G and H of the Industrial Disputes Act have been violated and reinstatement of workman ought to follow.

The bench comprising of Justice Biren Vaishnav observed while hearing several petitions challenging the Labour Court’s order wherein compensation of Rs. 72,000 was awarded to each of the workmen-Petitioner rather than reinstatement with back wages.

It was submitted by the petitioner that their services were put to an end in August 2010 without following the procedure and without awarding compensation. It was pleaded by them that there was a clear violation of Sections 25(G) and (H).

However, the court stated that the Labour Courts had found the termination bad for each of the petitioners. While drawing an adverse inference against the Respondents, it has been awarded by the Labour Court the compensation which was meagre in the eyes of the petitioner, even as work was available. The Court observed that the Reliance was placed on Kalamuddin M. Ansari vs. Government of India, wherein similar facts and circumstances, the High Court ordered reinstatement of employees with continuity of service and had set aside the order of compensation.

The decision of the Labour Court was supported by the AGPs on the ground that there was a delay in raising the dispute. Further, the work had been outsourced at the canal. Therefore, the reinstatement was not possible.

The bench of Justice Vaishnav noted that the Labour Court had clearly concluded that there was a violation of sections 25(F), (G) and (H) of the ID Act. The only question raised was weather the Labour Court should have fallen short of awarding reinstatement with or without backwages.

In the present case, reference was made to Gauri Shanker vs. State of Rajasthan, wherein order of Labour Court had been modified by the Supreme Court of granting compensation in lieu of reinstatement. Further, Justice Vaishnav recalled the following observations of the Top Court:

The Division bench and the learned Single Judge under their supervisory jurisdiction should not have modified the award by awarding compensation in lieu of reinstatement which is contrary to the well settled principles of law laid down by this Court, in catena of cases.

Keeping in view the fact and the precedents that compensation would be detrimental to the Petitioners who had worked for more than 20 years. The order of the Labour Court was modified by the High Court of granting lump-sum compensation and ordered the employer to reinstate the workmen in service with continuity of service.

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On Sunday, the Central Government notified the appointment of 11 advocates as Additional Judges of the Punjab and Haryana High Court.

The Advocates appointed as additional judge of Punjab and Haryana High Court are namely:

1. Nidhi Gupta,

2. Sanjay Vashisth,

3. Tribhuvan Dahiya,

4. Namit Kumar,

5. Harkesh Manuja,

6. Aman Chaudhary,

7. Naresh Singh,

8. Harsh Bunger,

9. Jagmohan Bansal,

10. Shri Deepak Manchanda,

11. Alok Jain

The present appointment will take the actual strength of the High Court to 57 judges against a sanctioned strength of 85.

The judges have been appointed for a period of two years with effect from the date they assume charge of their respective offices, an official notification read.

In its meeting held on July 25, 2022, the Supreme Court Collegium headed by Chief Justice of India NV Ramana had recommended the names of these 11 advocates for elevation as Additional Judges of the Punjab and Haryana High Court.

In 2021, the appointment tally in High Courts was 120 in addition to 9 appointments in the Supreme Court. However, the entire appointment process in higher judiciary has been put on a fast track.

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The Kerala High Court in the case Dr K P Hamsakoya vs Union Territory of Lakshadweep observed and granted an anticipatory bail to a senior doctor who has been accused of posting on facebook defamatory articles against officers of the Administration of Lakshadweep.

The bench comprising of Justice Viju Abraham observed and was essentially dealing with the pre-arrest bail plea of Dr. K P Hamsakoya, who is one of the senior-most doctors serving the Lakshadweep Administration and that presently, he is under suspension.

The Court observed that Dr. Hamsakoya has been accused of posting defamatory articles on Facebook against officers of the Administration of Lakshadweep, thus causing a negative effect amongst the public against the Administration. He has been booked under Sections 505 (1) (b), 505 (2) and 500 of the IPC and Section 66 (A) (b) of the Information Technology Act.

Before the Court, the Counsels Ajit G Anjarlekar, G.P.Shinod, Govind Padmanaabhan, and Atul Mathews appearing argued that he has been falsely implicated in the case and has been booked under the offence punishable under Section 66 (A) (b) of the IT Act (a provision which has been struck down in its entirety by the Apex Court).

It was contended by the court that the offences under Section 500 IPC cannot be registered without a complaint being filed by a person who has been defamed.

The Court while considering the facts and circumstances of the case and the nature of the allegations, the pre-arrest bail was granted by the court to the petitioner and the court dismissed his plea with the following directions:

On August 29, 2022, the petitioner shall surrender before the investigating officer and shall co-operate with the investigation.

The court stated that in the event of the petitioner, he shall be produced before the jurisdictional Magistrate and shall be released on bail on his executing a bond for Rs.50,000/- with two solvent sureties each for the like sum as per the satisfaction of the jurisdictional Court.

It was stated by the court that if any of the aforesaid conditions are violated, the Investigating Officer of Minicoy Police Station, Union Territory of Lakshadweep has been given the liberty to file an application for cancellation of bail before the jurisdictional court.

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The Gujarat High Court in the case Oza Nikun Dashrathbhai v/s State Of Gujarat observed and has come to the rescue of D.Pharm students who were denied registration as ‘Pharmacist’ by the State Pharmacy Council on the ground that they have not undertaken training from medical stores approved the Pharmacy Practice Regulations, 2015.

The Single bench comprising of Justice AS Supehia observed and noted that the Pharmacy Council of India has not approved any medical store under the Regulation for the purpose of imparting practical training of Diploma to the students in Pharmacy Course like the present petitioners.

Court Observations:

It was observed that the petitioners cannot be faulted for the action of the respondent authorities in not approving the medical stores under regulation 4.4 of the Regulation of 2015 and hence, no option was there to the petitioner to take their training from the respective medical stores.

It was claimed by the petitioner’s student that the State Council was not registering them as Pharmacists despite having undertaken the necessary training of 500 hours for three months from the respective medical stores.

Further, it was observed that the State had admitted that all documents of the Petitioners were genuine, however, the registration was denied solely for the aforesaid reason. Further, one of the governmental circulars had clarified that the process for granting approval of Chemist/ Pharmacy and Druggist will be notified through the online mode. But the same was targeted only at “prospective students” .

It was noted by the High Court that in order to avoid hardship to current students, who had already undergone or undergoing the D.Pharm course while taking the practical training under the Pharmacy, Chemist and Druggist licensed under the Drugs and Cosmetics Act, 1940, as per precedence students will be considered for the registration, provided the students had undergone the D.Pharm course in an institution approved under PCI under section 12 of the Act.

Accordingly, the High Court directed the State Council to register the Petitioners as Pharmacists within three months.

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