57 Landmark Constitutional Cases: Complete Notes

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These notes cover the 57 most important cases of Indian Constitutional Law. They are the cases that keep coming up in LL.B. examinations, in judiciary examinations and in every serious discussion of constitutional law.

Every case is studied in the same pattern:

1. How the matter began (background and facts).
2. The real constitutional question before the Court (issues).
3. The arguments on both sides.
4. The Court's reasoning and the final judgment.
5. How the case changed the law (significance and later developments).
6. How to write about it in the examination (exam points).

The cases are not arranged topic-wise. One case deals with the appointment of judges, the next with Article 21, another with reservation, another with Parliament's amending power. This mirrors the examination, where questions also come mixed. Wherever two cases are connected, the connection is pointed out.

Case 1: S.P. Gupta v. Union of India (1981)

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The judgment in S.P. Gupta v. Union of India came at the end of 1981. The case is also called the First Judges Case.

It deals with a basic question: who will appoint judges in India, and in that process how strong the voice of the judiciary will be and how strong the voice of the executive will be. It looks like a procedural question, but it is really a question about the independence of the judiciary, because whoever controls appointments can influence the judges.

Background: the constitutional provisions

The Constitution runs on the idea of separation of powers:

• the legislature makes the law;
• the executive implements it;
• the judiciary interprets it and decides disputes.

Each organ should work in its own space and not interfere in the work of the others. The appointment of judges is one area where the executive and the judiciary come face to face.

Provision	Appointment of	What it requires
Article 124(2)	Judges of the Supreme Court	Appointment by the President after consultation with such judges of the Supreme Court and the High Courts as the President considers necessary. For any judge other than the Chief Justice, consultation with the Chief Justice of India is always necessary.
Article 217(1)	Judges of a High Court	Appointment by the President after consultation with the Chief Justice of India and the Governor of the State. For judges other than the Chief Justice, the Chief Justice of that High Court is also consulted.

Facts

• In 1981, several petitions were filed in different High Courts, many of them by practising advocates. These petitions were later transferred to the Supreme Court.
• There was a major controversy over two issues:
  1. The Law Minister's circular: a circular by the Union Law Minister asked additional judges of the High Courts to give their consent in advance to being appointed to another High Court. Many felt this was a way of pressuring judges through the fear of transfer.
  2. Non-extension of additional judges: the term of some additional judges was not extended. The case of Justice S.N. Kumar of the Delhi High Court was the most discussed.
• The petitioners argued that the whole appointment process was slipping into the control of the executive, that the role of the judiciary had been reduced to a mere formality, and that if this continued, the independence of the judiciary would be in danger.

Bench

The matter went before a seven-judge bench. The size of the bench itself showed how serious the matter was, since it directly touched the independence of the judiciary and the appointment system. The opinion of Justice P.N. Bhagwati is the one most widely read and quoted.

Issues

1. What does "consultation" mean? Does it mean only taking advice, or is it also necessary to accept that advice?
2. Is the appointment of judges essentially an executive function of the President? Can the President, acting on the advice of the Council of Ministers, make the appointment even while ignoring the opinion of the judiciary?
3. If the executive has this much control over appointments, does it break the principle of judicial independence and separation of powers?

Arguments

Petitioners	Government
Consultation must mean real and effective consultation.	The Constitution gives the power of appointment to the President.
The opinion of the Chief Justice of India should have primacy.	Under Article 74, the President acts on the aid and advice of the Council of Ministers.
Otherwise the executive would simply place people of its own choice on the bench.	The word "concurrence" is nowhere written in the Constitution; only the word "consultation" is used.

Judgment (held)

The majority held that consultation does not mean concurrence.

Consultation	Concurrence
Honestly seeking advice after placing the full information on the table.	Agreement: the President would have to accept the opinion of the judiciary.
Mandatory for the President; must be full and effective.	Not required: the advice of the judiciary is not binding on the President.

• Consultation with the judiciary is mandatory for the President, and it must be full and effective.
• The final decision rests with the President, based on the aid and advice of the Council of Ministers.
• The Constitution contains no provision giving the opinion of the Chief Justice of India primacy over the opinions of the other consultees.
• Consultation is an important safeguard, but ultimate authority remains with the executive.

The Court's reasoning in four points

1. The appointment of judges is primarily an executive function.
2. The President makes the appointment, but consulting the judiciary is mandatory.
3. The advice of the judiciary is an important safeguard, but it is not binding.
4. This arrangement matches the overall framework of the Constitution, in which the President and the Council of Ministers play the central role.

The Court did accept that if the executive's decision were mala fide, or based on irrelevant considerations, it could be challenged.

Two further holdings often missed by students

1. Locus standi and public interest litigation

• The government asked what personal interest these advocates had in the matter.
• The Court held that lawyers have a deep interest in the independence of the judiciary, so they could bring the petition.
• Justice Bhagwati laid down that when a poor or weak person cannot approach the court themselves, any aware member of the public can approach the court on their behalf.
• For this reason, S.P. Gupta is counted among the foundational cases of public interest litigation.

2. Open government and the right to know

• The government tried to withhold correspondence relating to appointments by claiming privilege over it.
• The Court ordered disclosure.
• It held that the right to know is implicit in the freedom of speech and expression under Article 19(1)(a).
• Open government is the rule, and secrecy is the exception.

Principle / ratio

Significance and later developments

The decision strengthened the executive's control over appointments and reduced the role of the judiciary to something merely advisory. Questions were soon raised: if the executive alone decided who would become a judge, the impartiality of judges could be in danger. This led to the later Judges Cases.

In 2014, Parliament passed the Ninety-ninth Constitutional Amendment and the National Judicial Appointments Commission Act, so that a commission would make appointments in place of the collegium.

Case	Year	Bench / majority	Outcome
First Judges Case (S.P. Gupta)	1981	Seven judges	Consultation is not concurrence; primacy with the executive
Second Judges Case	1993	Nine judges	S.P. Gupta overruled; primacy to the Chief Justice of India with senior-most colleagues; collegium born
Third Judges Case	1998	Presidential reference under Article 143	Collegium: CJI + 4 senior-most judges (Supreme Court); CJI + 2 senior-most judges (High Courts)
Fourth Judges Case	2015	Majority 4:1 (Justice J. Chelameswar dissenting)	Ninety-ninth Amendment and NJAC Act struck down; judicial independence is basic structure

Whenever the collegium versus commission debate comes up, S.P. Gupta is part of it. The case shows that the interpretation of the same constitutional word can change over time: in 1981 "consultation" meant taking advice; by 1993 the same word was read as giving primacy to the judiciary.

Exam points

Case 2: Anuradha Bhasin v. Union of India (2020)

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The judgment in Anuradha Bhasin v. Union of India came on 10 January 2020. It strengthened the foundation of digital rights in India. Its message: the internet today is not a luxury. Speaking, writing and carrying on one's trade or profession through the internet all fall within the protection of Article 19.

Background

• In early August 2019, the Home Department of the Civil Secretariat of Jammu and Kashmir issued a security advisory telling tourists and Amarnath pilgrims to cut short their stay and return as soon as possible.
• An order followed shutting down educational institutions and offices until further orders.
• On 4 August 2019, all three services, internet, mobile and landline, were shut down.
• On 5 August 2019, the President issued Constitution Order 272. With this, the process of making Article 370 inoperative began and the special status of Jammu and Kashmir came to an end.
• In the name of security, Section 144 of the CrPC was imposed in many areas.

Facts

• The biggest impact of the restrictions fell on journalists.
• The petitioner, Anuradha Bhasin, was a senior journalist and the executive editor of Kashmir Times.
• Because of the communication blackout, the Srinagar edition of her newspaper could not even be printed or distributed.
• She filed a petition directly in the Supreme Court under Article 32, alleging violation of her fundamental rights, in particular:
  • Article 19(1)(a): freedom of speech and expression;
  • Article 19(1)(g): the right to carry on one's profession, which for a journalist is her very work.
• The petition of Ghulam Nabi Azad was heard along with it.

Issues

1. Could the government avoid making public the orders under Section 144 and the orders suspending the internet?
2. Are free speech and the practice of a profession through the internet protected as fundamental rights under Part III?
3. Was the internet shutdown legally justified?
4. Were the restrictions under Section 144 valid and lawful?
5. Had there been a violation of press freedom?

Arguments

Petitioners	Government
The restrictions were unreasonable; the use of Section 144 was neither reasonable nor proportionate.	National security came first; there was a real threat of terrorism in Jammu and Kashmir.
No concrete evidence of a threat to law and order was shown.	It was necessary to prevent misuse of social media and the dark web.
Proper procedure was not followed in suspending the internet; the orders were vague and overbroad.	Blocking a few specific sites would not bring the same benefit, so a complete shutdown was the safer option.
Less restrictive options were available, such as blocking only certain targeted websites; there was no need to shut down the entire internet.	Given the security situation, the measures were proportionate.

Judgment (held)

The judgment was written by Justice N.V. Ramana, with Justice R. Subhash Reddy and Justice B.R. Gavai on the bench. It made six main points.

1. Transparency

• The government must make public all orders imposing restrictions, so that citizens can challenge them in court.
• An order that affects people's life, liberty and property cannot be kept hidden.

2. Speech and profession through the internet are protected

• Freedom of speech and expression through the medium of the internet is constitutionally protected under Article 19(1)(a).
• The freedom to carry on any profession, trade or business through the internet is protected under Article 19(1)(g).
• Restrictions on these can be imposed only within the conditions of Article 19(2) and Article 19(6).

3. Internet suspension can only be temporary

• An indefinite ban, one with no fixed time limit, is illegal.
• At that time, the Temporary Suspension of Telecom Services Rules, 2017 applied. The Court held that the Review Committee set up under these rules must review the orders every seven working days.
• The government was directed to immediately review all internet suspension orders and revoke those that did not hold up against the judgment.
• Where the internet could not be restored quickly, the government was to immediately consider opening it for essential services such as hospitals, government websites and limited e-banking.

4. Section 144 is not a tool to suppress dissent

• The power under Section 144 exists to prevent danger in an emergency-like situation, not to suppress legitimate dissent.
• Orders under Section 144 must state material facts.
• They must remain open to judicial scrutiny.
• Orders that keep being repeated will be treated as an abuse of power.

5. The proportionality test

A restriction is valid only if:

1. its purpose is legitimate;
2. its method is connected to that purpose;
3. no less strict option is available; and
4. the harm caused by the restriction does not outweigh its benefit.

The same test appears again in the Modern Dental College case and in the Puttaswamy case.

6. Press freedom

• The petitioner argued that the restrictions had a chilling effect on the press.
• The Court held that there was no concrete evidence to support this claim, and since the newspaper had started printing again, there was no need to give a separate finding on this point.
• But the Court clearly said that responsible governments must respect press freedom at all times, and that there is no justification for keeping a sword hanging indefinitely over the press. A free press is the foundation of democracy.

Is internet access itself a fundamental right?

Principle / ratio

Significance

• The case built a strong precedent for digital rights in India.
• No government can now impose an indefinite internet ban. Only restrictions that are transparent, proportionate and temporary are valid.
• The Telegraph Act has now been replaced by the Telecommunications Act, 2023, but the constitutional standard for testing shutdown orders still comes from Anuradha Bhasin.
• Protecting digital freedom is as important as protecting physical freedom. In a democracy, the free flow of information and the internet itself function like a backbone.

Exam points

Case 3: Ashok Kumar Thakur v. Union of India (2008)

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Ashok Kumar Thakur v. Union of India is a major case on reservation. It was decided on 10 April 2008 by a five-judge Constitution Bench headed by Chief Justice K.G. Balakrishnan. It concerns Article 15(5), which deals with reservation in institutions of higher education.

Background and facts

• Article 15 says that the State shall not discriminate against any citizen on grounds of religion, race, caste, sex or place of birth.
• The same Article also permits the State to make special provisions for backward classes, Scheduled Castes and Scheduled Tribes.

The Ninety-third Constitutional Amendment inserted clause (5) into Article 15. Article 15(5):

• allows the State to make special provisions relating to admission in educational institutions;
• for the advancement of socially and educationally backward classes, SC and ST;
• including private institutions, whether aided or unaided;
• but excluding minority educational institutions under Article 30.

Based on this clause, Parliament enacted the Central Educational Institutions Reservation in Admission Act, 2006. Central institutions such as the IITs, IIMs and central universities gave the following reservation:

Category	Reservation
Scheduled Castes (SC)	15%
Scheduled Tribes (ST)	7.5%
Other Backward Classes (OBC), i.e. socially and educationally backward classes	27%

A batch of petitions reached the Supreme Court challenging both the Ninety-third Amendment and the 2006 Act.

Arguments of the petitioners

1. Merit: 27% OBC reservation undermines merit. Admission should be based only on merit, and preferring those with lower marks over those with higher marks is itself discrimination.
2. Identification: there are no concrete criteria for properly identifying OBC candidates.
3. Creamy layer: the concept of creamy layer applies to both Article 15 and Article 16, so excluding the creamy layer is necessary.

Issues

1. Was the Ninety-third Amendment valid?
2. Was it necessary to exclude the creamy layer from OBC candidates?
3. Had proper parameters for identifying the creamy layer been laid down in law?
4. Was Article 15(5) constitutionally valid?
5. Did excluding minority institutions violate Article 14?
6. Was it constitutional to give the government the power to determine who the backward classes are?

Judgment (held)

1. Creamy layer must be excluded from OBC

• Exclusion of the creamy layer from OBC is necessary. Without it, the identification of backward classes would go wrong and OBC reservation would not survive constitutionally.
• Justice Dalveer Bhandari went so far as to say that if the creamy layer were not excluded, the Ninety-third Amendment itself would become ultra vires.
• The Court did not lay down new, rigid guidelines of its own for identifying the creamy layer. It held that the parameters in the Government of India's Office Memorandum of 8 September 1993 could be applied.

2. Creamy layer rule only for OBC, not SC and ST

SC and ST are separate classes in themselves, whose identification the Constitution has itself carried out through Articles 341 and 342.

3. Exclusion of minority institutions is valid

• Minority institutions form a separate category, protected by other provisions such as Article 30.
• Excluding them from clause (5) is not a violation of Article 14.
• Article 15(4) and Article 15(5) are not contradictory; both are valid within their own spheres.

4. The 27% quantum is valid

The 27% OBC reservation was upheld, and the Court said it could be reviewed after ten years.

5. Delegation to the Central Government is valid

Giving the Central Government the power to decide who counts as OBC is not excessive delegation.

6. Private unaided institutions: question left open

• The majority held that the Ninety-third Amendment does not violate the basic structure in the case of State-maintained and aided institutions.
• The majority left open whether the amendment was valid for private unaided institutions, because the 2006 Act applied only to central institutions.
• Justice Dalveer Bhandari said that imposing reservation on private unaided institutions violates the basic structure, because it restricts the freedom to run an institution under Article 19(1)(g).

Principle / ratio

Significance

• After the decision, the government implemented OBC reservation in central higher educational institutions, with the creamy layer excluded.
• The case set the precedent that the principle of reservation must be balanced with the basic structure. Every policy must take into account the welfare of backward classes and also merit and equality.
• Reservation is not merely a privilege; it is a constitutional responsibility and a step towards real equality.

Later developments: creamy layer in SC and ST

Exam points

Case 4: Pradeep Kumar Biswas v. Indian Institute of Chemical Biology (2002)

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Pradeep Kumar Biswas v. Indian Institute of Chemical Biology is regarded as a landmark on the interpretation of Article 12 and a turning point in understanding the definition of "State".

Background: Article 12

Fundamental rights are mostly enforced against the State, so the first question is: who counts as the State? Under Article 12, the State includes:

• the Government and Parliament of India;
• the Government and Legislature of every State;
• all local and other authorities within the territory of India or under the control of the Government of India.

The real dispute is over the words "other authorities". Can a society, such as the Council of Scientific and Industrial Research (CSIR), be regarded as the State?

Facts

• In 1972, Sabhajit Tewary, a junior stenographer at CSIR, filed a writ in the Supreme Court under Article 32, demanding salary and allowances equal to those of newly recruited stenographers, on the basis of equality under Article 14.
• In 1975, the Supreme Court dismissed his writ, holding that CSIR was not a State or authority under Article 12, so the writ was not even maintainable.
• Later, Pradeep Kumar Biswas challenged his termination by the Indian Institute of Chemical Biology, a unit of CSIR, in the Calcutta High Court.
• The High Court held the writ not maintainable, following Sabhajit Tewary.
• In the Supreme Court, a two-judge bench said the question needed reconsideration: was CSIR really not a State, and was the twenty-five-year-old decision in Sabhajit Tewary correct?
• The matter finally went to a seven-judge Constitution Bench.

Issues

1. Was CSIR a State under Article 12?
2. If so, would the Supreme Court overrule its own twenty-five-year-old decision in Sabhajit Tewary?

The earlier test: Ajay Hasia indicators

The Ajay Hasia indicators:

1. Does the government hold the entire share capital?
2. Is almost the entire expenditure met by financial assistance from the government?
3. Has the State given the body a monopoly?
4. Is there deep and pervasive control by the State?
5. Are its functions governmental in nature?
6. Has any government department been transferred to the body?

In Pradeep Kumar Biswas, the Court said these indicators are not a rigid formula.

The test laid down

The majority set a simple test: if a body is under the dominance or control of the government, financially, functionally and administratively, it is a State under Article 12. The control must be pervasive.

Pervasive control	Merely regulatory control
Deep and far-reaching dominance, financially, functionally and administratively.	The kind of control the government exercises over every private body.
The body is a State under Article 12.	The body does not become a State.

Application of the test to CSIR

• CSIR was created by the government itself.
• Research that used to be carried out within the Department of Commerce had been shifted to CSIR.
• Its objectives were clearly in the national interest: promoting industrial development and economic welfare.
• CSIR is a non-profit body. Its income was used only for these objectives, and its expenditure was decided with the approval of the government.
• CSIR could not decide the service conditions of its own employees; every change needed the approval of the Government of India.
• About 70% of its funds came from government grants.
• Members of the Governing Body who were not ex officio were nominated by the President of CSIR, who could also end their membership.
• The Prime Minister is the ex officio President of CSIR.

Judgment (held)

• The government's control over CSIR was not merely regulatory but pervasive; the government dominated it from every side.
• Therefore, CSIR is a State under Article 12.
• Sabhajit Tewary was overruled.
• The matter was sent back to an appropriate bench for a decision on the merits in light of Article 12.
• Date: 16 April 2002. Majority: 5:2.
• The majority opinion was written by Justice Ruma Pal. Justice R.C. Lahoti wrote a dissent on his own behalf and on behalf of Justice Doraiswamy Raju.

Principle / ratio

Exam points: the Article 12 chain of cases

Case	Contribution
Rajasthan State Electricity Board	Gave a broad meaning to the words "other authorities".
Sukhdev Singh	Held statutory corporations to be a State.
Ajay Hasia	Gave the indicators.
Pradeep Kumar Biswas	Gave the test of financial, functional and administrative control.
Zee Telefilms	Applied the same test to BCCI.

Case 5: Vijay Kumar Sharma v. State of Karnataka (1990)

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After the cases on Article 12, this case raises a practical question of federalism: a conflict between a State law and a Central law. When two laws appear to clash on the very same subject, which law prevails? That is the core of the case.

Facts

• The Karnataka government enacted the Karnataka Contract Carriages Acquisition Act, 1976.
• A contract carriage is a vehicle, such as a private bus, that is hired out entirely to a single party.
• Purpose of the Act: the State would acquire all private contract carriages. The vehicles, along with their permits and registration certificates, would be transferred to the State free of every kind of burden.
• The Act was enacted under Entry 42 of the Concurrent List (List III), the entry dealing with the acquisition of property. It was also connected to Article 31 and to Article 39(b) and 39(c).
• The Act received the President's assent on 11 March 1976. Its validity was later upheld by a seven-judge bench of the Supreme Court in State of Karnataka v. Ranganatha Reddy.
• Section 14 and Section 20 of the Act provided that private operators could no longer apply for a new permit or for renewal. Permits would go only to the State's Road Transport Corporation.
• In 1988, Parliament enacted a new Central law, the Motor Vehicles Act, 1988. The petitioners, Vijay Kumar Sharma and other private operators, argued that the Karnataka Act of 1976 was now against this Central Act.

Issues

1. Was the Karnataka Contract Carriages Acquisition Act, 1976 repugnant to the Motor Vehicles Act, 1988?
2. If there was a conflict, which law would prevail: the State law or the Central law?

Arguments

Petitioners (private operators)	State of Karnataka
The repugnancy was clear: both Acts dealt with the very same subject, namely motor vehicles and permits.	The 1976 Act was completely valid, because it was enacted under Entry 42 and had received the President's assent.
The 1988 Act was a Central law applicable across the whole of India, so under Article 254 the Central law alone should prevail.	Under Article 254(2), a State law that has received the President's assent prevails in that State even where it conflicts with a Central law.
The 1988 Act was the later Central law, so under the proviso to Article 254(2) it had impliedly repealed Section 14 and Section 20 of the Karnataka Act, even though the State Act had received the President's assent.	The preamble of the Act stated its purpose as public interest: preventing the misuse of contract carriages and giving people better transport facilities.

Article 254 explained

Article 254 is where marks are scored in the examination, so its structure must be clear.

Part of Article 254	Rule
Clause (1): general rule	If there is repugnancy between a State law and a Central law on a matter in the Concurrent List, the Central law prevails. The State law is void to the extent of the repugnancy.
Clause (2): exception	If a State law has been reserved for the President's consideration and has received assent, it prevails in that State over an already existing Central law.
Proviso to clause (2)	Parliament can later make a new law on the same matter and change or repeal such a State law.

So when a Central law comes later, the real question that remains is whether there is truly any repugnancy at all.

Judgment

• Decided on 27 February 1990 by a three-judge bench, by a majority of 2:1.
• The majority opinion was written by Justice P.B. Sawant. Justice Ranganath Misra agreed with him and wrote a separate opinion.
• Justice K. Ramaswamy dissented. In his view, Section 14(1) and Section 20(3) of the Karnataka Act were void to the extent that they banned new permits.

Held: The Karnataka Contract Carriages Acquisition Act, 1976 was not repugnant to the Motor Vehicles Act, 1988. The two laws were not against each other.

The Court applied the doctrine of pith and substance.

Point	Karnataka Contract Carriages Acquisition Act, 1976	Motor Vehicles Act, 1988
Nature	A law of acquisition	A general law regulating motor vehicles
Main aim	Acquisition of contract carriages, and bringing the transport system under the control of the State in the public interest	Regulation of motor vehicles
Entry (Concurrent List)	Entry 42	Entry 35

The two laws occupy different fields. Therefore the Motor Vehicles Act did not do away with the Karnataka Act, and the 1976 Act remained valid.

Tests for repugnancy

These tests come from cases such as Deep Chand and M. Karunanidhi:

1. Direct conflict: is there such a direct conflict between the two laws that obeying one would break the other?
2. Occupied field: did Parliament intend to cover the whole field, that is, is the Central law an exhaustive code?
3. Same subject matter: are the two laws really on the same subject matter?

In Vijay Kumar Sharma, the Court found that the subject matter of the two laws was different and that there was no direct conflict between them either, so the petitioners' case failed.

Principle / ratio

1. Article 254(1): the Central law prevails when there is a conflict on a matter in the Concurrent List.
2. Article 254(2): a State law that has received the President's assent is protected, subject to the proviso.
3. Pith and substance: two laws will not be treated as repugnant if their dominant purpose is different.

Exam points

Case 6: Anoop Baranwal v. Union of India (2023)

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Case 1 dealt with the appointment of judges; this case takes up a similar question about another constitutional body. The judgment came on 2 March 2023 and is regarded as a milestone for Indian democracy, because it is directly connected with the independence of the Election Commission of India, the body that ensures elections remain free and fair.

The problem addressed

• The judgment addressed a long-standing problem: the process of appointing the Chief Election Commissioner and the other Election Commissioners.
• Until then, the President made these appointments on the aid and advice of the Council of Ministers. In practice, the executive had complete control.
• If only the government makes the appointment, questions can arise about the neutrality and independence of a body that has to conduct elections for that very government's own party.

Background: Article 324(2)

• Article 324(2): the Election Commission consists of a Chief Election Commissioner and as many Election Commissioners as the President may fix. The President appoints them, subject to the provisions of any law made by Parliament.
• The Constitution itself therefore expected Parliament to make a law on this. More than seventy years passed and no such law was made.
• In the Constituent Assembly, Dr. Ambedkar had raised this concern: the Constitution contained no safeguard to stop the appointment of a person who would remain under executive pressure, and the matter was being left to Parliament.

Facts

Anoop Baranwal, a public-spirited citizen, filed a petition under Article 32. His case was:

• The existing appointment system was problematic, because the President acted only on the advice of the Council of Ministers.
• Neither the judiciary nor the legislature had any role, and this compromised the autonomy of the Election Commission.
• The absence of a law had created a kind of constitutional vacuum, which could be misused.

Issues

1. Does the current appointment system violate the independence of the Election Commission?
2. Does the absence of a law under Article 324(2) give the executive unlimited discretion?
3. Can the Supreme Court lay down guidelines when Parliament has not passed a law at all?
4. The larger question behind these: does placing complete control in the hands of the executive go against constitutional morality?

Arguments

Petitioner	Union of India
The executive has exclusive control, and this compromises neutrality.	The Constitution itself says the President, that is, the executive, will make the appointment.
Exclusive executive control goes against the principle of separation of powers.	Until Parliament makes a law, the judiciary should not cross its own limits, since this is the legislature's job.
The Election Commission is a constitutional body, like the Comptroller and Auditor General or the judiciary, so its appointments should also be independent.	The current system had conducted credible elections so far, so there was no need to interfere.
In many democracies, such appointments are made by a multi-member panel or an independent committee.	Any change in the process could happen only through a law made by Parliament, not through guidelines from the court.
Expert bodies had said the same: the Law Commission, 255th Report (2015) recommended a committee of the Prime Minister, the Leader of Opposition and the Chief Justice of India; the Second Administrative Reforms Commission (2007) spoke of a broad-based collegium.

Judgment

• Decided unanimously by a five-judge Constitution Bench. Justice K.M. Joseph wrote the main opinion.
• Parliament ought to have made a law under Article 324(2), but more than seventy years had passed without one.
• When there is a constitutional vacuum and the legislature fails to act, the judiciary can step in to protect constitutional objectives.
• The Court recalled that it had similarly laid down guidelines for the independence of the CBI in its December 1997 judgment in Vineet Narain v. Union of India.
• Separation of powers does not mean that when the legislature stays inactive, the objectives of the Constitution should be left incomplete.
• Free and fair elections are part of the basic structure of the Constitution, and the independence of the Election Commission is necessary for this.

The interim mechanism

Until Parliament makes a law, the President will appoint the Chief Election Commissioner and the Election Commissioners on the advice of a committee consisting of:

1. the Prime Minister;
2. the Leader of Opposition in the Lok Sabha (if there is no Leader of Opposition, the leader of the largest opposition party in the Lok Sabha takes that place); and
3. the Chief Justice of India.

The committee's task was to keep the appointment transparent and neutral.

Removal of Election Commissioners: Article 324(5)

Office	Protection from removal
Chief Election Commissioner	Same protection from removal as a Supreme Court judge
Other Election Commissioners	No such protection; they can be removed on the recommendation of the Chief Election Commissioner

• Justice Ajay Rastogi, in his concurring opinion, laid special emphasis on this inequality and said that Election Commissioners should also get the same protection in matters of removal.
• The majority did not accept this. A plain reading of Article 324(5) does not give Election Commissioners the same protection. Justice Rastogi himself called it only desirable.
• The Court also appealed to Parliament to consider an independent secretariat and independent funding for the Election Commission.

Later developments

• The Court's mechanism was meant to last only until Parliament made a law.
• In December 2023, Parliament passed the Chief Election Commissioner and Other Election Commissioners Act, 2023.
• Under this Act, the selection committee consists of the Prime Minister, the Leader of Opposition and a Union Cabinet Minister nominated by the Prime Minister. The Chief Justice of India is not included.
• The Act has been challenged in the Supreme Court, and the challenge is still pending. In March 2024, the Court declined to stay the Act.
• On 23 September 2026, a two-judge bench split in its opinion on whether the matter should be sent to a larger bench. The matter was referred to the Chief Justice of India to consider setting up a Constitution Bench.

Point	Interim mechanism (Anoop Baranwal, 2023)	Chief Election Commissioner and Other Election Commissioners Act, 2023
Member 1	Prime Minister	Prime Minister
Member 2	Leader of Opposition in the Lok Sabha (or leader of the largest opposition party)	Leader of Opposition
Member 3	Chief Justice of India	Union Cabinet Minister nominated by the Prime Minister

Significance

• The independence of the Election Commission is non-negotiable.
• Free and fair elections are possible only when appointments are impartial and transparent.
• Protecting the basic values of the Constitution is the responsibility of every organ of the State.
• When the legislature fails to do its job, the judiciary can step in, for a limited time.

Exam points

Case 7: Modern Dental College and Research Centre v. State of Madhya Pradesh (2016)

▶ Watch this part of the lecture (47:52)

This case moves from the Election Commission to education. Should private colleges have the right to conduct their own entrance examination? Can the State government control their admissions and fee structure? Modern Dental College answers exactly these questions and shows a fine balance between education and constitutional rights.

The decision was given on 2 May 2016 by a five-judge Constitution Bench. Justice A.K. Sikri wrote the main opinion.

Facts

• Madhya Pradesh enacted the Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2007. Its aim was to regulate the admission and fee structure of private professional colleges.
• Under this Act, the State framed rules in 2008 and 2009 for admission and the common entrance test (CET).
• Modern Dental College and some other private medical colleges challenged these laws in the Madhya Pradesh High Court. The challenge failed there, and the matter reached the Supreme Court.

Issues

1. Does the Madhya Pradesh government have the power to make such a law?
2. Does the State's CET hurt the fundamental rights of private colleges?
3. Who will fix the fees: the State or the college?
4. Is reservation for SC, ST and OBC valid in private institutions?
5. Do these restrictions violate the right under Article 19(1)(g), or are they reasonable restrictions?

Arguments

Private colleges	State of Madhya Pradesh
Running an institution is their fundamental right under Article 19(1)(g).	Relying on T.M.A. Pai Foundation v. State of Karnataka and P.A. Inamdar v. State of Maharashtra, the State can regulate institutions without stripping away their autonomy.
Admitting students and fixing fees are at the core of their autonomy; the State's CET and fee fixation strip away that autonomy.	The sole aim of the CET is to ensure merit, and it benefits students.
Admission and entrance tests fall under Entry 66 of the Union List, so the State has no power at all to legislate on them.	The fee regulatory committee set up under the Act only checks that there is no commercial exploitation.
	Reservation for SC, ST and OBC is valid on the basis of Article 15(5), on which the Supreme Court had already ruled.

Reasoning of the Court

1. Fee regulation

• The college proposes its own fee structure, but the Admission and Fee Regulatory Committee checks it, so that there is no commercial exploitation.
• Section 9(1) of the Act lists the factors for fixing fees: the cost of land and buildings, infrastructure, staff and administration expenses, and a reasonable surplus for the growth and development of the institution.
• The State's regulation was meant not for control but for transparency and fairness, and was therefore valid.

2. Common entrance test

• The purpose of the CET is merit-based admission and preventing malpractice.
• It does not destroy the college's autonomy, since admission still remains in the college's own hands; the CET is only a filter.
• It was therefore legal, fair and necessary for public welfare.

3. Education is not a pure business

• The most important observation: education is not a pure business. It is a noble, social welfare activity, like charity.
• According to T.M.A. Pai, private institutions have certain basic rights: admitting students, fixing a reasonable fee, appointing staff and maintaining discipline.
• But under Article 19(6), the State can impose reasonable restrictions on admission and fees in the public interest.

4. Doctrine of proportionality

Here the Court applied the doctrine of proportionality in clear terms, and this became the biggest hallmark of the case. Justice Sikri laid down four steps:

1. Legitimate purpose: the purpose of the restriction must be legitimate.
2. Rational connection: the method chosen must be rationally connected to that purpose.
3. Necessity: no equally effective, less restrictive method should be available.
4. Balancing: there must be a proper balance between the impact on the right and the benefit gained by the public.

5. Legislative power: State versus Centre

Entry	Scope as explained by the Court
Entry 66, Union List	Limited only to the coordination and determination of standards in higher education
Entry 25, Concurrent List	Covers the broader regulation of education

Justice R. Banumathi wrote a separate, detailed opinion on this point. The result: the Madhya Pradesh law is valid, as long as it does not conflict with any Central law.

Judgment (held)

• The Madhya Pradesh Act of 2007 is constitutional.
• The fee regulatory committee is legal and necessary to prevent unreasonable profit.
• The CET serves the merit and welfare of students and involves no violation.
• Reservation for SC, ST and OBC is valid under Article 15(5).
• The State has legislative power in this field, as long as it does not clash with Central law.

Later development

Medical admissions across the country now happen through NEET. In 2020, the Supreme Court held that NEET was valid even for minority institutions. The principle of merit-based common entrance that grew strong in Modern Dental thus spread even further.

Exam points

Case 8: Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955)

▶ Watch this part of the lecture (54:31)

In Modern Dental, the State was regulating education. In this older case, the State itself entered the business of school textbooks. The case deals with the extent of executive power (how far the government can go without a law) and with separation of powers. It also directly involved Article 19(1)(g), which gives every citizen the right to carry on a trade or business.

Facts

• There were six petitioners, who ran a publishing business under the name Uttar Chand Kapur and Sons. They printed, published and sold school textbooks, mainly for the primary and middle schools of Punjab.
• In 1950, the Punjab government started a policy of nationalising textbooks: the government itself would control which textbooks would be printed, who would publish them and who would sell them.
• Different notifications were issued at different times. As a result, the publishers' business was almost destroyed, and they were pushed almost entirely out of the market.

Arguments of the petitioners

• The government had done all this purely through executive orders.
• These orders restricted their fundamental right under Article 19(1)(g) and were unconstitutional, because no proper law or legislation had been passed at all.
• Even if there had been a law, it would still have had to satisfy the requirements of Article 19(6).
• They filed a petition in the Supreme Court under Article 32, asking that the Punjab government withdraw its notifications.

On one side stood business freedom; on the other, the executive power of the government.

Issue

Could the executive, without any specific legislation, create a kind of monopoly on its own? In other words, could executive orders alone almost completely shut down a business, when Article 19(1)(g) gives every citizen a fundamental right to trade and business?

Reasoning, part 1: nature of executive power

Chief Justice B.K. Mukherjea wrote the Court's judgment.

• It is difficult to give any exhaustive definition of executive power.
• If the legislative and judicial functions are taken out of the functions of government, whatever remains is an executive function.
• Under Article 162, the executive power of a State extends to all matters on which the State legislature can make laws. Article 73 says the same for the Union.
• The executive therefore does not have to wait for a specific law every single time before it acts. Printing and selling textbooks could be a valid executive function of the State.
• The expenditure on this activity had been passed by the legislature through Appropriation Acts, meaning the legislature had knowledge of, and had approved, this policy.

The limit on executive power

• India's Constitution is a written Constitution. If even the legislature cannot override fundamental rights, the executive certainly cannot.
• If an executive action harms a person's legal rights or fundamental rights, it must have the authority of law behind it.
• Executive power operates only within the limits of fundamental rights.

Reasoning, part 2: application to the facts

• The Court drew a fine distinction: an executive action can be illegal, but not every illegal action amounts to a violation of a fundamental right.
• The remedy under Article 32 is available only when a citizen's fundamental right has actually been infringed. Merely saying that an executive action is illegal does not make out a case under Article 32.
• To infringe a right means to violate it or encroach upon it.
• The publishers only ever had a chance of getting their books approved as school textbooks. They had no fundamental right requiring the government to prescribe their books in particular.
• They could still carry on any business, and could still publish and sell any book. The government simply could not guarantee that their book alone would be used in schools.

Illegal executive action	Violation of a fundamental right
Merely alleging illegality is not enough for Article 32	Article 32 remedy is available only when a fundamental right has actually been infringed
Not every illegal action infringes a fundamental right	Infringement means the right is violated or encroached upon

Judgment (held)

The petitioners had no enforceable fundamental right in this case. Their argument under Article 19(1)(g) failed, and the petition was dismissed.

Separation of powers

• The Indian Constitution does not adopt separation of powers in its full rigidity, but the functions of the different organs of government are, to a large extent, kept distinct.
• No single organ can take over the essential functions of another.
• Our system is modelled on the British parliamentary system. Making policy is the primary responsibility of the cabinet, and the cabinet remains accountable to the legislature.

Principle / ratio

• The power of the executive is not unlimited; it too must follow the law of the land and the Constitution.
• Executive power runs alongside legislative power: the executive can act wherever the legislature could make a law, even if no law has actually been made on that subject yet.
• Wherever executive action harms someone's rights, the backing of law is necessary.

Exam points

Case 9: Waman Rao v. Union of India (1981)

▶ Watch this part of the lecture (1:01:19)

This case picks up the thread that runs through the entire set of landmark cases as its backbone: Parliament's amending power and the basic structure. The decision was given on 13 November 1980 by a five-judge bench headed by Chief Justice Y.V. Chandrachud. It was reported in 1981, which is why it is called Waman Rao, 1981.

Background: amending power and basic structure

• The Constitution is not a fixed document carved in stone. It is a living document that evolves with the needs of society, and the biggest tool of that evolution is amendment.
• Parliament gets the amending power from Article 368. Under it, Parliament can add new clauses, and modify or repeal old ones, provided it follows the prescribed procedure.
• This power is not unlimited. The Supreme Court created a judicial safeguard called the basic structure doctrine: Parliament can change a great deal in the Constitution, but it cannot touch its basic structure.
• This was settled on 24 April 1973 in Kesavananda Bharati v. State of Kerala (dealt with as a separate case). Any amendment that breaks the basic structure is not valid.
• Waman Rao is a kind of sequel to Kesavananda. The Court had to decide the constitutional validity of Articles 31A, 31B and 31C and, in particular, what would happen to the Ninth Schedule.

Article	Source	What it does
Article 31A	First Amendment, 1951	Protects laws relating to the acquisition of estates and agrarian reform from challenge under Articles 14 and 19
Article 31B	First Amendment, 1951	Any Act placed in the Ninth Schedule will not be void on the ground that it violates fundamental rights (the Ninth Schedule works as a protective shield)
Article 31C	Twenty-fifth Amendment, 1971	Protects laws implementing Article 39(b) and 39(c) from challenge under Articles 14, 19 and 31

Facts

• Maharashtra passed the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, which placed a limit on agricultural land holdings.
• This law, along with its later amending Acts, was placed in the Ninth Schedule, so that no one could challenge it on the ground that it violated fundamental rights.
• The Bombay High Court upheld it on 13 August 1976.
• On 27 January 1977, during the Emergency itself, the Supreme Court also dismissed the appeals against it, in the Dattatraya Govind Mahajan case.
• After the Emergency was lifted, review petitions and fresh writ petitions were filed, because the Emergency had made it impossible to raise many arguments. The Court allowed the request for review, and that is how the Waman Rao case came about.

Issues

1. Did Parliament exceed its power by adding Article 31A? Articles 31A and 31B protect laws that do break fundamental rights.
2. Does the whole concept of the Ninth Schedule run against the basic structure?
3. The Emergency question: the term of the Lok Sabha had been extended during the Emergency, and it was this extended Lok Sabha that passed the Fortieth Amendment, through which the later ceiling laws of Maharashtra were placed in the Ninth Schedule. Were the extension of the term and the Fortieth Amendment valid?
4. What is the scope of stare decisis?

Arguments of the petitioners on the Emergency

• The Emergency of 3 December 1971 had been continued without reason even after the war with Pakistan ended.
• The Emergency of 25 June 1975 was mala fide.
• So both the extension of the term of the Lok Sabha and the Fortieth Amendment were invalid.

Judgment

1. Article 31A

• Article 31A does not violate the basic structure.
• Its main purpose was the abolition of zamindari and reducing social and economic inequalities in the agriculture sector.
• It may cause difficulty to some people, but this is acceptable in the larger public interest.
• Agrarian reform is a tool for implementing the Directive Principles, especially Article 39(b) and 39(c).

2. Article 31B and the Ninth Schedule

The Court drew a clear boundary at 24 April 1973, the date of the Kesavananda Bharati judgment.

Laws placed in the Ninth Schedule before 24 April 1973	Laws placed in the Ninth Schedule after 24 April 1973
Safe; the basic structure test will not apply to them	Can be challenged if they break the basic structure
The past is safe	The future remains open to scrutiny

This is understood as a kind of doctrine of prospective overruling.

3. Article 31C (unamended)

• The unamended Article 31C, as it then stood, applied to any law implementing the Directive Principles in Article 39(b) and 39(c). Such a law would not be invalid on the ground that it violated Articles 14, 19 or 31.
• The Court held it valid to the same extent that Kesavananda had held it valid.
• The Directive Principles promote welfare and equality. They do not break the basic structure; they strengthen it.
• Note: the Forty-second Amendment had extended Article 31C to cover all the Directive Principles, and that part was struck down in Minerva Mills (dealt with as a separate case).

4. The Emergency argument

• When the Emergency of 1971 was declared, the threat to the country's security was clear and present.
• Whether it was right to continue it after the war: the Court said it could not give a judicial decision on that, based on the material available.
• The evidence that the Emergency of 1975 was mala fide was not clear and concrete.
• The Court left open the question whether the proclamation of an Emergency could be examined in court at all.
• Both Acts extending the term of the Lok Sabha were passed while both Emergencies were actually in force.
• Result: the extension of the term of the Lok Sabha was valid, and the Fortieth Amendment, passed during that same term, is valid too.

5. Stare decisis

• Stare decisis means holding on to earlier decisions, so that the law retains stability.
• The Court said this principle does not apply to constitutional Articles themselves, but to laws that have long been protected under those Articles and on which people have relied to settle their affairs.
• The Court examined Article 31A on its own merits and held it valid.
• Justice P.N. Bhagwati took a different view: the validity of Article 31A could also be upheld on the basis of stare decisis, because so many decisions over so many years had already held it valid.

Analysis

• The Court openly accepted that the objective of land reform is not against the basic structure.
• After independence, India's goal was to build an egalitarian society, a society of equals, in which the zamindari system would end and land would be redistributed.
• For this reason the Ninth Schedule, Article 31A and Article 31B were introduced, so that these reforms would not get stuck in the courts.
• At the same time, Parliament's amending power is not absolute. Parliament cannot misuse its power to damage the basic structure.

Significance

The biggest contribution of Waman Rao was the line drawn at 24 April 1973. It had a direct impact on I.R. Coelho v. State of Tamil Nadu (2007).

Right to property: the Forty-fourth Amendment context

• The Forty-fourth Amendment (1978) removed Article 19(1)(f) and Article 31 from the list of fundamental rights.
• It added Article 300A: no person shall be deprived of property except by the authority of law.
• Property was no longer a fundamental right; it became a constitutional right.
• This change had already taken place by the time of the Waman Rao decision. But the challenged laws and amendments belonged to the period before it, so the Court had to conduct a full debate on Articles 31A, 31B and 31C.

Exam points

Case 10: Mohd. Ahmed Khan v. Shah Bano Begum (1985)

▶ Watch this part of the lecture (1:11:47)

The case began with the fight of one elderly woman. Shah Bano, 62 years old, was thrown out of her home by her husband and was then told that her right to maintenance lasted only until the end of her iddat period. She went to court, and the judgment that followed started a massive debate across India and changed the understanding of maintenance law.

Bench and Date

• Decided on 23 April 1985 by a five-judge bench of the Supreme Court.
• The judgment was written by Chief Justice Y.V. Chandrachud.

The case triggered a very big debate between personal law and secular law. It was not only about maintenance. It gave a new perspective on:

• women's rights;
• Muslim personal law; and
• the scope of Section 125 of the CrPC. Today this same provision is found in Section 144 of the B.N.S.S.

Facts

• 1932: Mohd. Ahmed Khan, an advocate from Indore, married Shah Bano. The couple had three sons and two daughters.
• 1975: Ahmed Khan threw Shah Bano out of the house.
• April 1978: Shah Bano filed an application for maintenance under Section 125, asking for Rs. 500 per month.
• 6 November 1978: Ahmed Khan gave her an irrevocable talaq.
• He then said that after the divorce he would not pay maintenance, because under Muslim personal law his duty lasted only until the end of the iddat period.
• He also said that he had paid Rs. 200 a month for two years, and had deposited Rs. 3,000 as mehr.

Proceedings in the Lower Courts

Court	Maintenance awarded
Magistrate	Only Rs. 25 a month
Madhya Pradesh High Court	Raised to Rs. 179.20, that is, about Rs. 180 a month

Ahmed Khan was not happy with the High Court's decision and appealed to the Supreme Court.

Issues

1. Under Muslim personal law, is the husband's obligation to pay maintenance limited only to the iddat period?
2. Does Section 125 apply to Muslims as well?
3. If personal law and Section 125 conflict, which law will prevail?

Arguments of the Husband (Appellant)

• Under Muslim personal law, his duty to pay maintenance lasted only until the end of the iddat period.
• He had already paid Rs. 200 a month for two years and had deposited Rs. 3,000 as mehr.
• Technical argument under Section 127(3)(b) of the CrPC (today Section 146 of the B.N.S.S.): if a divorced wife has received the whole amount due to her on divorce under customary or personal law, the maintenance order can be cancelled. Since mehr had been paid, the order should go.

Reasoning of the Court

Section 125 is a secular provision

• Section 125 is a secular provision. It does not apply to any one religion but to everyone. A Hindu, Muslim, Christian or Sikh, anyone at all, irrespective of religion, can claim maintenance under it.
• Section 125 is part of criminal procedure, not personal civil law.
• Its main purpose is to give quick relief to any wife, child or parent who cannot maintain themselves, so that they do not become destitute. Religion has no role in this.
• If the husband has sufficient means and the wife cannot maintain herself, the husband must pay maintenance.
• The Explanation to Section 125 itself says that "wife" includes a woman who has been divorced, for as long as she has not remarried.

Personal law and Section 125: no real conflict

Muslim personal law (as argued)	Section 125
The husband's duty to pay maintenance lasts only until the end of iddat.	If the wife cannot maintain herself, the husband must pay maintenance even if the iddat period has ended.

The Court reconciled the two:

• If the divorced wife is earning, or can maintain herself, the husband's duty ends after iddat.
• If she cannot maintain herself, she gets the protection of Section 125.

So, in truth, no question of conflict arises between Section 125 and Muslim personal law; each operates within its own circumstances.

The Court also referred to certain verses of the Quran and said that Islam, too, speaks of a reasonable provision for the divorced wife. This part of the reasoning later became the most controversial.

Section 127(3)(b) and mehr

The Court clarified that mehr is not an amount paid in exchange for divorce. It is an amount connected with the marriage, given in the wife's honour. So the payment of mehr does not free the husband from his responsibility to pay maintenance, and Section 127 does not help him.

Judgment (Held)

• The Supreme Court confirmed the decision of the High Court and dismissed the appeal of Ahmed Khan.
• Shah Bano would get maintenance under Section 125, because she could not maintain herself.
• The husband's religion or personal law does not end this obligation.
• The duty to pay maintenance continues for as long as the wife cannot support herself, whether or not the divorce has taken place.
• The Court also said, with regret, that Article 44, which speaks of a Uniform Civil Code, had so far remained only on paper.

Principles / Ratio

1. Section 125 is a secular and protective provision that applies to everyone.
2. The personal law rule limiting maintenance to iddat works only when the wife can maintain herself.
3. If the wife is dependent, she will get relief under Section 125.
4. The payment of mehr does not end the duty to pay maintenance.

Impact and Aftermath

The judgment was a turning point. On one hand it strengthened the rights of divorced Muslim women; on the other it fuelled a political and religious debate.

The Muslim Women (Protection of Rights on Divorce) Act, 1986

• Following the decision, Parliament passed this Act in 1986.
• Its stated purpose was to protect the rights of divorced Muslim women. According to critics, its real purpose was to save the earlier position under personal law.
• The Act generated considerable controversy, and its validity came up in 2001 in the Danial Latifi case.

The politics that followed

This is the reason the case is so famous in constitutional history.

• Some religious organisations called the decision an interference in personal law, and there were large-scale protests.
• The Rajiv Gandhi government of the time first supported the decision, but later brought in the 1986 Act, which was seen as an attempt to limit the impact of the decision.
• In protest, the then Union Minister of State, Arif Mohammad Khan, resigned from the government.

The Uniform Civil Code debate

• The debate on the Uniform Civil Code picked up pace from this point.
• In 1995, in the Sarla Mudgal case, the Supreme Court again stressed the need for Article 44.
• Goa already has a common civil code in force.
• In 2024, Uttarakhand enacted a Uniform Civil Code law, which came into force from January 2025.

The question that Shah Bano raised is still alive today.

Recent development

Significance

The Shah Bano case remains a classic example of the Supreme Court placing a secular, protective law above the shield of personal law.

Exam Points

Case 11: D.C. Wadhwa v. State of Bihar (1986)

▶ Watch this part of the lecture (1:20:46)

This case concerns a special power of the executive: the power to issue ordinances. What happens if a Governor keeps bringing back the same law again and again, for years, without ever getting the Assembly's approval? That would be a danger to democracy. If there were no limit on this power, the Governor would effectively become a "mini-Parliament". This was the question before the Supreme Court in D.C. Wadhwa.

Bench and Date

• Decided on 20 December 1986.
• Five-judge bench led by Chief Justice P.N. Bhagwati.

Facts

• The case began with a professor's research. Dr. D.C. Wadhwa was a professor of economics at the Gokhale Institute of Politics and Economics, Pune.
• He noticed a strange practice in Bihar: the government kept issuing the same ordinance again and again, without ever getting it passed as a law by the Assembly. As soon as the Assembly's session ended, the very same ordinance would be re-issued.
• According to his research, between 1967 and 1981, 256 ordinances were re-promulgated in Bihar in this manner.
• One of them, the Bihar Sugarcane (Regulation of Supply and Purchase) Ordinance, 1968, was re-promulgated 39 times and kept alive for about 14 years.

The four petitioners

There were four petitioners in all, which makes the case interesting. All four filed a writ petition in the Supreme Court under Article 32. Their case was that repeatedly issuing ordinances was unconstitutional, because the Governor was bypassing the legislature and doing the work of law-making himself.

Petitioner	Grievance	Court's finding on maintainability
Dr. D.C. Wadhwa	Filed the petition in public interest.	Valid: every citizen has the right to be governed only by constitutionally valid laws, and bringing such a petition in public interest is lawful.
A farmer	Under the Bihar Forest Produce (Regulation of Trade) Ordinance, 1983, he could not sell his forest produce to anyone except the State and its authorised agents.	Directly affected; the case was maintainable for him.
A student	His studies were affected by the Bihar Intermediate Education Council Ordinance, 1983.	Valid: although the bill was pending, the ordinance itself was active.
A brick manufacturer	His business had been placed under strict control by the Bihar Bricks Supply (Control) Ordinance.	Directly affected; the case was maintainable for him.

Issues

1. Locus standi: did the petitioners have the legal right to file the case? The traditional rule was that unless a person had suffered direct harm, he had no locus standi and could not approach the court.
2. Could the Governor keep enforcing a temporary law again and again without ever turning it into a permanent law, and did this go against Article 213?

Article 213: The Governor's Ordinance Power

• Article 213 gives the Governor the power to issue ordinances.
• Conditions: the State legislature is not in session, and the Governor is satisfied that circumstances exist which make immediate action necessary.
• The Governor can then make a temporary law called an ordinance, which has the same effect as an Act of the Assembly.
• The power is not permanent. Once the legislature reassembles, the ordinance lasts only six weeks; if the legislature disapproves it before that, it ends even earlier.
• There can be a gap of a maximum of six months between two sessions.
• If the Assembly does not pass it as an Act, it automatically lapses.
• The President has the same power under Article 123.

Arguments of the State of Bihar

1. The petitioners had no locus standi at all.
2. Two ordinances had already become Acts and a third was under consideration in the Assembly, so the petition had lost its purpose.
3. The petitioners were outsiders with no personal interest, and a petition filed in the name of public interest was not maintainable.
4. The issue was merely academic; once an ordinance had lapsed or become an Act, the court should not waste time on it.
5. The court could not judge the Governor's satisfaction. Whether there was an emergency-like situation was for the Governor alone to decide.

Analysis of the Supreme Court

Maintainability and locus standi

• The Bihar government's objections were not valid.
• When the petition was filed, the ordinances were still active.
• The farmer and the brick manufacturer were directly affected; the student was affected by the education ordinance; and the professor's petition was valid because every citizen has the right to be governed only by constitutionally valid laws (see the table above).
• The case was not an academic issue. It was a serious constitutional question, because the ordinance power was being misused. Answering it was necessary, or democracy would be damaged.

Nature of the ordinance power

• An ordinance is an emergency power, not a tool for regular law-making.
• It can be brought only when the legislature is not in session and immediate action is required.
• Under the Constitution, the right to make laws belongs to the legislature, not the executive.
• If the executive keeps issuing ordinances again and again, it bypasses the democratic process.
• The ordinance power cannot be used for political goals.
• Since the Constitution granted this power, the Constitution has also set its limits.

Fraud on the Constitution

The Court used a strong phrase: re-promulgating the same ordinance again and again, without ever placing it before the legislature, is a fraud on the Constitution and amounts to a colourable exercise of power. The Bihar government had taken away the legislature's own role. For years, laws had been running through ordinances, which was completely against the democratic structure.

Judgment (Held)

• The Bihar Intermediate Education Council Ordinance, 1983 was declared unconstitutional and void.
• Routinely re-promulgating ordinances, without ever bringing them before the legislature, is unconstitutional.
• The executive, that is, the Governor, cannot be made a substitute for the legislature.
• One small exception: if in a particular session the legislature had too much work or too little time, and the bill could not be passed for that reason alone, such re-promulgation would not be questioned.

Later Development: The Governor's Satisfaction

The Bihar government had argued that the Governor's satisfaction could not be examined by the court. In D.C. Wadhwa, the Court accepted this, but said that the question here was not about satisfaction; it was about the power to repeatedly re-promulgate an ordinance.

Significance

• The Court did not say that the ordinance power is wrong in itself. The framers of the Constitution gave this power because, when the legislature is not in session, there can sometimes be an immediate need for a law.
• D.C. Wadhwa simply ensured that this extraordinary power does not become an alternative to ordinary law-making.
• The same principle applies to the President's ordinances, because the language of Article 123 and Article 213 is almost identical.
• D.C. Wadhwa became a landmark precedent: an ordinance is an emergency tool, not a permanent shortcut for law-making, with a practical maximum life of about seven and a half months.
• Respect for the Constitution and the supremacy of the legislature are necessary for every democratic State.

Exam Points

Case 12: ADM Jabalpur v. Shivkant Shukla (1976)

▶ Watch this part of the lecture (1:29:37)

D.C. Wadhwa showed how the misuse of executive power can weaken democracy. ADM Jabalpur raised a question directly about human liberty: could a person be thrown into jail for no reason, with no trial, no lawyer and no judge, while the courts said there was nothing they could do? This is what happened during the Emergency of 1975, and the question became the biggest test of India's Constitution.

ADM Jabalpur v. Shivkant Shukla is also known as the Habeas Corpus case. It is considered the most controversial judgment in India's legal history.

Background: The Emergency of 1975

• 25 June 1975: the President declared a National Emergency under Article 352, on the ground of internal disturbance.
• 27 June 1975: another Presidential order came under Article 359(1). It said that during the Emergency, the right to approach the court for the enforcement of three fundamental rights would remain suspended:
  • Article 14;
  • Article 21, the right to life and personal liberty; and
  • Article 22, protection against arrest and detention.
• After this, many people were arrested without trial under a special law, the Maintenance of Internal Security Act, 1971 (MISA).

Facts

• Many detained people, like Shivkant Shukla, went to the High Courts. They said they had been arrested illegally, that the procedure under MISA had not even been followed, and that they should be released immediately.
• They sought a writ of habeas corpus.

Stand of the High Courts

Many High Courts, including Allahabad, Delhi, Bombay, Karnataka and Madhya Pradesh, held that there was an Emergency and the enforcement of rights was suspended, but if a detention was illegal, made in bad faith, or the law had not been followed, the court could still intervene. Some detenus even got relief. The government then approached the Supreme Court.

Issue

During the Emergency, does a person have the right to approach a High Court at all? In other words, when the enforcement of Article 21 is suspended, can a habeas corpus petition still be filed under Article 226?

Arguments

On behalf of the detenus

• The enforcement of fundamental rights had been suspended, but that did not mean every right had disappeared. Common law, statutory rights, natural justice and legal procedure were all still alive.
• Article 226 gives the High Court the power to issue writs, and that power still existed.
• The order under Article 359 only bars the enforcement of fundamental rights; approaching the court against an illegal detention should still be possible.
• The detention was made under MISA, but if the procedure under MISA itself had not been followed, or the intention was in bad faith, the detention was illegal and the court could examine it.

On behalf of the State (ADM Jabalpur)

• During an Emergency, the country's interest comes first; military, economic and security interests are most important.
• The Presidential order under Article 359(1) clearly said that rights like Article 21 could not be enforced. If Article 21 itself could not be enforced, a habeas corpus writ could not be filed either.
• Section 16A(9) of MISA said that the grounds for detention could be kept secret, so there was no need to disclose the reason for detention to the court.
• During the Emergency, the court had no jurisdiction at all, and the arrested person had no locus standi.

A famous exchange during the hearing

Justice H.R. Khanna asked Attorney General Niren De whether there would still be no remedy if an officer took away a person's life. The Attorney General answered that there would be no remedy in court as long as the Emergency lasted.

Judgment (Held)

• Decided on 28 April 1976 by a five-judge bench, by a majority of 4:1.
• Bench: Chief Justice A.N. Ray, Justice H.R. Khanna, Justice M.H. Beg, Justice Y.V. Chandrachud and Justice P.N. Bhagwati.

Majority holding

• The majority accepted the State's view. Once the enforcement of the right to life and liberty had been suspended, the court could not restore it.
• Section 16A(9) of MISA was held constitutionally valid. According to Chief Justice Ray, it was a rule of evidence, so neither the detenu nor the court could demand the grounds of detention.
• During the Emergency, no person had the locus standi to file a habeas corpus writ petition.
• Even if there had been a violation of the procedure established by law, the court could do nothing as long as Article 21 remained suspended.

Reasoning of the majority

Writing only the dissent in the examination would be an incomplete answer, so the majority's reasoning must also be known:

• Once the Constitution came into force, the right to life and personal liberty was contained only in Article 21; Article 21 was its only source.
• If its enforcement was suspended, no separate right survived in the name of common law or natural law.
• During an Emergency, it is the executive that assesses the country's security, and the courts should not interfere in that.

Dissent of Justice H.R. Khanna

This is the most important part of the case.

• Even if the enforcement of Article 21 was suspended, the State still could not take away a person's life and liberty without the authority of law.
• The right to life is not a gift given by the Constitution. Article 21 is not the only source of this right.
• In civilised societies governed by the rule of law, life and personal liberty are a person's most precious right, and this right existed even before the Constitution was made.
• If someone is arrested without reason, without procedure, and is also denied the right to approach the court, that is dictatorship, not democracy.
• The very meaning of the rule of law is that the government too is under the law.
• The Presidential order only barred the remedy of approaching the court; it did not extinguish the rule of law.
• No State can take away a person's liberty without the authority of law, and this principle is older than the Constitution itself.
• Habeas corpus has been regarded for centuries as the greatest shield of personal liberty, and it is needed most at a time like an Emergency.

Point	Majority (4 judges)	Justice H.R. Khanna (dissent)
Source of the right to life and liberty	Article 21 is its only source after the Constitution came into force.	The right is not a gift of the Constitution; it existed before the Constitution, and Article 21 is not its only source.
Effect of suspension under Article 359	No separate right survives under common law or natural law.	Only the remedy is barred; the rule of law is not extinguished.
Illegal detention during the Emergency	The court can do nothing even if the procedure established by law is violated.	The State cannot take away life and liberty without the authority of law.
Role of courts in an Emergency	The executive assesses security; courts should not interfere.	Habeas corpus is needed most at a time like an Emergency.

Why the dissent is considered so powerful

• Four judges were saying that even if a detention during the Emergency was illegal, a person still could not approach the court. Only one judge was saying that liberty is a person's most precious right, without which life has no meaning.
• Justice Khanna reminded everyone that a dissent given in the final court is "an appeal to the intelligence of a future age", made in the hope that some future decision will correct the mistake.
• Justice Khanna was next in line to become Chief Justice, and he knew that the price of this dissent might be losing that post. That is exactly what happened: in January 1977, Justice M.H. Beg, who was junior to him, was made Chief Justice of India, and Justice Khanna resigned.
• His dissent became an immortal voice for democracy.

The Final Position in Short

1. During the Emergency, the enforcement of Article 21 is suspended, so the court cannot entertain a habeas corpus writ.
2. Section 16A(9) of MISA is constitutional, and the provision keeping the grounds of detention secret is valid.
3. During the Emergency, no one has the locus standi to approach a High Court under Article 226 against illegal detention.

After this judgment, many political prisoners remained in jail without trial. That is why the decision is considered the low point of the judiciary, and the dissent of Justice Khanna its moral high point. ADM Jabalpur is often called the darkest chapter of the Indian judiciary.

Aftermath: How History Corrected the Decision

1. Forty-fourth Constitutional Amendment, 1978:
   • Under Article 359, even during an Emergency, the enforcement of Article 20 and Article 21 cannot be suspended.
   • The words "internal disturbance" in Article 352 were replaced with "armed rebellion", to make it harder to misuse the Emergency.
2. Justice P.N. Bhagwati, who had been part of the majority, publicly admitted years later that his decision had been wrong.
3. K.S. Puttaswamy v. Union of India (2017), the right to privacy case: a nine-judge bench expressly overruled ADM Jabalpur.

Exam Points

The real test of any democracy comes when the country is in a crisis. Justice Khanna showed that even one voice is enough if it stands with truth and the Constitution. Law does not exist only for the government; it exists to protect the basic rights of the people.

Case 13: Dheeraj Mor v. High Court of Delhi (2020)

▶ Watch this part of the lecture (1:40:07)

ADM Jabalpur showed how important the independence and courage of the judiciary are. Dheeraj Mor raises a practical question from inside the judiciary itself: who can become a District Judge, and can people who are already in judicial service also apply through the Bar quota? The entire case turns on the interpretation of Article 233.

Bench and Date

• Decided on 19 February 2020.
• Three-judge bench: Justice Arun Mishra, Justice Vineet Saran and Justice S. Ravindra Bhat.

Background: Three Ways to Become a District Judge

Channel	Share at the time of Dheeraj Mor	Share after May 2025
Promotion of judicial officers	About 65%	50%
Limited departmental competitive exam for judicial officers	About 10%	25%
Direct recruitment from the Bar (practising advocates from outside)	25%	25%

• At the time of Dheeraj Mor, about 75% was for judicial service and 25% for the Bar.
• In May 2025, the Supreme Court raised the share of the departmental exam back to 25%, so the split is now 50 : 25 : 25.
• The dispute in Dheeraj Mor was whether people already in judicial service could also apply under the 25% direct recruitment quota.

Facts: Three Categories of Petitioners

1. Prior practice: persons currently in judicial service who had practised as advocates for seven years before joining the service. They argued they could apply through the Bar quota.
2. Judicial service experience: judicial officers who had completed seven years of judicial service and wanted this experience to be treated as equal to the experience of an advocate.
3. Mixed experience: persons with a few years as an advocate and a few years as a judicial officer, adding up to seven years in total. They too wanted the chance to apply under the Bar quota.

Issues

1. What is the correct interpretation of Article 233?
2. Are the High Court rules that stop judicial officers from applying under the Bar quota unconstitutional, that is, ultra vires?
3. Can judicial officers below the rank of District Judge compete with outside lawyers for the post of District Judge?

Constitutional Provisions Involved

Provision	Content
Article 233(1)	The Governor makes appointments, postings and promotions of District Judges in consultation with the High Court.
Article 233(2)	A person not already in the service of the Union or a State can become a District Judge only if he has been an advocate or pleader for at least seven years, and the High Court recommends him.
Article 234	Recruitment of the subordinate judiciary, other than District Judges.
Article 235	The High Court's control over the subordinate courts.

Arguments of the Petitioners

• Article 233(2) points to two sources: the Bar and judicial service.
• A person who had practised for seven years before entering judicial service should have the right to apply under the Bar quota.
• In several places, combined experience (as both a judge and an advocate) is counted, so it should be counted here too.
• The High Court rules that stop judicial officers from applying under the Bar quota violate Article 233.
• Earlier judgments relied on:
  • Chandra Mohan v. State of Uttar Pradesh (1966): Article 233 does not exclude people from judicial service.
  • Vijay Kumar Mishra (2016): a judicial officer could apply, but would have to resign from service before appointment.

Arguments of the Respondents (the High Courts)

• Under Article 233(2), direct recruitment happens only from the Bar.
• A person already in judicial service is not even eligible for direct recruitment; such a candidate must become a District Judge through promotion.
• These officers joined judicial service of their own will, so they could not now claim the Bar quota.
• Their path was clear: promotion and the limited departmental exam.

Analysis of the Supreme Court

Justice Arun Mishra: the two-boats principle

• The system already gives judicial officers chances of their own: the limited competitive exam and promotion.
• If a person remains an advocate and applies under the Bar quota, that is allowed. But once a person has joined judicial service, he cannot claim the Bar quota anymore. One cannot have one foot in each of two boats at the same time.
• Purpose of the Bar quota: it exists so that practising lawyers also enter the judiciary. An advocate has real experience of the courtroom and a different way of thinking, which is healthy for the judiciary. The same thinking leads to direct appointments from the Bar in the High Courts and the Supreme Court as well.
• For direct recruitment, a candidate must be in active practice on the cut-off date. Experience in judicial service will not count, and mixed experience as both a judge and an advocate will not count either.

Justice S. Ravindra Bhat: two categories and diversity of thought

• The Constitution has created only two categories:
  1. advocates with seven years of practice; and
  2. people in judicial service, for whom the path of promotion has been provided. The Bar quota is not for them.
• The petitioners called this discrimination, but it is not discrimination; it is the Constitution's own design, a constitutionally permitted classification.
• The High Court rules are valid and consistent with the mandate of Articles 233 to 235.
• Special emphasis on the thinking behind the Bar quota: diversity of thought. The framers wanted outsiders to enter the judiciary too, so that new thinking, a new approach and a connection with the public would enter the system.
• An advocate holds a unique position, standing between the public, the client and the court, and brings a fresh perspective.

Judgment (Held)

1. People in judicial service, such as a Civil Judge, can become a District Judge only in two ways: through promotion or through the limited competitive exam.
2. The power to appoint, post and promote District Judges lies with the Governor, but only in consultation with the High Court and subject to the High Court's control.
3. Eligibility is decided by rules made under Articles 234 and 235.
4. For direct recruitment, one must be an advocate. Under Article 233(2), at least seven years of practice is required, and the candidate must be an advocate both on the cut-off date and at the time of appointment.
5. A person who is in judicial service, or whose experience is mixed, cannot apply under the Bar quota.
6. The High Court rules are completely constitutional and do not go against Articles 14, 16 and 233.
7. The view taken in Vijay Kumar Mishra (2016) was held to be wrong.

Later Development: Dheeraj Mor Overruled

This law has since changed, and this is the most important update for the examination.

Point	Dheeraj Mor (2020)	Rejanish K.V. v. K. Deepa (2025)
Bench	Three judges	Five-judge Constitution Bench led by Chief Justice B.R. Gavai
Can judicial officers apply under the direct recruitment (Bar) quota?	No, on the basis of the two-boats principle	Yes, if combined experience as advocate and judicial officer is seven years
Mixed experience	Does not count	Counts, as of the date of application
Other conditions	Must be an advocate on the cut-off date and at the time of appointment	Minimum age of 35 years; the ruling is prospective

Exam Points

Case 14: I.C. Golaknath v. State of Punjab (1967)

▶ Watch this part of the lecture (1:49:03)

Waman Rao belongs to a later chapter of the basic structure story. Golaknath is the big turning point in that same story, a case that changed the entire direction of constitutional law.

Bench, date and the central question

• Date of decision: 27 February 1967.
• Bench: 11 judges, led by Chief Justice K. Subba Rao. The question was so big that a bench of this size was set up.
• Central question: Can Parliament amend fundamental rights or not?

Facts

• Two land reform Acts were challenged:
  1. the Punjab Security of Land Tenures Act, 1953; and
  2. the Mysore Land Reforms Act, 1961.
• The Golaknath family of Jalandhar, Punjab held fairly large agricultural land. Under the Punjab Act, a large part of it was declared surplus.
• Both Acts had been placed in the Ninth Schedule of the Constitution by the Seventeenth Amendment Act, 1964. As a result, they could not be challenged on the basis of fundamental rights.
• The petitioners approached the Supreme Court under Article 32 and argued that:
  • the Seventeenth Amendment was wrong;
  • fundamental rights could not be amended at all; and
  • the two earlier decisions of the Supreme Court, Shankari Prasad and Sajjan Singh, were wrongly decided.

The earlier position: Shankari Prasad and Sajjan Singh

Golaknath became so important because two judgments had already been given on this very question.

Issues

1. Does Article 368 only lay down the procedure for amendment, or does it also grant Parliament the power to amend?
2. Can fundamental rights be amended?
3. Does a constitutional amendment fall within the meaning of "law" in Article 13(2)?
4. Are fundamental rights permanent, incapable of ever being changed?
5. Does the Seventeenth Amendment violate Article 13(2)?
6. Are the land reform Acts unconstitutional?

Judgment of the majority (6:5)

• The majority decision came by 6 to 5.
• The majority opinion was written by Chief Justice Subba Rao (for himself and four other judges). Justice Hidayatullah agreed with him separately, which made the majority six.
• Parliament cannot take away or curtail fundamental rights.
• For the first time, the Court held that a constitutional amendment is also "law" within the meaning of Article 13(2). If any law takes away or abridges fundamental rights, it is void.
• Until then, "law" in Article 13 had been understood to mean only ordinary legislation. In Golaknath, the Court held that an amendment is also law, because it too is made by Parliament. So if an amendment injures fundamental rights, it violates Article 13(2).

Source of the amending power

• Opinion of Chief Justice Subba Rao (joined by four judges): Article 368 only lays down the procedure for amendment. The power to amend comes from Parliament's general legislative power, that is, Articles 245, 246 and 248, of which Article 248 is the residuary power. Since this power is legislative, its result is also law, which falls under Article 13.
• Justice Hidayatullah: did not agree. The power to amend does not come from Articles 245 and 248, or from any entry in the Seventh Schedule. The power is sui generis, a power of its own unique kind.
• So the residuary-power argument was held by only five of the eleven judges.
• According to Chief Justice Subba Rao, the Constitution had given fundamental rights a transcendental position and had kept them out of Parliament's reach.

Doctrine of prospective overruling

The practical problem: if an amendment is also law, earlier amendments such as the First Amendment (1951), the Fourth Amendment (1955) and the Seventeenth Amendment (1964) would technically all have to be declared unconstitutional. Fifteen or sixteen years of land reforms would collapse in one stroke.

The solution: the Court adopted a new doctrine, used for the first time in Indian law, the doctrine of prospective overruling.

• Past amendments would be treated as valid.
• From that day on, no amendment could touch fundamental rights.
• The judgment would apply only to the future, not to the past, so that there would be no legal chaos.
• The doctrine was already used in American courts; it was accepted in India for the first time in Golaknath.
• The Court's logic: since the Constitution is evolving, the law should evolve too.

Three conditions laid down by the Court:

1. The doctrine applies only in constitutional matters.
2. Only the Supreme Court can apply it.
3. The Court decides, at its own discretion, how wide its scope should be.

Separate view of Justice Hidayatullah

• He did not rely on prospective overruling.
• Older amendments like the First and the Fourth had already been accepted by everyone for a long time, so they could not now be challenged.
• He held that the particular section of the Seventeenth Amendment which had placed 44 State Acts in the Ninth Schedule was invalid.
• Even so, in his view, both the challenged Acts remained valid, because they had the protection of Article 31A and the President's assent.

Point	Chief Justice Subba Rao (with four judges)	Justice Hidayatullah
Source of amending power	Articles 245, 246 and 248 (residuary power); Article 368 is only procedure	Sui generis; not from Articles 245 and 248 or any Seventh Schedule entry
Prospective overruling	Adopted	Not relied on
First and Fourth Amendments	Saved by prospective overruling	Accepted by everyone for a long time; cannot now be challenged
Seventeenth Amendment	Not invalidated (prospective overruling)	Section placing 44 State Acts in the Ninth Schedule invalid
Challenged land reform Acts	Survived	Valid, protected by Article 31A and the President's assent

Dissenting opinion (five judges)

1. Source of power: the power to amend lies in Article 368, not in Articles 245 and 248. Article 368 itself grants the power and also lays down the procedure.
2. Meaning of "law": law in Article 13(2) means ordinary law, not a constitutional amendment. An amendment becomes part of the Constitution the moment it is passed. So fundamental rights too can be amended. If the Constitution is evolving, fundamental rights may also need to change from time to time; making them permanent forever is not practical.
3. Prospective overruling was wrong: the doctrine should not apply in the Indian context, because when a court declares a law unconstitutional, that law is invalid from the very beginning.
4. Stare decisis: respect for earlier decisions. So many laws in the country had been made relying on Shankari Prasad and Sajjan Singh that reversing them now would be wrong and could create legal chaos.

Point	Majority	Dissent
Is a constitutional amendment "law" under Article 13(2)?	Yes	No; "law" means ordinary law
Can fundamental rights be taken away or abridged by amendment?	No	Yes
Source of amending power	Subba Rao opinion: Articles 245, 246, 248; Hidayatullah: sui generis	Article 368 (power and procedure)
Prospective overruling	Adopted (Subba Rao opinion)	Wrong; an unconstitutional law is void from the beginning
Shankari Prasad and Sajjan Singh	Overruled	Should stand (stare decisis)

Final verdict (held)

• Fundamental rights cannot be taken away or curtailed through an amendment.
• An amendment is law within Article 13(2), so it must respect fundamental rights.
• Shankari Prasad and Sajjan Singh stood overruled.
• Because of prospective overruling, the First, Fourth and Seventeenth Amendments were not invalidated, and the challenged land reform Acts also survived.
• From that day on, Parliament could no longer touch Part III in this way.

Aftermath

Nath Pai's private member's bill (1967)

There was an immediate stir in Parliament. In 1967 itself, Member of Parliament Nath Pai brought a private member's bill to change Article 368, so that Parliament would clearly get the power to amend fundamental rights. The bill could not be passed, but its idea was fulfilled in the Twenty-fourth Amendment of 1971.

Short-term impact and the Twenty-fourth Amendment (1971)

In the short term, Parliament's power was suddenly restricted and fundamental rights became, in a sense, untouchable. This was not acceptable to Parliament, and the Twenty-fourth Constitutional Amendment came in 1971:

• It added clause (4) to Article 13, providing that Article 13 would not apply to an amendment made under Article 368.
• Article 368 was amended to state clearly that Parliament could amend any provision of the Constitution in exercise of its constituent power.
• When such an amendment bill is presented to the President, the President is bound to give assent to it. (Earlier, the bill was presented to the President for assent, but assent was not made obligatory.)

Long-term impact: the basic structure doctrine

In the long term, Golaknath paved the way for the basic structure doctrine.

Political context

A few weeks after the decision, in 1967, Chief Justice Subba Rao resigned from his post and became the opposition's candidate in the presidential election, which he lost. This made the political debate around Golaknath even sharper.

Criticism and lasting contributions

• Criticism: deriving the amending power from the residuary power in Article 248 was a weak argument, because the Constitution had set aside an entire separate Part for amendment, namely Part XX and its Article 368.
• Permanent contribution 1: the doctrine of prospective overruling, which the Court went on to use again.
• Permanent contribution 2: the idea that fundamental rights are not an ordinary provision but the soul of the Constitution, an idea later refined in the form of the basic structure.

Exam points

Case / Amendment	Year	Position
Shankari Prasad	1951	An amendment is not law
Sajjan Singh	1964	An amendment is not law
Golaknath	1967	An amendment is law; fundamental rights cannot be amended; prospective overruling
Twenty-fourth Amendment	1971	Enacted to undo the effect of Golaknath
Kesavananda Bharati	1973	Power to amend exists, but limited by the basic structure

Significance: Golaknath was a turning point which taught that the Constitution belongs not only to Parliament but to the public, and that fundamental rights are not a privilege but guarantees.

Case 15: Shreya Singhal v. Union of India (2015)

▶ Watch this part of the lecture (2:00:19)

Bench, date and the question

• Date of decision: 24 March 2015.
• Bench: Justice J. Chelameswar and Justice R.F. Nariman; judgment written by Justice Nariman.
• Regarded as the landmark case on internet freedom. It came before Anuradha Bhasin in time.
• Question: whether the government could restrict free speech on the internet so far that every annoying or offensive remark became a crime.

Background and facts

• Many people were arrested under Section 66A of the Information Technology Act, 2000, simply because they had posted something on Facebook or the internet that the authorities found offensive.
• The most discussed incident: in November 2012, two young women were arrested in Palghar, Maharashtra. One had questioned, on Facebook, the shutdown that followed the death of a major political leader in Mumbai; the other had merely liked that post.
• Law student Shreya Singhal then filed a public interest petition under Article 32. Several other petitions later joined it.

Provisions under challenge

Section 66A, Information Technology Act, 2000

• Not originally part of the Act. It was inserted by the 2008 amendment, which came into force in 2009.
• It made it an offence to send, from a computer or communication device:
  • information that was grossly offensive or of a menacing character; or
  • false information sent persistently to cause annoyance, inconvenience, danger, insult, enmity or ill will.
• Punishment: imprisonment up to three years, along with fine.

Other provisions challenged

• Section 69A, Information Technology Act: the power to block websites.
• Section 79, Information Technology Act: the liability of intermediaries.
• Section 118(d), Kerala Police Act.

Issues

1. Did Section 66A violate Article 19(1)(a), the freedom of speech and expression?
2. Were Section 69A and Section 79 constitutionally valid?
3. Should Section 118(d) of the Kerala Police Act be struck down?

Arguments

Petitioners	Government
Section 66A was vague: words like "annoyance", "inconvenience" and "grossly offensive" had no definition at all.	A law can be declared unconstitutional only when it clearly violates the fundamental rights in Part III.
The section did not fit within any of the eight restrictions in Article 19(2).	The mere possibility that a law might be misused does not make it invalid.
It would have a chilling effect: people would stop expressing themselves on the internet out of sheer fear.	Section 66A was enacted because new kinds of wrongs occur on the internet that do not occur through other mediums.
Punishing internet users separately violated the equality principle in Article 14.	The reach and speed of the internet are different, so the classification is reasonable and does not violate Article 14.

Reasoning of the Court

1. Discussion, advocacy and incitement

The Court described three stages for understanding freedom of speech:

Stage	Meaning	Constitutional position
Discussion	Simply talking and sharing one's ideas	At the core of free speech, however unpopular
Advocacy	Promoting one's ideas, however unpopular they may be	At the core of free speech, however unpopular
Incitement	Directly provoking an illegal act	Only at this level can a restriction be imposed under Article 19(2)

Section 66A made even discussion and advocacy punishable, which is not permissible.

2. Vagueness and overbreadth

• Words like "grossly offensive", "annoyance" and "inconvenience" can mean different things to different people.
• Terms in criminal law should be clear, so that the common man knows what is allowed and what is not; otherwise there is a risk of misuse.
• Overbreadth: the law was so wide that it caught even completely innocent speech within its scope.

3. No connection with the grounds in Article 19(2)

Article 19(2) lists eight grounds:

1. sovereignty and integrity of India;
2. security of the State;
3. friendly relations with foreign States;
4. public order;
5. decency or morality;
6. contempt of court;
7. defamation; and
8. incitement to an offence.

Section 66A had no direct connection with any of these grounds. What link does "annoyance" have with public order? What link does "grossly offensive" have with the sovereignty of India? That link was simply absent.

4. The public order test

• The Court asked whether the provision caught only speech that disturbed public order, or also mere remarks that hurt a single individual. Section 66A was missing the element of public order altogether.
• Whether a message reached one person or a million, the law treated both the same way.
• There was no requirement that the message create any immediate danger.
• There must be a proximate (direct and close) relationship between the speech and public disorder, like a spark landing on a heap of gunpowder.

5. Chilling effect

• If people become too afraid to express their opinions at all, the very foundation of democracy is shaken.
• Section 66A was so broad that any dissenting opinion could fall within it.
• The government had assured the Court that the law would not be misused. The Court said that governments come and go, but the law remains; the assurance of any one government cannot make a vague law constitutional.

6. The Article 14 argument

On Article 14, the Court agreed with the government: the internet is different from other mediums, and making a separate law for it is not, by itself, discrimination. But Section 66A still failed the test under Article 19.

Judgment (held)

Provision	Result	Reason
Section 66A, IT Act	Unconstitutional in its entirety	Violated Article 19(1)(a) and could not be saved under Article 19(2); vagueness and overbreadth meant a high risk of misuse and a chilling effect on free speech
Section 118(d), Kerala Police Act	Struck down	Same problem: "causing annoyance in an indecent manner" was just as vague
Section 69A, IT Act (blocking)	Constitutionally valid	Strict safeguards: blocking only on specific grounds related to Article 19(2); written reasons mandatory; hearing before a committee; the originator of the content can also be heard
Section 79, IT Act and the Intermediary Guidelines Rules, 2011	Read down	An intermediary must act to remove content only on a court order or a government notification, and only when it relates to Article 19(2); acting on every random complaint is not necessary

Impact and later developments

• The judgment sent a historic message that free speech on the internet is just as protected as ordinary speech.
• After Section 66A was removed, no one could be arrested by taking shelter behind vague terms.
• If speech genuinely falls within one of the grounds in Article 19(2), action can still be taken.
• Even after the decision, police in many places kept registering cases under Section 66A.

Exam points

Case 16: Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly (2016)

▶ Watch this part of the lecture (2:09:28)

Bench, date and context

• Subject: federalism and the office of the Governor. A landmark for understanding, in a practical way, the scope of the Governor's discretion and the Supreme Court's judicial review.
• Context: the political crisis in Arunachal Pradesh.
• Date of decision: 13 July 2016.
• Bench: five-judge Constitution Bench led by Justice J.S. Khehar.
• Two questions: how much discretionary power does the Governor have, and how valid is the Speaker's power when a motion to remove him is pending?

Facts

• The Congress government in Arunachal Pradesh was led by Nabam Tuki and had a huge majority in an Assembly of 60 members.
• By 2015 the situation had changed: 21 Congress MLAs, 11 BJP MLAs and 2 independent MLAs turned against the Chief Minister.
• 21 Congress MLAs refused to attend the party meeting and alleged that the Chief Minister had wasted money and mismanaged funds.

Date	Event
October 2015	20 Congress MLAs and 2 independent MLAs wrote to the Governor complaining against the Chief Minister's government.
19 November 2015	13 MLAs (including 11 from the BJP and 2 independents) gave notice of a resolution to remove the Speaker and sent a copy to the Governor, demanding that the Assembly session be called early.
9 December 2015	The Governor, without consulting the Chief Minister or the Council of Ministers, advanced the Assembly session from 14 January 2016 to 16 December 2015, and decided that the resolution to remove the Speaker would be taken up first.
15 December 2015	Speaker Nabam Rebia disqualified 14 rebel Congress MLAs. On the same day, the Deputy Speaker set aside the disqualification order against those 14 MLAs.
The next day	At a sitting held outside the Assembly building under the chairmanship of the Deputy Speaker, the resolution to remove the Speaker was passed.

Proceedings in the Gauhati High Court

• Speaker Nabam Rebia challenged the Governor's actions before the Gauhati High Court, alleging misuse of power.
• The High Court held the Governor's and the Assembly's actions valid. In its view, the Governor's discretion under Article 163 and the proceedings of the legislature under Article 212 did not fall within the scope of judicial review.
• The matter reached the Supreme Court in appeal.

Issues

1. Was the Governor's decision to prepone the Assembly session constitutional?
2. Can the Speaker pass a disqualification order when a motion to remove him is pending?

Relevant constitutional provisions

Provision	Content
Article 163(1)	The Governor acts on the aid and advice of the Council of Ministers, except for functions where the Constitution expects him to act in his own discretion.
Article 163(2)	If a question arises whether a matter is within the Governor's discretion, the Governor's decision on that is final. Nabam Rebia clarified that the scope of discretion is determined by clause (1), and the finality given by clause (2) applies only to matters where the Constitution itself gives the Governor discretion. The Governor's discretionary power is therefore not unlimited.
Article 174	The Governor can summon, prorogue or dissolve the Assembly.
Article 179(c)	The Speaker can be removed by a resolution passed by a majority of all the members of the Assembly; 14 days' notice is required.
Article 181	While a resolution to remove the Speaker is under consideration in the House, the Speaker does not preside over that sitting.
Article 212	Proceedings of the legislature cannot be challenged in court on the ground of any irregularity of procedure. The Supreme Court has held that judicial review is possible where there is illegality or a constitutional violation.
Articles 190 and 191 with the Tenth Schedule	The process for disqualification of MLAs, in which the Speaker is expected to be impartial.

Arguments

Petitioners (the Speaker and the Chief Minister's side)

• The Governor had crossed his constitutional limits, and his conduct was unconstitutional.
• Article 163(2) had been misused; the Governor cannot claim discretionary power in every matter.
• Governance should happen only through the elected Council of Ministers, because the Governor holds a nominated post.
• Connecting Article 174 to the Governor's general discretionary power would be a wrong interpretation.

Rebel MLAs

• A Speaker facing a pending notice for his own removal cannot decide disqualification petitions, because he himself is an interested party.

Respondents

• Relied on Article 163: the Governor generally acts on the aid and advice of the Council of Ministers, but Article 163(2) gives him a discretion that lies outside judicial review.
• Article 174 gives the Governor the power to summon the Assembly, which falls within his discretion.

Judgment (held)

On the Governor's discretion

• The Governor's order of 9 December 2015 was quashed.
• The Governor cannot prepone a session without consulting the Chief Minister and the Council of Ministers.
• The power to summon, prorogue and dissolve the Assembly is normally exercised on aid and advice. This follows from reading Article 174 together with Article 163.
• The Governor's discretionary power is limited, and he cannot give it a broad interpretation on his own.
• The Governor cannot interfere with the Assembly's agenda and decide what will be taken up first.
• The Governor's actions fall within judicial review; they are not immune from it.
• The Governor's message, and all actions relating to that sitting of the Assembly, were declared unconstitutional.

On the Speaker

• When a notice for the Speaker's removal is pending, constitutional propriety demands that he should not decide the disqualification of MLAs under the Tenth Schedule. Doing so would be unconstitutional.

Relief: status quo ante

• The Supreme Court restored the status quo ante: the position was taken back to that on 15 December 2015, and the government led by Nabam Tuki was reinstated.
• Reinstating a government that had already been removed was an extraordinary step, which is why the case is considered historically very important.

Principle (ratio)

• Under Article 163, the Governor's discretion is limited; the Governor cannot use discretion everywhere.
• The Governor's actions fall within judicial review.
• The Governor's discretion is the exception, not the rule, and every exercise of discretion is subject to constitutional limits and judicial review.

Political aftermath

Within a few days of the decision, Congress chose Pema Khandu as its leader in place of Nabam Tuki, and a few months later large-scale defections took place. The political impact of the judgment was almost reversed, but its constitutional principle remained intact.

Significance

The office of the Governor is like a bridge between the Centre and the State. When this bridge becomes a tool of politics, federalism is weakened. That is why the Court repeatedly stressed that the Governor's discretion is the exception and not the rule.

Later development: Subhash Desai (2023)

Exam points

Case 17: Indra Sawhney v. Union of India (1992)

▶ Watch this part of the lecture (2:19:01)

Indra Sawhney v. Union of India is generally called the Mandal Commission case. It became the foundation of the reservation system in India and was a very big turning point for politics, society and equality together, not law alone. The creamy layer concept applied in Ashok Kumar Thakur has its roots in this case.

Constitutional background

• When the Constitution was framed, the framers knew that society had many differences of religion, culture and language, and that some communities were far behind socially, economically and educationally.
• To fill this gap, a provision for reservation was placed in the Constitution, especially in Article 16, which deals with equality in public employment.
• Article 16(1): gives everyone equality of opportunity in government jobs.
• Article 16(4): the State can provide reservation in appointments and posts for backward classes that do not have adequate representation in the services of the State.

History of reservation before Mandal

• 1902: Chhatrapati Shahu Maharaj of Kolhapur gave reservation to backward classes in the jobs of his state.
• Mysore State: backward classes got reservation on the recommendations of the Miller Committee, formed in 1918.
• Reformers like Jyotiba Phule had already been fighting for the rights of backward classes.
• 1953: after independence, the First Backward Classes Commission was formed under the chairmanship of Kaka Kalelkar, but its recommendations were not implemented.

The Mandal Commission and the office memoranda

Date	Event
1979	The government of Prime Minister Morarji Desai set up the Second Backward Classes Commission under Article 340, headed by B.P. Mandal (hence "Mandal Commission"). Its task was to study the social and educational condition of backward classes. Before the report came out, the Janata Party government fell in 1979.
31 December 1980	Report submitted, recommending 27% reservation for OBCs in government jobs. The Congress governments that followed did not implement it.
1989	The Janata Dal government came to power.
13 August 1990	By an office memorandum, the government headed by Prime Minister V.P. Singh implemented 27% reservation for OBCs in central government jobs. Big protests broke out across the country, both for and against reservation, with violence in many places.
25 September 1991	After the decision was challenged in the Supreme Court, the government of Prime Minister P.V. Narasimha Rao issued another office memorandum making two changes: (i) within the 27%, preference to the poorer sections among OBCs; (ii) an additional 10% reservation for economically backward people not covered by any existing reservation scheme.

The matter first went to a five-judge bench and was then referred to a nine-judge bench, because it had become a very big constitutional question.

Issues

1. Can caste by itself become a class, or is economic criteria alone sufficient to define backwardness?
2. Is Article 16(4) an exception to Article 16(1), or simply an example of classification within clause (1) itself?
3. Can backward classes be divided into "backward" and "more backward"?
4. Is the use of economic or other considerations allowed in reservation?
5. Is reservation in promotion possible?

Arguments

Petitioners	Government
Caste-based reservation would only strengthen the caste system, which goes against the goal of a welfare State.	Reservation is a way of giving backward classes their rightful claim.
It would leave eligible people behind and lower the standard of administration.	It is a continuation of the recommendations of earlier commissions.
The effect of the Mandal Commission report was like rewriting the Constitution.	These communities suffered injustice for centuries; this affirmative action is the first step toward correcting that injustice.

Judgment (held)

• Date: 16 November 1992.
• Bench: nine judges; majority of 6 to 3.
• Majority opinion: Justice B.P. Jeevan Reddy.
• Dissent: Justice T.K. Thommen, Justice Kuldip Singh and Justice R.M. Sahai.

The rules laid down remain the backbone of reservation law:

1. Caste and economic criteria: backward classes cannot be identified on economic criteria alone. Caste is also a relevant factor, and a caste can be a class in itself if it is socially backward. The 10% reservation of September 1991, based only on economic grounds, was struck down.
2. Article 16(4) and 16(1): Article 16(4) is not an exception to Article 16(1); it is an example of the reasonable classification already inherent in clause (1).
3. Article 16(4) and 15(4): the backward classes under Article 16(4) are different from the socially and educationally backward classes under Article 15(4), and their scope is wider.
4. Creamy layer: people within a backward class who have risen economically and socially do not get the benefit of reservation. The benefit should reach the really needy section of that class.
5. Sub-classification: backward classes may be classified into "backward" and "more backward".
6. 50% ceiling: total reservation will generally not exceed 50%, except in extraordinary situations, such as a population in remote areas cut off from the mainstream.
7. No reservation in promotion: Article 16(4) applies only to initial appointment. This part of the ruling was made prospective; where reservation in promotion was already running, it was allowed to continue for five years.

Directions given by the Court

• The government should fix criteria for identifying the creamy layer. Objections to those criteria could be raised only before the Supreme Court, not before any High Court or tribunal.
• A permanent body should be set up to handle complaints about including or excluding communities from the list of backward classes.
• Following this, the National Commission for Backward Classes Act came in 1993, and the creamy layer criteria were fixed on the report of an expert committee headed by Justice R.N. Prasad.

Developments after Indra Sawhney

Reservation in promotion

• Seventy-seventh Amendment (1995): added clause (4A) to Article 16, giving the State power to provide reservation in promotion for SCs and STs if they do not have adequate representation in public employment.

The State had to examine, on the basis of data, the backwardness of that class, its inadequate representation in public employment, and the impact on the efficiency of administration.

The 50% ceiling and EWS reservation

• One Hundred and Third Amendment (2019): Parliament gave 10% reservation for economically weaker sections (EWS).

Point	10% economic reservation (1991 office memorandum)	10% EWS reservation (2019)
Source	Executive office memorandum	One Hundred and Third Amendment, adding new clauses to the Constitution
Basis	Economic grounds only; did not fit within the scope of Article 16(4)	A separate constitutional basis for EWS
Fate in court	Struck down in Indra Sawhney (1992)	Upheld in Janhit Abhiyan (2022), 3:2; the majority held that the 50% ceiling does not apply to it

Present position

• Exclusion of the creamy layer in OBC reservation is mandatory.
• Reservation for SCs, STs and backward classes together is generally not allowed to exceed 50%, except in special circumstances. The 69% reservation in Tamil Nadu is an example of this debate.
• Following Janhit Abhiyan, the 10% EWS reservation can be given over and above the 50% limit.
• Caste, along with social and educational backwardness, can be considered together.

Significance

Indra Sawhney created a balanced formula that kept the upliftment of backward classes in mind while also giving due weight to merit and efficiency. Later amendments and political steps show that reservation is not only an issue of social justice but has also become a major topic of politics. Backward classes have been uplifted, but the journey is not yet over.

Exam points

Case 18: Kihoto Hollohan v. Zachillhu (1992)

▶ Watch this part of the lecture (2:30:02)

This is the case that saved the structure of India's anti-defection law while also placing a check on it through judicial review. Defection is described as a major disease of parliamentary democracy.

The matter concerned the disqualification of certain members of the Nagaland Legislative Assembly on the ground of defection. Petitions from several States, including Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa, were heard together with it as a batch.

Background: the problem of defection

• By the 1980s, political defection had become a big problem in India.
• Defection means an MLA or an MP leaving his own party and going over to another party.
• The kind of politics known as "Aaya Ram, Gaya Ram" became famous during this period.
• Consequences: governments would fall, the public mandate would be weakened and coalitions would break apart.

To solve this problem, Parliament passed the 52nd Constitutional Amendment in 1985, which added the Tenth Schedule to the Constitution. This Schedule is called the anti-defection law.

Under this law, an MLA or MP can be disqualified if he:

1. voluntarily gives up membership of his party; or
2. votes, or abstains from voting, against the party whip without permission.

When the law came into force, many petitions were filed arguing that it was unconstitutional because it restricted the legislators' freedom of speech and their right to dissent. It was in this context that Kihoto Hollohan came before the Supreme Court.

Facts

• Paragraph 6 of the Tenth Schedule gave the Speaker or Chairman of the House the power to decide which member had defected and who would be disqualified, and made the decision final.
• Paragraph 7 said that no court would have jurisdiction in this matter.
• Several MLAs challenged the amendment. Their main argument was that giving the Speaker such wide power was dangerous, because the Speaker himself comes from a political party, so his decision could not be impartial.
• The biggest point was that the Speaker's decision had been kept outside judicial review: a court could not even check it.

Issues

1. Constitutional validity of the Tenth Schedule: whether the anti-defection law violated the basic structure of the Constitution.
2. Judicial review: whether courts could review the Speaker's decision.
3. Ratification under Article 368(2): whether the amendment was valid without ratification by the States.
4. Ambiguity in the definitions: whether the meanings of defection, split and merger were clear.
5. Legislative immunity versus judicial oversight: whether the immunity given to legislators under Article 105 and Article 194 was complete, or whether the judiciary could check their actions.

Arguments

Petitioners (against the anti-defection law)

1. Freedom of speech and conscience: legislators have freedom of speech and freedom of conscience; voting against their own party should be their constitutional right.
2. Ambiguity and overbreadth: terms in the Tenth Schedule, such as "any direction", are very vague, can be misused, and allow the Speaker to take arbitrary decisions.
3. Need for ratification: Paragraph 7 shut out the judicial review of the High Courts and the Supreme Court, which affects the federal structure. The proviso to Article 368(2) says that if an amendment affects the Supreme Court, the High Courts, or provisions like Articles 136 and 226, ratification is necessary, by at least half of the State legislatures. This ratification had not taken place, so the amendment was invalid.
4. Legislative immunity: under Article 105(2), legislators get immunity for speech or a vote given in the House, so disqualifying them for that very vote would be unconstitutional.

Respondents (in support of the law)

1. The anti-defection law is necessary for democracy. If members keep changing parties again and again, governments keep falling and stability is destroyed.
2. Parliament has the power to make such a law, and giving the Speaker final authority is logical because he is the presiding officer of the House.
3. The law clearly distinguishes between defection and a split. Defection means changing parties for personal gain; a split or merger means a large group leaving the party together.
4. The law has not completely shut out the judiciary. If the Speaker's decision is mala fide or arbitrary, judicial review is possible, so the Speaker's power is not absolute.

Judgment (held)

Bench and majority

• Five-judge bench; decided by a majority of 3:2.
• Majority opinion written by Justice M. N. Venkatachaliah, joined by Justice K. Jayachandra Reddy and Justice S. C. Agrawal.

Validity of the Tenth Schedule

The Tenth Schedule is valid. The anti-defection law is constitutional and necessary to save democracy. It does not violate the legislators' freedom of speech, does not violate Articles 105 and 194, and does not breach the basic structure.

Paragraph 7 and the doctrine of severability

• A provision that completely shuts out judicial review affects provisions like Articles 136 and 226, and therefore required ratification by the States.
• Because that ratification had not taken place, Paragraph 7 was invalid.
• Applying the doctrine of severability, the Court severed only Paragraph 7; the rest of the Tenth Schedule remained valid.

Role of the Speaker: tribunal and limited judicial review

While deciding disqualification under Paragraph 6, the Speaker acts like a tribunal. His decision therefore falls within judicial review, but the review is limited. The Court can interfere only when the decision:

1. goes against the constitutional mandate;
2. is mala fide;
3. is made without following the rules of natural justice; or
4. is perverse.

Generally, the Court will not interfere before the Speaker gives his final decision. The legislature has to maintain discipline, but a check by the judiciary is also necessary for fairness.

Minority view (dissent)

Justice J. S. Verma and Justice L. M. Sharma dissented. The minority view is also asked in examinations.

• Paragraph 7 could not be separated from the rest of the Schedule, so the absence of ratification made the entire Tenth Schedule invalid.
• The Speaker, whose own post depends on the majority in the House, could not be regarded as an independent adjudicator.

Point	Majority (M. N. Venkatachaliah, K. Jayachandra Reddy, S. C. Agrawal JJ.)	Minority (J. S. Verma, L. M. Sharma JJ.)
Tenth Schedule	Valid; necessary to save democracy	Entire Schedule invalid for want of ratification
Paragraph 7	Invalid (no ratification), but severable	Not severable from the rest of the Schedule
Speaker	Acts as a tribunal; decision subject to limited judicial review	Cannot be regarded as an independent adjudicator, since his post depends on the House majority

Principle / ratio

• The anti-defection law (Tenth Schedule) is constitutionally valid and does not violate freedom of speech, Articles 105 and 194, or the basic structure.
• A provision completely excluding judicial review (Paragraph 7) needs ratification under the proviso to Article 368(2); without it, the provision is invalid and is severed.
• The Speaker deciding disqualification under Paragraph 6 acts as a tribunal and is subject to judicial review on limited grounds: violation of the constitutional mandate, mala fides, non-compliance with natural justice and perversity.

The majority also reasoned that the Tenth Schedule recognises the importance of political parties, because elections today are often fought more on the name and programme of the party than on the individual. A member who wins on a party ticket and later leaves the party breaks the trust of the voters. The anti-defection law protects that very trust, so it is not against democracy but in its favour.

Significance

The judgment struck a clear balance:

• the anti-defection law was upheld to check political defection; and
• the Speaker's decision was kept open to judicial review, so that the Speaker's power did not become absolute.

In India, therefore, party discipline and judicial oversight run in parallel.

Later developments

• 91st Amendment (2003): removed the provision on splits, that is, the protection available when one-third of the members separated. Now only a merger is protected, which requires the consent of two-thirds of the members of the legislature party. The same amendment also placed restrictions on defectors becoming ministers.

Exam points

Case 19: Joseph Shine v. Union of India (2018)

▶ Watch this part of the lecture (2:39:40)

This landmark judgment, at the meeting point of criminal law and personal liberty, struck down an old and much-debated section of the Indian Penal Code and took adultery out of the category of crime. It is regarded as a milestone for gender equality, privacy and personal liberty.

Bench and date

• Decided on 27 September 2018 by a five-judge Constitution Bench.
• Judges: Chief Justice Dipak Misra, Justice A. M. Khanwilkar, Justice R. F. Nariman, Justice D. Y. Chandrachud and Justice Indu Malhotra.
• The decision was unanimous.

Background: what Section 497 IPC said

• If a man had a sexual relationship with a woman whom he knew to be the wife of another man, and this happened without the consent or connivance of that woman's husband, it was the offence of adultery.
• Punishment: imprisonment for up to five years, or fine, or both.
• The punishment applied only to the man, not to the woman, not even as an abettor.
• The law proceeded on the assumption that the woman was a passive victim who had been seduced.

The real problem in the logic of the law

• If the husband gave consent, there was no offence. The question was not the woman's wish but the husband's permission.
• If a married man had a relationship with an unmarried woman or a widow, that was no offence.
• A wife could not file a case of adultery against her husband. Under Section 198(2) of the CrPC, only the husband could file a complaint for this offence.
• The entire structure was built as though the wife were the property of the husband.

Facts

Joseph Shine, who belonged to Kerala and was settled abroad, filed a petition directly in the Supreme Court under Article 32, and the matter reached a five-judge Constitution Bench. He argued that both Section 497 IPC and Section 198 CrPC were unconstitutional because:

• they treated the woman like property, as though her will depended on her husband's permission;
• the law punished only the man, not the woman, and the woman could not file a case against her husband;
• the law was gender-biased and violated Articles 14, 15 and 21;
• even within marriage, every individual has a right to sexual autonomy and privacy.

Issues

1. Were Section 497 IPC and Section 198 CrPC constitutional?
2. Should adultery be treated as a criminal offence at all?

On one side stood the argument of the sanctity of marriage; on the other, individual liberty and gender equality.

Arguments

Petitioner

1. Section 497 punished only the man, violating the equality principle in Article 14.
2. A woman could not bring a case against her husband's adultery, which was gender-based discrimination.
3. The law was paternalistic: it assumed that a woman could not enter into a relationship of her own free will at all.
4. It violated the right to privacy and sexual autonomy under Article 21, because choosing an intimate partner is a personal decision.
5. If adultery is a consensual act, both parties should be responsible; punishing only the man was unfair.

Union of India

1. Keeping adultery a crime was necessary because it protected the sanctity of marriage.
2. It was the duty of the State to punish any act against the morality of society that caused public harm.
3. The right to privacy is not absolute; reasonable restrictions can be placed on it in the public interest.
4. Section 497 was actually in favour of women, because it protected them from prosecution; it was a special provision for women under Article 15(3).

Court's analysis

Patriarchal stereotypes: woman as chattel

• Section 497 was based on patriarchal stereotypes. It assumed the woman was passive and could not exercise her own sexual autonomy without her husband's consent.
• The very structure of the law showed that, within marriage, a woman's sexuality was treated as being under her husband's control.
• Justice Chandrachud said that the law viewed the woman as her husband's chattel, that is, his private property. This was clearly unconstitutional.

Article 15(3) argument rejected

• Laws that keep women in a cage cannot be justified in the name of protective discrimination.
• The purpose of Article 15(3) is to empower women, not to control them. Protecting the woman from prosecution was not empowerment but a method of control.
• Section 198 CrPC was also biased, because only the husband, not the wife, could file a complaint.

Constitutional morality over social morality

The Court reaffirmed that criminal law must follow constitutional morality, not old social morality. Adultery is a private matter into which the State's criminal law should not enter. It can be a ground for divorce, but imposing criminal punishment for it violates privacy and dignity.

Judgment (held)

• The Supreme Court unanimously declared Section 497 IPC unconstitutional.
• Section 198 CrPC, insofar as it applied to adultery, was also held unconstitutional.
• There was no reasonable principle in Section 497 that made consensual sexual activity a crime.
• It was a denial of substantive equality, because it gave the woman a secondary status within marriage.

Article	Why Section 497 violated it
Article 14	Arbitrary and against the principle of equality
Article 15	Based on gender stereotypes
Article 21	Denied dignity, privacy and sexual autonomy

Earlier judgments

Principle / ratio

• Adultery is no longer a crime, but it remains a civil wrong and can still be a ground for divorce.
• Marriage is a partnership in which both partners are equal.
• Controlling anyone's sexual autonomy is not constitutional. Making adultery a crime was, in effect, giving the husband a licence to control the wife's body, which is not acceptable.
• Criminal law must conform to constitutional morality, not social morality.

Later developments

• In 2023, the Supreme Court clarified that the Joseph Shine decision does not apply to the service laws of the armed forces; disciplinary action can still be taken for adulterous conduct in the Army, Navy and Air Force.
• When the B.N.S. was enacted in 2023, a Parliamentary Standing Committee had suggested bringing adultery back as a gender-neutral offence, but the final B.N.S. did not make adultery a criminal offence again. So, like the IPC after this judgment, the B.N.S. contains no offence called adultery. This reflects respect for the Court's reasoning and for constitutional principles such as equality, dignity and privacy.

Significance

Joseph Shine ended an old and patriarchal law and opened a new chapter in gender equality.

Exam points

Case 20: M. Nagaraj v. Union of India (2006)

▶ Watch this part of the lecture (2:48:55)

This case is the next chapter in the story of Indra Sawhney and set the direction for the law on reservation in promotions.

Bench and date

• Delivered on 19 October 2006.
• Five-judge Constitution Bench led by Chief Justice Y. K. Sabharwal.
• Judgment written by Justice S. H. Kapadia.

Background

The government wanted to give SC and ST employees reservation in promotion as well. But in Indra Sawhney, the Supreme Court had held that Article 16(4) was limited to initial appointment only and did not extend to promotion. To remove this obstacle, and the effect of a few other judgments connected with promotion, Parliament brought four constitutional amendments one after another. The entire case turns on them.

Amendment	Year	Provision	What it did
77th	1995	Inserted Article 16(4A)	If, in the State's opinion, the representation of SC and ST in the services is inadequate, they can be given reservation in promotion as well.
81st	2000	Inserted Article 16(4B)	Unfilled reserved vacancies of a year (backlog vacancies) can be carried forward to subsequent years, and are treated separately while calculating that year's 50% ceiling.
82nd	2000	Added a proviso to Article 335	Allows relaxation in qualifying marks or lowering of evaluation standards for SC and ST candidates in matters of promotion.
85th	2001	Amended Article 16(4A)	Gives the State the power to grant consequential seniority to SC and ST candidates along with promotion.

The catch-up rule and consequential seniority

• The Supreme Court had accepted the catch-up rule in cases such as Virpal Singh Chauhan and Ajit Singh in the 1990s.
• The 85th Amendment gave the State the power to grant seniority along with reservation-based promotion (consequential seniority) precisely to remove the effect of the catch-up rule.

Facts and arguments

The amendments were challenged through writ petitions under Article 32. The petitioners argued that all these amendments violated the basic structure:

• The equality guaranteed by Article 14, and the equal opportunity and rule of law under Article 16(1), together form the core structure of the Constitution.
• Reservation in promotion, carrying forward the backlog and relaxation in qualifying marks were all excessive and broke the basic structure.

Issues

1. Was Article 16(4A), which allows reservation in promotion, valid?
2. Was Article 16(4B), which allows carrying forward the backlog, valid?
3. Was the relaxation clause under Article 335 valid?
4. Was the amendment on consequential seniority valid?
5. Most importantly, did these amendments break the basic structure of the Constitution?

Judgment (held)

All four amendments are valid, but with one big condition: they do not, by themselves, give the State an automatic licence to grant reservation in promotion. Nothing works without data.

Tests for basic structure: width test and identity test

Test	Question asked
Width test	Has the amendment widened Parliament's power so much that the Constitution's own limitations and requirements, such as the 50% ceiling, the creamy layer and compelling reasons, are wiped out altogether?
Identity test	Does the amendment change the basic identity of the Constitution?

The four amendments did not break the equality principle of Articles 14 and 16, because Article 16(4A) and Article 16(4B) are merely enabling provisions. They do not guarantee automatic reservation.

Court's view on each amendment

Amendment	Court's view
77th (reservation in promotion)	Allowed, but the State must show through data that the representation of SC and ST is inadequate.
85th (consequential seniority)	Valid, but again quantifiable data is required.
81st (backlog vacancies)	Carrying forward is allowed, and the vacancies can be kept separate while calculating that year's 50% ceiling, but this must not upset the overall balance.
82nd (relaxation under Article 335)	Relaxation in qualifying marks and evaluation standards can be given to SC and ST candidates, but the efficiency of administration must be kept in mind. Article 335 itself says that the claims of SC and ST will be considered only while maintaining the efficiency of administration.

Service-law concepts versus constitutional requirements

Merely concepts of service law	Constitutional requirements
Catch-up rule; consequential seniority	50% ceiling; creamy layer; compelling reasons
Not constitutional principles, so changing them does not affect the basic structure	Without them, the entire structure of equality of opportunity under Article 16 would collapse

Principle / ratio: the three compelling reasons

Reservation in promotion is possible only when the State proves three compelling reasons (the "golden formula"):

1. Backwardness of that class;
2. Inadequate representation of that class in the service;
3. That the overall efficiency of administration is maintained under Article 335.

Every State must prove these three points before reservation in promotion is treated as valid.

Formal equality	Proportional equality
Equality on paper	Equality in actual fact; expects the State to take affirmative steps in favour of disadvantaged sections

Significance

• A milestone showing that reservation and merit can operate together, provided there is proof through data.
• States had to collect quantifiable data every time they wanted to grant reservation in promotion.
• The judgment strengthened the basic structure doctrine by confirming that Parliament cannot make an amendment that breaks the core principle of equality.

Later developments

With the corrections made in Jarnail Singh, M. Nagaraj still remains the foundation of the policy on reservation in promotion for SC and ST. The case shows that balance is essential in the Constitution: there must be affirmative action, equality must survive, and the efficiency of the system must be maintained.

Exam points

Case 21: In re Berubari Union (1960)

▶ Watch this part of the lecture (2:58:14)

The question was whether India can give away its territory to another country merely by entering into an agreement with it. The Supreme Court explained that for giving away territory, an ordinary law of Parliament is not enough; the Constitution itself has to be amended.

Nature of the proceeding: Presidential reference

• The case did not arise from a dispute between two parties. It was referred to the Supreme Court by the President under Article 143 (a Presidential reference).
• Under Article 143(1), if the President feels that a question of law or fact is of public importance, the President may seek the Supreme Court's opinion on it. This opinion is called an advisory opinion.
• The opinion was given on 14 March 1960 by an eight-judge bench and was written by Justice P. B. Gajendragadkar.

Background and facts

• Berubari Union No. 12 was an area in the Jalpaiguri region of West Bengal, part of India since 1947 on the basis of the Radcliffe Award, which decided the border between India and Pakistan at the time of partition.
• Berubari remained in India's possession from the start and continued to be governed as part of West Bengal.
• In 1952, Pakistan claimed for the first time that Berubari had gone to India by mistake and should have been part of East Pakistan (present-day Bangladesh).
• During the same period, it became clear that there were several small enclaves around the border of the two countries.
• To resolve these complications, India and Pakistan reached the Nehru-Noon Agreement (1958). Its item 3 and item 10 decided that Berubari Union would be divided equally between the two countries, and that certain enclaves in Cooch Behar would be exchanged.
• Because this was a very major decision, the President asked the Supreme Court under Article 143(1) what the correct legal way was to implement the agreement.

Issues

1. Was the equal division of Berubari and the exchange of enclaves a cession of territory?
2. Could the Preamble limit the power of Parliament?
3. Could Parliament implement such an agreement simply by passing an ordinary law?
4. Was making a law under Article 3 sufficient, or was a constitutional amendment under Article 368 required?
5. Would Article 368 also apply to the exchange of enclaves?

Court's analysis

1. Was it a cession?

• The agreement clearly stated that Berubari Union would be divided equally, half to India and half to Pakistan.
• This was not merely a clarification of the boundary, that is, not simply an interpretation of the old border. It was clearly giving away part of India's territory to Pakistan: an alienation (transfer) of territory.
• The exchange of enclaves was also a cession.
• Conclusion: territory cannot be given away merely through an agreement or an executive action.

2. Does the Preamble restrain Parliament?

• Argument: the Preamble calls India a sovereign democratic republic, so no authority could give away part of the country.
• Held: the Preamble is very important and is the key to understanding the minds of the framers of the Constitution.
• But the Preamble is not part of the Constitution; it does not by itself confer any legal power, nor does it impose any restriction on power. It is only a guiding principle.
• So the Preamble could not limit the power of Parliament. The Court described the Preamble's role as a limited one.

3. Would Article 3 be sufficient?

• Article 3 gives Parliament the power to make a law increasing or decreasing the area of a State, altering its boundary, or changing its name.
• Held: this power is only for internal reorganisation within the country, such as changing the names of States or adjusting their boundaries.
• Giving territory to a foreign country is not permitted under Article 3. So Article 3 would not be sufficient.

4. Would Article 368 apply?

• Held: yes. Territory can be given away only through a constitutional amendment under Article 368.
• Parliament would have to amend Article 1 and the First Schedule, which define the territory of India, by a special majority.
• If Parliament wished, it could first amend Article 3 itself so that such matters could be handled under Article 3 in future. But until Article 3 is amended, Article 368 remains the valid route.

Article 3	Article 368
Ordinary law by Parliament to increase or decrease the area of a State, alter its boundary or change its name	Constitutional amendment by special majority
Only for internal reorganisation within the country	Required for cession of territory to a foreign country (amending Article 1 and the First Schedule)
Not sufficient for Berubari	The valid route, until Article 3 itself is amended

Final opinion (held)

• A constitutional amendment under Article 368 is necessary for the cession of territory.
• The India-Pakistan agreement could be implemented only after suitable amendments to Article 1 and the First Schedule, by a special majority.
• India cannot give away its territory merely through an agreement; it must follow the proper constitutional process.
• Following this opinion, Parliament passed the 9th Constitutional Amendment in 1960.

Principle / ratio: cession versus boundary settlement

Cession of territory (Berubari)	Boundary settlement or demarcation (Maganbhai Ishwarbhai Patel)
India's territory is genuinely given away to another country	An unclear border is merely settled or demarcated
Constitutional amendment under Article 368 required	No constitutional amendment needed

Significance

• The effect of Berubari was seen in 2015, when the Land Boundary Agreement between India and Bangladesh was implemented.
• A total of 162 enclaves were exchanged: India handed over 111 enclaves to Bangladesh and received 51 enclaves from Bangladesh.
• For this, Parliament passed the 100th Constitutional Amendment under Article 368, fully complying with the process laid down by the Supreme Court.
• Even today, if India needs to exchange territory with any foreign country, the Berubari opinion remains the legal guideline.
• India is a sovereign country, but sovereignty does not mean that anything can be done without rules: international agreements can be implemented only while respecting the Constitution.

Exam points

Case 22: Zee Telefilms Limited v. Union of India (2005)

▶ Watch this part of the lecture (3:06:52)

Zee Telefilms continues the Article 12 discussion taken up earlier in Pradeep Kumar Biswas. The question was whether the BCCI (Board of Control for Cricket in India) is a "State" under Article 12. Because cricket is treated almost like a religion in India, the impact of this case was very large.

• Date of decision: 2 February 2005
• Bench: five-judge Constitution Bench
• Result: 3:2 majority; BCCI is not a State under Article 12

Facts

• BCCI is a private body, registered as a society under the Tamil Nadu Societies Registration Act.
• Its work is to regulate cricket in India: team selection, organising tournaments and managing international matches.
• The dispute arose over telecast rights. BCCI floated a tender for the broadcasting rights of cricket matches for four years.
• Both Zee Telefilms and ESPN Star Sports placed bids. After negotiation, it was decided to award the contract to Zee Telefilms, which agreed to pay a very large amount and even deposited Rs. 92.5 crore.
• ESPN then filed a case in the Bombay High Court.
• After that, BCCI cancelled the entire process, terminated Zee's contract and returned the deposit.
• Zee Telefilms considered this decision arbitrary and unfair, and went straight to the Supreme Court under Article 32.
• Its main argument was that BCCI's decisions violated its fundamental rights under Article 14 and Article 19(1)(g), and that because BCCI functions like a State, it should be subject to constitutional scrutiny.

Issues

1. Was BCCI a "State" within Article 12?
2. Was cancelling Zee's contract arbitrary, and a violation of Article 14?
3. Was a writ petition directly maintainable against BCCI under Article 32?

Arguments

For Zee Telefilms (petitioner)

• BCCI should be treated as a State because it has complete control over cricket, that is, it holds a monopoly position. Everything from domestic tournaments such as the Ranji Trophy to the selection of the national team is in its hands alone.
• BCCI receives support and recognition from the government, for example nominal rent on stadiums, and its selected team represents India as the national team.
• Organising cricket matches and selecting the national team is a public function.
• Since BCCI performs a public duty, its actions should fall within the scope of fundamental rights.
• Support was drawn from earlier precedents (below).

Stand of the Union of India

The Union of India filed an affidavit in this case saying that BCCI was a State.

For BCCI and ESPN (respondents)

• BCCI is a private body. It was not created by any statute, nor did it receive funding from the government.
• Its monopoly was not granted by the government; it was, in a sense, self-created because of a first-mover advantage, that is, the benefit of being the first to enter the field.
• If BCCI were held to be a State, all sports federations, such as those for hockey, football and kabaddi, would also have to be treated as a State. That would be a dangerous precedent.
• Under the test of financial, functional and administrative control laid down in Pradeep Kumar Biswas (2002), BCCI would fail.
• So BCCI was not a State, and the Supreme Court's jurisdiction under Article 32 did not arise.

Judgment (held)

• By a majority of 3:2, the Court held that BCCI is not a State under Article 12.
• The majority opinion was written by Justice N. Santosh Hegde, joined by Justice B.P. Singh and Justice H.K. Sema.
• Consequence: a writ cannot be filed directly against BCCI in the Supreme Court under Article 32.
• However, the Court accepted that BCCI performs public functions. For this reason, High Courts can issue a writ against BCCI under their power in Article 226.

Reasoning of the majority

• The Court based its reasoning on the test laid down in Pradeep Kumar Biswas.
• BCCI was not created by any statute; its share capital is not held by the government; the government does not bear its expenditure; and the government has no financial, functional or administrative control over it.
• Some support from the government, or de facto recognition (recognition in practice), does not make a body a State.
• Popularity or public opinion cannot decide whether a body is a State. Merely because cricket is like a religion in India, BCCI does not automatically become a State.
• If BCCI were held to be a State, all other private federations would also have to be treated the same way. This would open the floodgates to unlimited litigation under Article 32, which would not be practical.

Why a remedy survived under Article 226 but not under Article 32

Point	Article 32	Article 226
Purpose	Only for the enforcement of fundamental rights	Broader: for fundamental rights and for any other purpose as well
Against whom	Fundamental rights are generally enforceable against the State	A High Court can issue a writ against any person or authority
Position of BCCI	Not maintainable, since BCCI is not a State	Open, since BCCI is a private body performing a public duty

Minority view (dissent)

Justice S.B. Sinha, along with Justice S.N. Variava, dissented. In their view, given the way BCCI holds complete control over cricket, selects the national team and enjoys the government's recognition, its functions are State-like. So it should be treated as a State under Article 12.

Majority (3 judges)	Minority (2 judges)
Justice N. Santosh Hegde (author), Justice B.P. Singh, Justice H.K. Sema	Justice S.B. Sinha, Justice S.N. Variava
BCCI is not a State; no financial, functional or administrative control by the government	BCCI's functions are State-like (complete control over cricket, selection of national team, government recognition); it should be a State

Principle / ratio

• Whether a body is a State under Article 12 depends on the Pradeep Kumar Biswas test of financial, functional and administrative control by the government. Some government support, de facto recognition or popularity does not make a body a State.
• A writ under Article 32 is not maintainable against a body that is not a State. A private body performing public functions can still be reached through a writ under Article 226.

Significance

• The judgment became a landmark precedent. It made clear that a writ is maintainable in the High Court under Article 226 against private bodies performing public functions, but not in the Supreme Court under Article 32.
• It defined the scope of constitutional remedies, showing that private organisations too can indirectly fall within the reach of constitutional accountability.
• BCCI received a warning that it must remain fair and transparent while performing public duties, or else the High Court could step in.

Exam points

Case 23: Danial Latifi v. Union of India (2001)

▶ Watch this part of the lecture (3:14:47)

Danial Latifi is the next chapter in the story of Shah Bano. It concerns the maintenance rights of Muslim women and the conflict between secular law and personal law, and it directly touches Articles 14, 15 and 21.

• Date of decision: 28 September 2001
• Bench: five-judge Constitution Bench
• Result: the Muslim Women (Protection of Rights on Divorce) Act, 1986 upheld, by interpreting it in favour of Muslim women

Background: the Shah Bano story

1. 1975: Shah Bano of Indore, a mother of five children, was thrown out of her home by her husband.
2. April 1978: she claimed maintenance under Section 125 of the Criminal Procedure Code (CrPC), which today corresponds to Section 144 of the B.N.S.S.
3. November 1978: her husband divorced her.
4. 1985: the Supreme Court clearly held that a divorced Muslim woman could also claim maintenance under this section.
5. This was followed by heavy political opposition.
6. 1986: Parliament passed a new law, the Muslim Women (Protection of Rights on Divorce) Act, 1986. The Act was generally understood to mean that a divorced Muslim woman would get maintenance only for the iddat period, that is, roughly three months, and that the route to future maintenance was closed off.

Facts: the petition

Danial Latifi, the senior advocate who had represented Shah Bano before the Supreme Court, filed a petition in the Supreme Court arguing that the 1986 Act was unconstitutional. His case was that it:

• discriminated against Muslim women;
• denied them rights equal to those under Section 125; and
• violated Articles 14, 15 and 21.

Issues

1. To what extent would a divorced Muslim woman get maintenance, and how did that relate to the secular protection under Section 125?
2. Was the Muslim Women (Protection of Rights on Divorce) Act, 1986 unconstitutional, that is, did it go against Articles 14, 15 and 21?

Arguments

For Danial Latifi (petitioner)

• Section 125 is secular. It is not the law of any religion but a law of social justice, which applies to all wives.
• Its purpose is to prevent poverty and homelessness, that is, to stop a woman from being left on the street after divorce.
• It is directly connected to the right to life under Article 21, because a means of livelihood is necessary to live with dignity.
• Excluding Muslim women from Section 125 would amount to discrimination: other women would get maintenance while Muslim women would be left deprived.
• The Act almost nullifies the Shah Bano judgment and goes against human values and justice for women.
• The Act was both un-Islamic and unconstitutional, and weakened the secular character of India.

For the Union government (respondent)

• The Act clearly states that the husband must make a reasonable and fair provision during the iddat period. His responsibility is not lifelong, only up to the iddat period.
• This is a matter of personal law. A separate law made by Parliament for the Muslim community does not amount to a violation of Article 14 or of any fundamental right.
• Parliament has the power to amend Section 125.
• Parliament enacted the new Act precisely to overcome the ratio of the Shah Bano judgment.
• Having a different law for a different community does not, by itself, make the Act unconstitutional.
• The Act also protects Muslim women, because it provides for maintenance to be claimed from relatives and from the Waqf Board as well.

Reasoning of the Court

Nature of Section 125 restated

• Section 125 is a secular provision and has nothing to do with religion.
• It is a law of social justice, meant to ensure that no woman is left in extreme poverty and destitution (being left completely without support).
• If the 1986 Act were read to give Muslim women less protection than Section 125 provides, it would go against Articles 14, 15 and 21.

Section 3(1)(a): "provision" and "maintenance" read separately

Section 3(1)(a) of the Act says that a reasonable and fair provision and maintenance must be made by the former husband within the iddat period. This interpretation is the heart of the case.

• The Court read the two words, provision and maintenance, separately.
• The husband's liability is not merely to pay maintenance up to the iddat period. He must also make a reasonable and fair provision for his divorced wife's future.
• This arrangement has to be made within the iddat period, but its benefit continues to reach the wife even after the iddat period, until she remarries.

Point	General understanding of the 1986 Act	Interpretation in Danial Latifi
Husband's liability	Maintenance only for the iddat period (roughly three months)	Maintenance for the iddat period plus a reasonable and fair provision for the wife's future
Meaning of "within the iddat period"	The liability lasts only during iddat	The provision must be made during iddat; its benefit continues after iddat until she remarries
Future maintenance	Route closed off	Secured through the provision, and through relatives and the Waqf Board under Section 4

Section 4: relatives and the State Waqf Board

• If the wife is unable to maintain herself after the iddat period and has not remarried, then under Section 4 of the Act, those of her relatives who would inherit her property become liable to pay maintenance.
• If there are no such relatives, or they cannot pay, the State Waqf Board becomes liable to pay maintenance.
• So, the Court held, no Muslim woman would be left in extreme poverty.

Judgment (held)

• A Muslim husband must make a reasonable and fair provision for his divorced wife's future. His responsibility is not limited to the iddat period alone; its effect continues beyond it.
• If a divorced Muslim woman is unable to maintain herself, she can claim maintenance from her relatives or the Waqf Board.
• The 1986 Act is constitutional and does not violate Articles 14, 15 and 21, because the Court interpreted it in a way that keeps the rights of Muslim women safe.

Principle / ratio

• When a law is capable of two meanings, the court adopts the one that keeps it constitutional. Read this way, the 1986 Act gives Muslim women no less protection than Section 125.
• Under Section 3(1)(a), "provision" and "maintenance" are separate: the provision for the wife's future must be made within the iddat period, but its benefit lasts beyond it, until she remarries.

Significance

• The judgment was carefully crafted: the Act made by Parliament was not struck down, and yet the basic purpose of Shah Bano was preserved.
• Many experts say that after this interpretation, in some cases, Muslim women could even get better relief than under Section 125, because Section 3 also allows for a lump sum, that is, a one-time payment.
• The case struck an important balance between Muslim personal law on one side and the principles of the Indian Constitution on the other.

Later developments

The debate that began with Shah Bano, passing through Danial Latifi, reached a clear resting point in 2024.

Exam points

Case 24: P.V. Narasimha Rao v. State (1998)

▶ Watch this part of the lecture (3:23:14)

This case moves from personal law to the inside of Parliament. In P.V. Narasimha Rao v. State, the State was represented by the CBI. The case is also known as the JMM bribery case. Its story has two parts: what the Supreme Court said in 1998, and how the Supreme Court overturned that decision in 2024 in Sita Soren v. Union of India.

Facts

• Elections to the tenth Lok Sabha were held in 1991. Congress emerged as the biggest party, but its government was in a minority, meaning it did not have a majority on its own. P.V. Narasimha Rao became Prime Minister.
• In July 1993, the opposition brought a no-confidence motion against his government. To survive, the government needed the support of about fourteen more MPs.
• When the vote was taken, the no-confidence motion fell and the government survived. Some MPs, especially members of the Jharkhand Mukti Morcha (JMM) and MPs from a group within the Janata Dal, voted in favour of the government.
• It was later alleged that these MPs had been bribed to vote in the government's favour. A complaint of criminal conspiracy was filed and the CBI investigated it.
• The allegation was that Narasimha Rao himself, along with a few other leaders, was involved in the entire bribery conspiracy, and that lakhs of rupees were paid to MPs to manipulate their votes.
• The special judge took cognizance, and the matter eventually reached the Supreme Court.

Issues

In November 1997, the matter was referred to a five-judge Constitution Bench. Two major questions arose:

1. Does Article 105(2) grant MPs such immunity that no criminal case can proceed against them for a vote given in the House, even if that vote was given after taking a bribe?
2. Is an MP a public servant under the Prevention of Corruption Act, 1988?

Judgment of 1998 (held)

Bench and majority

• Date of decision: 17 April 1998
• Result: 3:2 majority
• The majority opinion was written by Justice S.P. Bharucha, on his own behalf and on behalf of Justice S. Rajendra Babu. Justice G.N. Ray agreed with this result.
• Justice S.C. Agrawal and Justice A.S. Anand dissented.

First question: immunity under Article 105(2)

• The Court held that MPs and MLAs have immunity for a speech or a vote given in the House, even if that vote was given after taking a bribe.
• The majority's logic was that this immunity is broad, and that the allegation of bribery was directly connected to that very vote.

Person	Position under the 1998 majority
MP who took a bribe and voted as promised in exchange for it	Immunity from criminal proceedings
Those who gave the bribes	No immunity at all
MP who took a bribe but did not actually vote (such as Ajit Singh, who stayed away from the voting)	No protection, because no vote was cast at all

Majority and minority: the meaning of "in respect of"

The real difference between the majority and the minority in 1998 came down to the interpretation of the words "in respect of" in Article 105(2) ("no proceedings shall lie in respect of a vote").

Majority (3 judges)	Minority (2 judges)
Read "in respect of" very broadly	The offence of taking a bribe was complete even before the vote was cast
The bribery conspiracy was directly connected to the vote, so immunity extended to it as well	Bribery was not "in respect of" the vote but a separate offence altogether

Second question: MP as a public servant

• An MP is a public servant under the Prevention of Corruption Act.
• But because there is no authority competent to remove an MP, the sanction requirement under that Act did not apply to the prosecution.
• Permission should be taken from the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha before filing a charge sheet.

Criticism of the 1998 decision

The 1998 decision was considered highly controversial. Critics said that it, in effect, gave a free pass to those who took bribes to vote inside the House. The question raised was whether this made democracy stronger or weaker.

The review: Sita Soren v. Union of India (2024)

Facts

• In 2012, an election to the Rajya Sabha was held in Jharkhand.
• It was alleged that Sita Soren, an MLA of the JMM, took a bribe from an independent candidate.
• She did not cast her vote for that candidate at all, but for her own party's candidate. In other words, according to the allegation, she took the money but voted the way her party wanted.
• When a case was registered against her, she argued that she was protected under Article 194(2), because the Supreme Court had granted MPs and MLAs immunity in the 1998 Narasimha Rao case.

Path of the reference

1. The Jharkhand High Court dismissed her plea and held that the prosecution should proceed. She appealed to the Supreme Court.
2. 23 September 2014: a two-judge bench held that this was a substantial issue of great importance to the general public, so it should be heard by a bench of three judges.
3. 2019: the three-judge bench held that this was a very significant issue with implications reaching very far, so it should be heard by an even larger bench.
4. 2023: a five-judge bench held that there was serious doubt about whether the 1998 Narasimha Rao judgment was correct, and referred the matter to a seven-judge Constitution Bench.

Why a review was necessary: the paradox

The 1998 judgment created a paradoxical situation (a paradox is a result so contrary that it seems to go against logic):

Conduct of the legislator	Result under the 1998 judgment
Took a bribe and voted as promised	Immunity
Took a bribe and then voted according to their own free will	Could be prosecuted

In other words, the one who genuinely honoured the bribery deal was protected, and the one who later voted of their own free will was punished. This was completely back-to-front logic.

Judgment of 2024 (held)

• Date of decision: 4 March 2024
• Bench: seven judges, led by Chief Justice D.Y. Chandrachud
• Result: unanimous (complete agreement); the 1998 Narasimha Rao judgment was overruled.
• Bribery and corruption get no protection under Article 105(2) and Article 194(2).
• If an MP or an MLA takes a bribe for a vote or a speech, they must face criminal prosecution.

Key points of the Court's reasoning

1. Purpose of parliamentary privilege: the purpose of Articles 105 and 194 is to let MPs and MLAs debate and discuss freely without any fear, not to let them take bribes. If they vote or speak under the influence of a bribe, the very foundation of democracy is shaken.
2. The scope of immunity is limited: a privilege is available only when it is (a) connected to the collective functioning of the House, and (b) necessary for performing the essential functions of a legislator. Taking a bribe passes neither of these tests. "Anything said, or any vote given" means only genuine legislative action, not bribery.
3. Bribery is a complete crime in itself: the offence of bribery is complete the very moment the illegal gratification (the unlawful benefit) is accepted. Whether the vote is later cast as promised or not, the crime has already occurred. So the offence of taking a bribe does not depend at all on the vote actually cast inside the House.
4. The paradox removed: the paradox created by the 1998 decision has now been removed.

Origin and purpose of parliamentary privilege

• The idea of parliamentary privilege developed in the British House of Commons, where the protection came about to shield Parliament from the pressure of the king.
• In 2024, the Court held that India's privileges did not come from any such old struggle; they were granted first by statute and then by the Constitution.
• The purpose of privilege is to protect free debate within the House, not to place a legislator above the law.
• The Court examined the law of other democracies and found that privilege is not treated as a shield for corruption there either.
• Public trust rests on the honesty of the legislator. If votes inside the House start being sold in the market, the very meaning of representative democracy is lost.

Principle / ratio

• 1998 (now overruled): "in respect of" in Article 105(2) was read broadly, so a bribe connected to a vote cast in the House was covered by immunity.
• 2024 (present position): privilege under Articles 105(2) and 194(2) covers only genuine legislative action. Bribery is complete when the illegal gratification is accepted, so it is not protected, whatever happens to the vote.

1998 and 2024 compared

Point	P.V. Narasimha Rao (1998)	Sita Soren (2024)
Date	17 April 1998	4 March 2024
Bench	Five judges	Seven judges, led by Chief Justice D.Y. Chandrachud
Majority	3:2	Unanimous
Bribe-taker who votes as promised	Immune	Not immune; must face criminal prosecution
Link between bribe and vote	"In respect of" read broadly; bribery connected to the vote	Bribery complete on acceptance; independent of the vote

Significance

• The impact of the 2024 decision is historic: lawmakers can no longer misuse their immunity.
• It is now clear that corruption and bribery are poison for public life, and no privilege will protect them.
• This makes Indian parliamentary democracy stronger and increases accountability.
• The controversial protection granted in 1998 has come to an end.

Exam points

Case 25: Sajjan Singh v. State of Rajasthan (1965)

▶ Watch this part of the lecture (3:33:31)

Sajjan Singh is a very important link in the story of Parliament's amending power, along with Golaknath and Waman Rao. The first seed of the basic structure doctrine appears in this case. It shows the tension between fundamental rights and constitutional amendment more clearly than any other case.

• Date of decision: 30 October 1964
• Reported: 1965, which is why the case is also called Sajjan Singh, 1965
• Bench: five judges
• Result: the Constitution (Seventeenth Amendment) Act, 1964 held valid

Facts

• Parliament passed the Constitution (Seventeenth Amendment) Act, 1964.
• This amendment changed Article 31A and broadened the definition of the word "estate", so that more types of agricultural land would fall within the scope of land reform laws.
• At the same time, 44 Acts relating to land reforms were placed in the Ninth Schedule, so that they could be protected from judicial review.
• The whole purpose of the Ninth Schedule was to shield laws made for land reform and socio-economic justice from being challenged in court on the basis of fundamental rights. The Schedule had been created by the First Amendment in 1951, and more laws were now being added to it.
• The people directly affected by these laws, big zamindars in particular, filed writ petitions in the Supreme Court under Article 32, arguing that the amendment violated their fundamental rights.

Issues

1. When Parliament amends Part III (the fundamental rights), is it necessary to follow the strict procedure in the proviso to Article 368? This proviso says that if an amendment affects certain provisions, such as the power of the High Courts under Article 226, ratification by at least half the State legislatures becomes necessary.
2. Does Article 13(2), which says that the State shall not make any law that takes away or abridges fundamental rights, also apply to a constitutional amendment?
3. Does Parliament have the power to amend fundamental rights at all?

Arguments of the petitioners

1. Violation of Article 226: the Seventeenth Amendment indirectly affected the writ power of the High Courts. Once a law went into the Ninth Schedule, even the High Court could no longer examine it on the ground of fundamental rights. So the proviso to Article 368, that is, ratification by the States, ought to have applied.
2. Reconsider Shankari Prasad: in Shankari Prasad v. Union of India (1951), the First Amendment had also been challenged, but the Court had upheld it as valid. The petitioners demanded that this decision be revisited.
3. Wrong procedure: the correct procedure for amendment had not been followed, because the approval of the States had not been taken, so the amendment was not valid at all.
4. Land is a State subject: land falls under Entry 18 of the State List, so Parliament could not directly make such an amendment touching land laws.
5. No power to curtail fundamental rights (the biggest argument): Article 368 gives Parliament the power to amend the Constitution, but it does not permit Parliament to abolish or curtail fundamental rights.

Judgment: reasoning of the majority

The majority opinion was written by Chief Justice P.B. Gajendragadkar, with Justice K.N. Wanchoo and Justice Raghubar Dayal agreeing with him.

1. Impact on Article 226 only incidental: there was some impact on Article 226, but it was minor, indirect and incidental, that is, nothing more than a side effect. Had the impact been major and direct, the approval of the States would have been necessary. Since that was not the case, the proviso did not apply.
2. Shankari Prasad remains good law: it would not be right to casually reopen a settled past decision, because doing so would put all the earlier amendments in jeopardy, along with the land reforms built on the strength of them.
3. Full power to amend under Article 368: Parliament has the full power to amend the Constitution under Article 368. This Article gives Parliament the power to amend any part of the Constitution, and that includes Part III, the fundamental rights.
4. Parliament only validated the land laws: Parliament had not enacted any new land law; it had simply given protection to existing State laws by placing them in the Ninth Schedule. So the argument based on the State List did not hold.
5. An amendment is not "law": a constitutional amendment cannot be treated as "law" within the meaning of Article 13(2). Article 13 applies only to ordinary laws, not to amendments.

• The Court described the Constitution as an organic document: a living document that keeps growing and guides the nation towards solutions for changing problems. So fundamental rights too could be amended to deal with changing social and economic needs.
• Had the framers of the Constitution wanted fundamental rights to be unamendable, they would have said so clearly in Article 368.

Separate opinions: the seed of the basic structure

Technically, all five judges held the Seventeenth Amendment to be valid. But two of them, Justice M. Hidayatullah and Justice J.R. Mudholkar, expressed serious doubts in their own separate opinions. These are often read as something close to a minority view or a dissent, and this is exactly where the idea of the basic structure begins to appear.

Justice M. Hidayatullah

• He said that he would need stronger reasons than those given in Shankari Prasad before he could accept that fundamental rights are not really fundamental, and that they can be changed as easily as the rest of the Constitution.
• In effect, he asked: if these rights can become a plaything in the hands of a special majority, what is the point of calling them fundamental at all?

Justice J.R. Mudholkar

• He went further and raised a deeper question: does Parliament have the power to amend any part of the Constitution without any limit at all?
• He asked whether changing the basic features of the Constitution could still be called mere amendment, or whether it would actually amount to rewriting the Constitution.
• He described the Preamble as the epitome (the essence) of the Constitution's basic features, and asked whether the Constituent Assembly had intended these basic features to remain permanent.
• In this context, he also referred to a decision of the Supreme Court of Pakistan which had touched upon the idea of fundamental features.
• He gave no final opinion of his own and simply left these questions open.

This observation was not part of the actual judgment in the case. But Justice Mudholkar was the first to introduce, indirectly, the idea of basic features, an idea that the Supreme Court later accepted in full form as the basic structure doctrine in Kesavananda Bharati in 1973.

Majority (Gajendragadkar CJ, Wanchoo J, Raghubar Dayal J)	Separate opinions (Hidayatullah J, Mudholkar J)
Article 368 permits amendment of any part, including Part III	Doubted whether fundamental rights can be changed as easily as the rest of the Constitution
Shankari Prasad remains good law	Hidayatullah J: stronger reasons than those in Shankari Prasad needed
The Constitution is an organic document; had the framers wanted fundamental rights to be unamendable, they would have said so in Article 368	Mudholkar J: asked whether changing basic features is amendment or rewriting; Preamble as the epitome of basic features; questions left open
Amendment held valid	Also held the amendment valid

Held (final result)

• Parliament has the power to amend any part of the Constitution, including Part III.
• Article 13(2) applies only to ordinary laws, not to constitutional amendments.
• The proviso to Article 368 applies only when an amendment has a direct and significant impact on the power of the High Courts.
• The impact of the Seventeenth Amendment was minor, so ratification by the States was not necessary.
• The Constitution (Seventeenth Amendment) Act is valid.

Principle / ratio

• A constitutional amendment made under Article 368 is not "law" within Article 13(2). So Parliament can amend any part of the Constitution, including the fundamental rights in Part III.
• State ratification under the proviso to Article 368 is needed only when an amendment has a direct and significant impact on the power of the High Courts. An incidental impact does not call for it.

Significance: Sajjan Singh in the chain of amendment cases

Case	Year	Position on amending fundamental rights
Shankari Prasad	1951	An amendment is not "law"
Sajjan Singh	1964	Repeated the same position, but with the doubts of Hidayatullah J and Mudholkar J attached
Golaknath	1967	Overruled Sajjan Singh; an amendment is indeed "law"
Kesavananda Bharati	1973	Overruled Golaknath and found a middle path: the power to amend exists, but subject to the limit of the basic structure

Rajasthan State Electricity Board v. Mohan Lal (1967)

▶ Watch this part of the lecture (3:42:44)

Case 26. Sajjan Singh planted the seed of the basic structure. Rajasthan State Electricity Board v. Mohan Lal is the very first link in the Article 12 chain, the same chain later seen at work in Pradeep Kumar Biswas and Zee Telefilms. It was the case that, for the first time, gave a very broad scope to Article 12. In other words, it clarified the definition of "State".

Bench and date

• Decided on 3 April 1967 by a five-judge Constitution Bench.
• The majority opinion was written by Justice V. Bhargava.
• Justice J.C. Shah wrote a separate concurring opinion, reaching the same result on a narrower test.

Parties and background

• Appellant: Rajasthan State Electricity Board.
• Respondents: Mohan Lal and some other employees.
• The matter reached the Supreme Court by way of an appeal against a judgment of the High Court.

The background question was whether the Rajasthan State Electricity Board fell within this definition of State. If it did, two consequences followed: fundamental rights would apply against it, and the High Court could issue a writ against it.

Facts

1. Mohan Lal and eleven other employees were originally permanent employees of the State government.
2. In 1958, a notification placed them at the disposal of the Electricity Board, meaning their services were kept with the Board on a temporary basis.
3. The Board was later supposed to frame new grades and service rules for these employees, but this was not done in time.
4. Meanwhile, the Board promoted the remaining eleven employees to the post of Assistant Engineer.
5. At that time, Mohan Lal was on deputation with the government's Public Works Department.
6. When he returned to the Board, he was not given the promotion, even though everyone else in his batch had already been promoted.

Proceedings in the High Court

• Mohan Lal filed a writ petition in the High Court under Article 226, arguing that he had been discriminated against.
• He claimed a violation of Article 14 (equality before law) and Article 16 (equality of opportunity in public employment).
• The High Court held that Mohan Lal deserved the same treatment as the other eleven employees.
• It quashed the promotions of those eleven employees and directed the Board to reconsider all the promotions afresh, this time including the claim of Mohan Lal.
• The Board appealed to the Supreme Court, arguing that it did not fall within the definition of State at all, so the High Court had no power to give it such a direction.

Issues

1. Could the Rajasthan State Electricity Board be treated as "State" under Article 12?
2. Had the Board violated Articles 14 and 16 in the matter of promotion?
3. Could Mohan Lal be regarded as an employee of the Board?

The whole case revolved around these three points, but the real key lay in the first question.

Arguments

Appellant (the Board)

• Mohan Lal had never been its permanent employee, only a provisional one, so he could not claim promotion.
• The Board was an independent legal entity, not a direct part of the government, but a commercial body engaged in the supply of electricity.
• For this very reason, the Board did not fall within the definition of State under Article 12; and if it was not State, the High Court could not issue a writ against it.
• It existed for a commercial purpose and was not a direct instrument of government, so it could not be regarded as State.
• The Board relied on earlier cases, including a case relating to Punjab University, cited to argue that every statutory body could not be treated as State.

Respondents (Mohan Lal)

• The term "other authorities" in Article 12 is very broad.
• Any statutory authority, created under law and exercising authority over people, could be treated as State.
• The Board was a public administrative agency possessing quasi-governmental powers.
• It did not merely carry on commercial business; it also exercised authority of a governmental character.
• So the Board was a statutory authority, it performed public functions, it exercised governmental power, and it was State under Article 12. Once it was State, fundamental rights applied against it.

Judgment (held)

• The Rajasthan State Electricity Board was a statutory authority, created under the Electricity Supply Act, 1948.
• Most important point: the term "other authorities" in Article 12 must be given a broad interpretation.
• The rule of ejusdem generis would not apply. The bodies listed in Article 12, namely Government, Parliament, Legislature and local authorities, did not share any single common category, so "other authorities" could not be read as limited to bodies of that same kind.

The majority's test

• Every authority created by the Constitution or by a statute, and vested with powers under law, falls within the term "other authorities".
• The Board had the power to issue directions, and anyone who failed to follow those directions could even face criminal liability. The Board therefore possessed coercive power.
• Commercial activity did not take the Board outside Article 12, because the Constitution itself recognises that the State can engage in trade and business.
• The Board was therefore not merely a commercial body; it was an authority performing public functions.

Majority test and Justice Shah's concurring test

Point	Majority (Justice V. Bhargava)	Concurring opinion (Justice J.C. Shah)
Result	The Board is State under Article 12	Same result
Test for "other authorities"	Every authority created by the Constitution or a statute and vested with powers under law	Only authorities possessing the sovereign power of the State, meaning the power to make rules and regulations and enforce them
Width	Broader	Narrower

On the merits

• The High Court had made no mistake in deciding in favour of Mohan Lal.
• Mohan Lal, like the other eleven employees, was indeed in the service of the Board.
• The Board had not given him equal opportunity for promotion.
• The Board's appeal was dismissed with costs.

Principle / ratio

Any statutory authority, created under law and exercising public power (such as the power to issue binding directions whose breach can attract criminal liability), is "State" under Article 12. Carrying on commercial activity is no bar. If such a body violates fundamental rights, writs can be issued against it.

Significance

• The biggest contribution of this judgment was a wide interpretation of the definition of State under Article 12.
• Any statutory authority created under law and exercising public power would be treated as State, so writs could be issued against such bodies if they violated fundamental rights.
• This is where the journey of Article 12 truly begins.

The Article 12 journey

Stage	Case	Contribution
1	Rajasthan State Electricity Board v. Mohan Lal (1967)	Statutory authority vested with powers under law is State; broad reading of "other authorities"
2	Sukhdev Singh	Statutory corporations such as ONGC and LIC
3	R.D. Shetty and Ajay Hasia	Test of instrumentality and agency
4	Pradeep Kumar Biswas	Test of deep and pervasive control

Exam points

National Legal Services Authority v. Union of India (2014)

▶ Watch this part of the lecture (3:51:09)

Case 27. Moving from the technical debate over Article 12, this decision gave a new direction to a right connected with human identity itself. Commonly known as the NALSA judgment, it changed the entire direction of transgender rights in India. It gave legal recognition to the third gender and laid down clear guidelines to protect transgender persons' rights.

Bench and date

• Delivered on 15 April 2014.
• Bench of Justice K.S. Radhakrishnan and Justice A.K. Sikri.
• Both judges wrote their own separate opinions.

Background

• Earlier, the concept of gender in India was limited only to male and female.
• The transgender community received no proper recognition in law.
• Because this identity went unrecognised, transgender people were deprived of basic rights such as education, employment, health care and entry into public spaces.
• This discrimination went against their fundamental rights under Articles 14, 15, 16, 19 and 21.
• History recalled by the Court: the hijra community has had a presence in Indian culture for centuries, but British-era laws such as the Criminal Tribes Act, 1871 treated them as criminals. That stigma did not disappear completely even after independence.

Facts

• In 2012, the National Legal Services Authority (NALSA) filed a writ petition in the Supreme Court on behalf of the transgender community.
• NALSA is the statutory body that provides free legal aid to the poor and weaker sections under the Legal Services Authorities Act, 1987.
• The argument was that transgender people were facing harassment and discrimination because their gender identity was not recognised.
• They did not fit into either the male or the female category, and they were not given official status as a third gender either.
• As a result, they faced a violation of their constitutional rights to equality, non-discrimination, freedom of expression, and life with dignity.

Issue

Whether failing to give legal recognition to the gender identity of a transgender person amounts to a violation of their fundamental rights under Articles 14, 15, 16, 19 and 21.

Arguments

Petitioner (NALSA)

• Every transgender person has the right to decide their own gender, that is, to determine their own gender identity for themselves (self-determination).
• If a person is fitted into neither the male nor the female category, and is also not given the status of a third gender, this directly affects their education, health care, employment, and entry into public spaces.
• This is a clear violation of:
  • equality before law under Article 14;
  • non-discrimination and equal opportunity under Articles 15 and 16; and
  • the right to life with dignity under Article 21.

Respondent (Union government)

• This was a sensitive human rights issue.
• The Ministry of Social Justice and Empowerment was working on it.
• An expert committee had been set up to study the issues facing transgender persons.
• The suggestions of the petitioner would also be included in the consultation process.

Legal reasoning of the Court

The Court's reasoning is the soul of this judgment.

Three foundational propositions

1. Gender identity is a fundamental aspect of life. It is a person's own deep, inner experience, and forms part of their dignity, self-determination and freedom.
2. Psychological gender matters more than biological sex. The gender a person feels themselves to be matters more than mere body structure.
3. Surgery or any medical procedure is not necessary for legal recognition. Telling someone that their identity will be accepted only after an operation is, in itself, an affront to their dignity.

Article-wise application

Article	How the Court applied it
Article 14	Discriminating against a transgender person on the basis of identity violates equality, because Article 14 protects every "person", and the word "person" is gender-neutral.
Articles 15 and 16	The word "sex" does not mean only biological male or female; it also includes discrimination on the basis of gender identity.
Article 19(1)(a)	Expressing one's identity through clothes, speech and behaviour is part of the freedom of expression.
Article 21	Life with dignity, privacy and personal autonomy are all directly connected to gender identity.

International references

• Yogyakarta Principles: set out the human rights relating to gender identity and sexual orientation.
• Article 12 of the Universal Declaration of Human Rights and Article 17 of the International Covenant on Civil and Political Rights: both deal with the right to privacy.

Judgment (held)

• The Supreme Court gave legal recognition to transgender persons as a third gender.
• Gender identity is to be accepted on the basis of self-identification; no medical test or surgery is compulsory.
• Recognising gender identity is part of a person's dignity, equality, autonomy and privacy, all protected under Articles 14, 15, 16, 19 and 21.

Directions to the Centre and the States

1. Right to self-identification: a transgender person may decide their own gender, whether male, female or third gender.
2. Official recognition of the third gender: an option for third gender should be added in government documents, ID cards and forms.
3. Benefit of reservation: transgender persons should be treated as socially and educationally backward classes and given reservation in education and public appointments.
4. Health care: separate HIV sero-surveillance centres, and arrangements for special medical care and mental health support.
5. Public awareness campaigns should be run to reduce the stigma attached to them in society.
6. Separate social welfare schemes should be framed for their betterment.
7. Expert committee recommendations: the recommendations of the expert committee of the Ministry of Social Justice should be examined in light of the legal declaration made in this judgment, and implemented within six months.

Clarification of 2016: gender identity and sexual orientation

In 2016, the Supreme Court made it clear that the third gender recognition given in NALSA was meant for transgender persons, not for gay, lesbian or bisexual people, because gender identity and sexual orientation are different things. The question of sexual orientation arose later in Navtej Singh Johar.

Gender identity	Sexual orientation
Who a person considers themselves to be	Who a person is attracted to
Subject of the third gender recognition in NALSA	Not covered by the NALSA third gender recognition; taken up in Navtej Singh Johar

Significance and impact

• Legal milestone: for the first time, the Supreme Court gave transgender persons an independent legal identity.
• Discussion and awareness around transgender issues grew in society.
• The decision showed that the spirit of the Indian Constitution protects every marginalised community.
• The government had to start framing policies and schemes to ensure transgender inclusion.
• The NALSA judgment was not merely a legal case; it was a social revolution that gave the transgender community dignity, respect and legal identity. On the ground, however, its implementation remains fairly weak even today.

Later developments

• Transgender Persons (Protection of Rights) Act, 2019: enacted by Parliament following NALSA. It bans discrimination and provides for an identity certificate. Critics say its certificate process does not fully match the spirit of self-identification found in NALSA, and that it contains no provision for reservation.
• Transgender Persons (Protection of Rights) Amendment Act, 2026: passed by Parliament in March 2026; received the President's approval on 30 March 2026. It removes from the 2019 Act the right to self-perceived gender identity (the right to decide one's own identity for oneself), narrows the definition of a transgender person, and makes the identity certificate dependent on a District Magistrate acting on the recommendation of a medical board. Critics say this runs contrary to the self-identification principle laid down in NALSA.
• Challenge to the 2026 Amendment Act: the Act has been challenged in the Supreme Court. On 4 May 2026, the Court issued notice but did not stay the Act; the matter is pending before a three-judge bench.

Point	NALSA (2014)	2019 Act	2026 Amendment Act
Self-identification	Recognised; no medical test or surgery compulsory	Certificate process criticised as not fully matching the spirit of self-identification	Right to self-perceived gender identity removed
Identity certificate	—	Provided for	Dependent on a District Magistrate acting on the recommendation of a medical board
Reservation	Directed, treating transgender persons as socially and educationally backward classes	No provision	—
Definition of transgender person	—	—	Narrowed

Exam points

Kesavananda Bharati v. State of Kerala (1973)

▶ Watch this part of the lecture (4:01:18)

Case 28. NALSA concerned the right to identity. Kesavananda Bharati v. State of Kerala is the case that changed the entire story of the Indian Constitution. To understand it, the road that led to it must be understood first.

Background: the road to Kesavananda Bharati

The tension and Parliament's response

These cases created a tension. On one side, Parliament believed its own power to be supreme; on the other, the Supreme Court kept saying that this power had certain limits. In response, Parliament brought in three major amendments in 1971 and 1972.

Amendment	What it did
Twenty-fourth Amendment	Undid the effect of Golaknath. Declared that under Article 368 Parliament could use its constituent power to amend any part of the Constitution, and that Article 13 would not apply to amendments.
Twenty-fifth Amendment	Replaced the word "compensation" with the word "amount" in matters of property acquisition. Added Article 31C: any law implementing Article 39(b) and (c) could not be held invalid on the ground of Articles 14, 19 and 31, and no court could question the declaration made in such a law.
Twenty-ninth Amendment	Placed the land reform laws of Kerala into the Ninth Schedule.

In short, Parliament had made its amending power almost unlimited.

Facts

• Into this tension entered the land reform laws of Kerala and Swami Kesavananda Bharati, the head of the Edneer mutt located in the Kasaragod area of Kerala.
• The purpose of the land reforms in Kerala was to take land from big zamindars and give it to the landless.
• These laws also placed a limit on the landholding of religious institutions, which affected the land of the mutt.
• In 1970, Swami Kesavananda Bharati filed a writ petition in the Supreme Court.
• He initially challenged the laws on the ground of the right to property, but the matter soon reached the question of Parliament's amending power.
• The Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments had closed off every other route, so the real question became the validity of these amendments themselves.

Bench and hearing

• The biggest bench in the history of the Supreme Court: thirteen judges.
• Chief Justice S.M. Sikri sat with twelve other judges.
• The hearing ran from 31 October 1972 to 23 March 1973, about 68 days in all.
• Eleven separate judgments followed, spread across about 700 pages.
• The case was not merely about property rights; it was the ultimate test of Parliament's amending power.

Issues

1. Whether the Kerala land reform law violated the petitioner's property rights.
2. Whether the amending power of Parliament under Article 368 is unlimited, that is, the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments.

Arguments

Petitioner (Swami Kesavananda Bharati and supporting interveners)

• The land reform law of Kerala violated their property rights under Article 31 and Article 19(1)(f), as they stood at the time.
• Major argument: the amending power of Parliament could not be unlimited.
• The Constitution has certain fundamental features, such as the rule of law, separation of powers and judicial independence, which must always survive.
• To amend means to improve, not to destroy.
• The most legendary counsel on this side was Nani Palkhivala, whose arguments are still regarded as the finest example of Indian advocacy.

Respondents (Union of India and State of Kerala)

• Attorney General Niren De appeared for the Union of India, and H.M. Seervai for Kerala.
• The amending power is a constituent power, a supreme power similar to the power that created the Constitution itself.
• No implied (unstated) limitation could be read into it.
• Parliament represents the will of the people.
• Flexibility in the Constitution is necessary to implement land reforms and the Directive Principles.
• If judges started inventing limits of their own, the democratic will would be shackled.

Judgment (held)

• Delivered on 24 April 1973 by the thirteen-judge bench.
• Result: seven to six.
• The majority held that Parliament could amend any part of the Constitution under Article 368, fundamental rights included, but could not change or destroy the basic structure of the Constitution.

Basic features named by the judges

• Supremacy of the Constitution
• Separation of powers
• Federalism
• Secularism
• Democracy
• Republican form of government

The rule of law and judicial review are also treated as part of the basic structure, as later cases made clear. The list is not closed: more elements could be added, and indeed were added, in later cases.

Majority and dissent

Majority (7)	Dissent (6)
Parliament is powerful, but not all-powerful.	The amending power of Parliament should be unlimited.
The core of the Constitution remains untouched by amendment.	Otherwise the democratic will would end up restricted.

The decisive opinion of Justice H.R. Khanna

• Justice Khanna's vote created the difference between seven and six.
• He held that the power to amend is very wide, but the word "amend" does not include the power to destroy the basic structure of the Constitution.
• He did not regard the right to property as part of the basic structure.
• That is why Swami Kesavananda Bharati lost his own battle over property, but won the battle for the Constitution of the country.

The "View by the Majority"

After the decision, Chief Justice Sikri prepared a short summary, called the View by the Majority, which was signed by nine of the thirteen judges.

Specific holdings (frequently asked)

Point	Holding
Golaknath	Overruled.
Twenty-fourth Amendment	Valid. Parliament can amend fundamental rights too, but subject to the limit of the basic structure.
Twenty-fifth Amendment ("amount" for "compensation")	Valid.
Article 31C, first part	Remained valid.
Article 31C, second part	Struck down. This was the part which said that no court could even examine whether a law actually implemented that policy. Removing judicial review altogether went against the basic structure.
Twenty-ninth Amendment	Valid.
Preamble	Part of the Constitution. This changed the earlier view taken in Berubari.

Principle / ratio

Parliament's power under Article 368 extends to every part of the Constitution, including fundamental rights, but the word "amend" does not include the power to destroy the basic structure. Any amendment that destroys the basic features can be struck down by the court.

Aftermath

• The judgment created a balance between Parliament and the judiciary, but the government of Indira Gandhi was not happy with it.
• The very next day after the decision, Justice A.N. Ray was made Chief Justice of India.
• Three judges senior to him, Justice J.M. Shelat, Justice K.S. Hegde and Justice A.N. Grover, had all been part of the majority. All three were superseded and resigned.
• The political and constitutional clash kept growing. The Emergency arrived, and the conflict between the judiciary and the executive grew even more intense.
• In November 1975, Chief Justice Ray set up a bench of thirteen judges to reconsider Kesavananda, but after two days of hearing, that bench was dissolved.

Significance: the basic structure as a shield

Later case	Use of the basic structure doctrine
Indira Gandhi v. Raj Narain (1975)	First major practical use of the doctrine; a part of the Thirty-ninth Amendment was struck down.
Minerva Mills (1980)	A limited amending power is itself part of the basic structure.
Waman Rao	Drew the line at 24 April 1973.
I.R. Coelho	Brought the Ninth Schedule within the reach of the doctrine.
National Judicial Appointments Commission amendment (2015)	Fell to the same doctrine.

Even today, any amendment that destroys the basic features can be struck down by the court.

Features later treated as part of the basic structure

• Free and fair elections
• Judicial review
• Limited amending power
• Harmony between fundamental rights and directive principles
• Secularism
• Federalism
• Independence of the judiciary

Criticism and defence of the doctrine

Critics	Supporters
The words "basic structure" appear nowhere in the text of the Constitution.	The doctrine protects the identity of the Constitution from the majority of any one time.
Deciding what is basic and what is not ultimately falls into the hands of judges, who are not elected representatives.	The experience of the Emergency showed just how necessary such a shield is.

Overall assessment

• The case was not merely a legal battle; it was the defence of the democratic soul of India.
• It ensured that the Constitution is a living document, one that can change but that also protects its own core values.
• The personal property dispute of Swami Kesavananda Bharati did not go in his favour, but his name became immortal as a name that made democracy stronger. He passed away in 2020, but his case remains alive in every constitutional law classroom.

Exam points

Case 29: Manoj Narula v. Union of India (2014)

▶ Watch this part of the lecture (4:13:03)

In Kesavananda Bharati, the Court went as far as it could to protect the soul of the Constitution. Manoj Narula is a case in which the Court deliberately recognised its own limits. The question was simple: can a person with a criminal background become a minister? The case has a direct connection with politics and governance.

• Date of decision: 27 August 2014
• Bench: five-judge Constitution Bench led by Chief Justice R.M. Lodha
• Lead opinion: Justice Dipak Misra
• Separate opinion: Justice Madan B. Lokur

Two questions arose in the case:

1. Can people facing serious criminal charges become ministers?
2. Can the Prime Minister advise the President to appoint, as a minister, a person facing charges of serious crimes?

Facts

• The petitioner, Manoj Narula, filed a writ petition in the Supreme Court under Article 32.
• His case was that people facing charges of serious and heinous crimes should not be included in the Union Council of Ministers.
• He challenged the appointment of such people, arguing that it went against the public interest.
• The matter came up before a bench led by the Chief Justice on 24 March 2006. That bench treated it as a matter of great public importance and referred it to a Constitution Bench of five judges.
• The case raised a question of interpretation of Article 75, which deals with Union ministers, and Article 164, which deals with State ministers.
• Article 75(1) says that the President shall appoint the Prime Minister, and shall appoint the other ministers on the advice of the Prime Minister.

Issues

1. Can a person with a criminal background become a minister in the Central or a State government?
2. What are the basic legal requirements for becoming a minister?
3. Can the Supreme Court read an implied prohibition into Article 75(1)? In other words, could Article 75(1) be read to mean that the Prime Minister would not advise the appointment of any person against whom a serious criminal trial was pending?

Judgment: lead opinion of Justice Dipak Misra

No disqualification written into Article 75(1)

• Article 75(1) says nothing about a disqualification of this kind.
• If the Court accepted that having criminal charges bars a person from becoming a minister, it would be adding an extra disqualification to the Constitution, one that is not written there at all.
• This would amount to judicial overreach, that is, the judiciary going beyond its own limits.

Doctrine of implied limitation

• The Court accepted that implied limitation is a valid principle of constitutional interpretation.
• It was this very thinking that gave rise to the basic structure doctrine under Article 368, to protect the identity of the Constitution.
• In the B.R. Kapur case, the Court had read into Article 164(1) the very same disqualification that was already written into the Constitution and the Representation of the People Act.
• Here, however, no disqualification for the mere framing of charges is written anywhere, so it could not be read into Article 75(1).

Constitutional silence

• Sometimes the Constitution deliberately stays silent on a matter. This is called constitutional silence.
• This does not mean that the court should fill every silence on its own.
• The judiciary has no right to add a disqualification. That is the work of Parliament, not of the court.
• Some concepts in the Constitution can be expanded through interpretation, but every concept has its own limit.
• Since there is no such bar in the Constitution or in any statute, a person cannot be legally stopped from becoming a minister merely because charges have been framed against them.

Good governance and the Prime Minister as constitutional trustee

The Court did not stop at the legal position. Justice Misra went on to speak about good governance, which means:

• giving priority to public interest;
• respecting the rights of citizens;
• holding ministers accountable; and
• maintaining clean, fair administration.

The Court used the Latin maxim salus populi suprema lex, which means the welfare of the people is the supreme law.

The Court emphasised the role of the Prime Minister. The Prime Minister is a constitutional trustee, meaning the Constitution has placed its trust in that office. The Prime Minister's decisions should meet the standard of constitutional morality and public trust.

Separate opinion of Justice Madan B. Lokur

• To become a minister, a person must be a member of Parliament, or must become one within six months.
• The qualifications under Article 84 and the disqualifications under Article 102 apply here. If a person does not fall within these disqualifications, that person can become a minister.
• He recalled implied limitations that the Court had already laid down earlier:
  • a non-member can remain a minister for six months, but cannot be repeatedly appointed in this manner; and
  • a person who is already disqualified cannot become a minister.
• A mere FIR, complaint or charge sheet cannot make a person a criminal.
• Under the law, an accused person is innocent until guilt is proved. The framing of charges is not proof of guilt.
• Until there is a conviction, a person cannot legally be stopped from becoming a minister.
• The Court cannot lay down guidelines on who will become a minister and who will not, since that is a decision for the political leadership.

Disqualifications already laid down by Parliament: Section 8, Representation of the People Act, 1951

The Court pointed out that Parliament had already laid down a list of disqualifications in the Representation of the People Act, 1951. Under Section 8:

Situation	Effect
Conviction for certain serious offences	Disqualified as soon as there is a conviction
Some other offences	Disqualified on a sentence of at least six months
Any other offence	Disqualified on a sentence of at least two years
Only charges brought against the person	Not disqualified

This means that even while a criminal trial is going on, a person can contest an election and, if they win, can become a minister.

Criminalisation of politics: a task for Parliament

• The Court accepted that criminalisation in politics is increasing and that the problem needs to be tackled.
• Making a law to stop such people is the job of Parliament.
• The Court can only interpret the law; it cannot make one.

Final conclusion (held)

• The Supreme Court disposed of the writ petition.
• It did not impose any mandatory bar, but expressed a strong moral and constitutional expectation.
• The Prime Minister is expected not to appoint, as a minister, any person facing serious criminal charges, especially charges of corruption or heinous offences on which a court has already framed charges.
• The same expectation applies to Chief Ministers in the States.
• This is an expectation, not a legal compulsion. The Constitution has left the decision to the discretion of the Prime Minister, and the Court placed its trust in that discretion.

Principle / ratio

Until there is a conviction, any person can become a minister, but the Prime Minister is expected to respect constitutional morality and not appoint such people as ministers. Constitutional silence on a disqualification cannot be filled by the court, because adding a disqualification is the work of Parliament.

Significance

• The case is an example of the Court staying within the boundaries of the law while still sending an ethical message to the political leadership.
• The same thread is carried forward by the next case, Public Interest Foundation.

Exam points

Case 30: Public Interest Foundation v. Union of India (2018)

▶ Watch this part of the lecture (4:21:34)

Manoj Narula was about ministers. Public Interest Foundation deals with the next part of the same concern: the candidates who contest elections. The decision addressed the issue of the criminalisation of politics in Indian democracy.

• Date of decision: 25 September 2018
• Bench: five-judge Constitution Bench led by Chief Justice Dipak Misra

Facts

• Some MPs and MLAs face serious criminal charges such as murder, kidnapping and corruption, and yet they contest elections and even win.
• The question arose: once serious charges have been framed against a person, can the court stop that person from contesting elections?
• An organisation called Public Interest Foundation filed a petition on this issue.
• The matter first went to a three-judge bench, which said it raised a question of constitutional importance and referred it to a five-judge Constitution Bench.

Legal framework: Article 102 and Article 191

The question before the Supreme Court was whether the court could use its own power to add new disqualifications beyond those listed in Article 102. Article 102 sets out the grounds on which a person is disqualified from becoming an MP, for instance where the person:

• holds an office of profit under the government;
• has been declared by a court to be of unsound mind;
• is an undischarged insolvent, meaning declared bankrupt and not yet discharged; or
• is not a citizen of India, or has voluntarily taken the citizenship of another country.

Article 102(1)(e) says that any further disqualifications that Parliament lays down by law will also apply. Article 191 contains the same provision for the States.

Arguments

Petitioner

• People against whom charges of heinous crimes such as rape or murder have been framed should not be allowed to contest elections.
• If the court could not stop them directly, then at least they should not be given a political party's symbol.
• This would clean up democracy and allow the public to make an informed choice.
• The Law Commission, in its 244th Report (2014), had suggested that in offences carrying a punishment of five years or more, disqualification should follow once charges are framed, subject to certain safeguards.

Union of India

• Raised the argument of presumption of innocence: in criminal law, every accused is presumed innocent until guilt is proved.

Issues

1. Could the Supreme Court go beyond the scope of Article 102 and create new disqualifications?
2. Could a candidate against whom serious charges had been framed be denied the reserved symbol of a political party?

Both questions were directly connected to the separation of powers between the judiciary and the legislature.

Judgment (held)

Issue 1: who has the power to add disqualifications

• Adding disqualifications is the job of Parliament alone, not of the court. Article 102(1)(e) gives this power to Parliament.
• The court has no power to make a new rule, however good the intention behind it might be.
• The court can interpret the law but cannot make the law. This is the basic principle of separation of powers.
• On the presumption of innocence, the Court said that taking shelter behind this presumption is one thing, but lawmakers ought to be above any serious criminal allegation, and it is for Parliament to enact a strong law to achieve that.

Issue 2: denial of a party symbol

• The Court rejected this as well.
• If a candidate is denied a symbol, that indirectly becomes a new disqualification, and creating one is not the judiciary's job.

Recommendation to Parliament

• Although the Court could not make law, it could make a recommendation.
• It strongly recommended that Parliament enact a law under which people against whom serious criminal charges have been framed would not get a party ticket.
• Under such a law, political parties would also cancel the membership of such people, so as to keep criminals away from politics.
• The Court said that criminalisation of politics is a disaster for democracy.

Voters' right to know

• Even today, voters do not get proper information about the background of candidates.
• The right of voters to know about a candidate's criminal record had already been recognised as part of Article 19(1)(a).
• It was on this basis that the Court issued its directions.

The five directions on disclosure

Every candidate and every political party must follow these directions:

1. Every candidate must declare all pending criminal cases against them along with the nomination form.
2. This declaration must be written in bold letters.
3. If the candidate is contesting on behalf of a political party, the candidate must also inform the party about these criminal cases.
4. The political party must put this information on its official website.
5. Both the candidate and the party must publicise this information at least three times through local newspapers and TV channels after the nomination is filed.

The Court said that the voters' right to know is not just a formality; it is essential for a healthy democracy.

Principle / ratio

• The court cannot add a disqualification beyond Article 102; that power belongs to Parliament under Article 102(1)(e).
• What cannot be done directly cannot be done indirectly.
• The voters' right to know is part of Article 19(1)(a) and justifies directions for disclosure of criminal antecedents.

Significance / impact

• The Court did not impose disqualification directly, but it strengthened the system that gives voters an informed choice.
• This would build public pressure on parties to field candidates with a clean image.
• The judgment was a wake-up call for Parliament, signalling that there should be no further delay in enacting a strong law.

Subsequent developments

This follow-up is often asked in examinations.

Date	Case	What the Court did
13 February 2020	Rambabu Singh Thakur v. Sunil Arora	Noticed that even after the 2018 directions, the number of candidates with a criminal background was rising. Political parties must also explain why they chose such a candidate, and why not some other person with a clean image. This had to be published within 48 hours of selecting the candidate, or at least two weeks before the first date for nominations, whichever was earlier.
10 August 2021	Brajesh Singh v. Sunil Arora	Fined eight political parties for not following these directions during the Bihar elections. Changed the time limit: the information must now be published within 48 hours of selecting the candidate; the option of two weeks before nominations was removed.

Criticism and limitations

• Some called the judgment too soft, because the Court only made a recommendation and did not create a compulsory disqualification.
• Parliament has still not passed any strong law on the basis of these recommendations.
• Implementation on the ground is weak. Declarations do appear in newspapers, but people do not read them.
• Legal experts say the Court showed the right intention, but the real solution depends on Parliament taking action.

Exam points

Case 31: Selvi v. State of Karnataka (2010)

▶ Watch this part of the lecture (4:29:59)

From the criminalisation of politics, the focus moves to criminal investigation, where the question is how far the State can go to extract the truth. Selvi sets a balance between India's criminal investigation system and human rights.

• Date of decision: 5 May 2010
• Bench: three-judge bench led by Chief Justice K.G. Balakrishnan, who wrote the judgment himself

The Supreme Court decided that scientific methods such as the narco-analysis test, the polygraph test and the Brain Electrical Activation Profile test, if forced upon an accused, violate that person's fundamental rights, especially:

• Article 20(3): the right against self-incrimination; and
• Article 21: the right to life and personal liberty, which also includes privacy.

The three tests

Test	How it works
Narco-analysis	The person is injected with a drug such as sodium pentothal, which puts them into a semi-conscious state. It is believed that in that state the person cannot consciously construct a lie.
Polygraph test (lie detector)	Measures physical changes such as blood pressure, pulse, breathing and sweating while questions are being asked.
Brain Electrical Activation Profile test (brain mapping)	Checks whether the person's brain reacts, on hearing information related to an incident, as though the person already knew that information.

Procedural history

• The matter came under the Supreme Court's criminal appellate jurisdiction, meaning it was a case of criminal appeals.
• The first appeal began in 2004. More appeals were added in 2005, 2006, 2007 and 2010.
• On 5 May 2010, the Supreme Court decided all the appeals together.

Facts

• During police investigations in several cases, accused persons were being forced to undergo narco-analysis, polygraph and brain mapping tests.
• Selvi and the other appellants argued that these tests were being carried out without their consent.
• This, they said, was against human dignity and privacy and violated Article 20(3), because the accused was being forced to give evidence against themselves.

Issues

1. Does conducting tests such as narco-analysis, polygraph and brain mapping without consent amount to self-incrimination under Article 20(3)?
2. Do these tests amount to an unreasonable restriction on personal liberty and privacy under Article 21?

Arguments

Appellants (Selvi and others)	State of Karnataka
Article 20(3) clearly states that no accused can be compelled to give testimony against themselves; involuntary narco-analysis and the other tests force the accused to speak.	These tests are an effective investigation tool that causes no physical harm.
The tests are not scientifically reliable, their results are not certain, and their evidentiary value is doubtful.	Main argument: the tests are not testimonial. Article 20(3) applies only to testimony, that is, verbal statements.
Article 21 is violated: when a person is forcibly drugged or sent for brain mapping, personal liberty and privacy are broken together.	When information is drawn out of the subconscious mind through a polygraph or narco-analysis, that is not testimonial compulsion.
This amounts to inhuman treatment, which breaches the right to dignity under Article 21.	The tests are necessary to solve crime, prevent future crimes and speed up investigation.

Analysis of the Court

1. Article 20(3): testimonial compulsion

• In Kathi Kalu Oghad (1961), eleven judges held that to be a witness means disclosing one's own personal knowledge. That is why physical evidence such as fingerprints or handwriting samples is not treated as testimonial.
• In Selvi, the Court said these tests are different. They forcibly extract information that exists inside the accused's own mind, which is exactly that personal knowledge. So this amounts to testimonial compulsion.
• The Court also discussed earlier precedents on self-incrimination, such as M.P. Sharma v. Satish Chandra.
• The protection is not limited to a formally accused person. Section 161(2) of the CrPC gives every person, during police questioning, the right not to answer questions that would incriminate them. This provision is now found in Section 180(2) of the B.N.S.S.
• So suspects and witnesses too are entitled to this protection during investigation.

2. Article 21: liberty, dignity and mental privacy

• Dignity and privacy are an integral part of Article 21.
• Forcibly drugging someone, or scanning their mind with a machine, intrudes into their mental privacy, that private world of the mind which belongs to that person alone.
• Forcing a person to undergo such tests amounts to cruel, inhuman or degrading treatment.

3. Scientific reliability

• These techniques are not foolproof.
• They can be misused.
• They can produce false results.

4. Balance between investigation and rights

• Investigation should be efficient, but individual liberty cannot be sacrificed for it.
• Constitutional safeguards will always come first.

Judgment (held)

• The involuntary use of narco-analysis, polygraph and brain mapping tests is unconstitutional.
• Carried out without consent, these tests violate Article 20(3), because this amounts to self-incrimination.
• They also breach the right to life, liberty and privacy under Article 21.
• These techniques are not reliable and they harm a person's dignity.
• Therefore, the results of tests taken under compulsion cannot become admissible evidence.

Directions issued by the Court

1. Any such test can be conducted only with the consent of the accused.
2. This consent must be given before a Judicial Magistrate.
3. The presence of the accused's lawyer is necessary.
4. The accused must be told in advance about the physical, emotional and legal impact of the test.
5. For the polygraph, the National Human Rights Commission's guidelines of 2000 must be followed.
6. The entire process of the test must be recorded.
7. Most important: information obtained even from a voluntary test will not be treated as a confession; its status will be the same as a statement made before the police.
8. However, if the voluntary test later helps discover some object or fact, that discovery can be admissible under Section 27 of the Evidence Act, a provision now found in Section 23 of the B.S.A.

Principle / ratio

However important an investigation may be, it must always stay within the safeguards of the Constitution. The right against self-incrimination and the right to privacy are both fundamental rights, and justice cannot be achieved by violating them.

Significance / impact

• Individual rights were protected. Dignity and privacy cannot be compromised in the name of investigation.
• A strong balance was struck between the powers of the police and the rights of the accused.
• The right to privacy was strengthened, and the case went on to become one foundation for the 2017 Puttaswamy judgment.
• Later, in the 2019 Ritesh Sinha case, the Court said that a magistrate can order an accused to give a voice sample, because that is physical evidence, not testimonial. This power is now clearly written into Section 349 of the B.N.S.S.

Evidence relating to the body	Information from the mind
Fingerprints, handwriting samples (Kathi Kalu Oghad), voice samples (Ritesh Sinha)	Narco-analysis, polygraph and brain mapping results (Selvi)
Physical evidence, not testimonial	Testimonial compulsion when forced
Can be taken	Cannot be forced out

Exam points

Case 32: Chief Election Commissioner v. Jan Chaukidar (2013)

▶ Watch this part of the lecture (4:39:06)

Selvi looked at the rights of the accused. Jan Chaukidar asked whether a person lodged in jail can contest an election. The case is regarded as a turning point for Indian democracy and election law. What makes it notable is that the Supreme Court delivered its decision and within three months Parliament reversed it.

Facts: the Patna High Court case

• In 2004, during the Bihar elections, many malpractices were reported. One concern was that people lodged in jail were also contesting elections.
• An NGO called Jan Chaukidar, whose English name is Peoples' Watch, filed a public interest petition in the Patna High Court under Article 226.
• The Patna High Court held that people who are in police custody or in jail can neither vote nor contest elections.
• In other words, a person in prison who is not under preventive detention loses both the right to vote and the right to contest an election.

Statutory framework: Representation of the People Act, 1951

• Section 4 and Section 5: to become a candidate for the Lok Sabha or a State Assembly, a person must be an elector.
• Section 62(5): a person lodged in jail, whether serving a sentence or for any other reason, or a person in the lawful custody of the police, cannot vote. Only those in preventive detention are an exception.
• Result: anyone in jail, other than under preventive detention, could neither be an elector nor become a candidate.

Issue

Can a person lodged in jail or in lawful police custody (other than under preventive detention) contest an election?

Judgment of the Supreme Court (held)

• The Chief Election Commissioner challenged the High Court decision before the Supreme Court.
• On 10 July 2013, a bench of Justice A.K. Patnaik and Justice S.J. Mukhopadhaya held that the High Court was entirely correct.
• The same bench delivered its judgment in the Lily Thomas case on the very same day, clearing the way for the immediate disqualification of convicted MPs and MLAs.

The Court's logic was simple:

1. Section 62(5) says that a prisoner cannot vote.
2. If a prisoner cannot vote, that person is not an elector.
3. If that person is not an elector, the qualification to contest an election is also lost.

Voting: a statutory right, not a fundamental right

• The Patna High Court held, and the Supreme Court agreed, that voting is a legal right, that is, a statutory right, and not a fundamental right.
• This principle comes from earlier cases, such as N.P. Ponnuswami and Jyoti Basu v. Debi Ghosal, which held that the right to vote and the right to contest an election are born out of statute.
• Behind this lies the thinking laid down in the 1997 Anukul Chandra Pradhan case: a prisoner loses liberty because of their own conduct, and so cannot get the same rights as a free citizen.

Validity of Section 62(5)

• Some argued that Section 62(5) was against Article 14 (right to equality) and Article 21 (right to life and liberty).
• Their argument: stopping undertrial prisoners, who have not even been convicted yet, from voting violates the principle of innocent until proven guilty.
• Both the accused and the convicted were placed in the same category, which, they said, is not a reasonable classification.
• The Supreme Court had already rejected this challenge in the 1997 Anukul Chandra Pradhan case.

Parliament's response: the Representation of the People (Amendment and Validation) Act, 2013

• The Supreme Court's judgment came on 10 July 2013.
• Within just three months, Parliament passed the Representation of the People (Amendment and Validation) Act, 2013.
• It received the President's assent on 20 September 2013 and was published in the Gazette on 23 September 2013.
• The amendment added a further proviso to Section 62(5): if a person's name is on the electoral roll, that person remains an elector, even if their right to vote is temporarily suspended because they are in jail.
• Only the act of voting stops; the status of being an elector remains.
• The amendment was deemed to have come into force from 10 July 2013 itself, that is, with retrospective effect.
• This is called validation: Parliament changed the law and thereby removed the very basis of the court's decision. The Supreme Court's judgment became ineffective from that same day.
• The position now: a prisoner cannot vote, but if that person's name is on the electoral roll, the person can still contest an election.

Point	After the Supreme Court judgment (10 July 2013)	After the 2013 Amendment and Validation Act
Can a prisoner vote?	No	No (the right to vote is temporarily suspended)
Is the prisoner an elector?	No	Yes, if the name is on the electoral roll
Can the prisoner contest an election?	No	Yes, if the name is on the electoral roll

Challenges to the amendment

• In Manohar Lal Sharma v. Union of India, the Delhi High Court upheld the validity of the amendment in 2014.
• The High Court said that the criminal justice system is based on the principle of innocent until proven guilty, so undertrials in custody cannot be treated as guilty for the purpose of contesting an election.
• It also pointed out the danger that if mere arrest could take away the right to contest an election, the party in power could get its rivals jailed and keep them out of elections. This was called vendetta politics, that is, politics of revenge.
• The Allahabad High Court later also dismissed a petition filed against the amendment.

Significance / impact and criticism

• Parliament's Amendment Act of 2013 nullified the Supreme Court's judgment; the decision did not survive at the practical level.
• One section of critics says that the Court's decision could have been misused, because a ruling party could easily get its rivals jailed and keep them out of elections. That is why Parliament reacted so quickly.
• On the other hand, there is a major concern that even today many MPs and MLAs in India have criminal cases pending against them.
• The question therefore arises: does this step by Parliament strengthen democracy, or does it encourage the criminalisation of politics?
• In the end, Parliament's position held firm, and the Supreme Court's judgment came to nothing.

Exam points

Case 33: Navtej Singh Johar v. Union of India (2018)

▶ Watch this part of the lecture (4:46:49)

This is the decision foreshadowed in the discussion of Joseph Shine and NALSA. It is a historic judgment in which the Supreme Court challenged old laws and opened the path to new thinking and new freedom. The case decided the future of Section 377 of the IPC. It was not only about law; it was about dignity, privacy and human rights.

• Date of decision: 6 September 2018.
• Bench: five-judge Constitution Bench: Chief Justice Dipak Misra, Justice R.F. Nariman, Justice A.M. Khanwilkar, Justice D.Y. Chandrachud and Justice Indu Malhotra.
• Nature of decision: unanimous.

Background: Section 377 of the IPC

• A law of the British (colonial) era, part of the IPC since 1860.
• Title: "Unnatural offences".
• It provided that whoever voluntarily has carnal intercourse with any man, woman or animal, against the order of nature, would be punished with imprisonment for life, or imprisonment of up to 10 years, along with a fine.
• Carnal intercourse means physical relations.
• The problem: the meaning of "order of nature" was nowhere defined in the law, and its interpretation treated consensual same-sex relations as a crime. Consensual means with the agreement of both parties.

Facts

Year	Development
2009	Naz Foundation case: the Delhi High Court held Section 377 unconstitutional to the extent that it criminalised consensual acts between adults in private.
11 December 2013	Suresh Kumar Koushal v. Naz Foundation: a two-judge bench of the Supreme Court reversed the Delhi High Court.
2016	The dancer Navtej Singh Johar and some other petitioners filed a writ petition before the Supreme Court.
2017	Nine-judge Puttaswamy judgment: Justice Chandrachud criticised the reasoning in Koushal.
2018	The matter came before a five-judge Constitution Bench; judgment delivered on 6 September 2018.

Against this background, the petitioners argued that sexuality, sexual autonomy and the right to choose one's own partner are protected under Article 21, and that Section 377 violated their rights by criminalising consensual acts between adults in private.

Issues

1. Was the decision in Suresh Kumar Koushal correct?
2. Is it unconstitutional to criminalise consensual acts between adults under Section 377?

Arguments

Petitioners

• Homosexuality and bisexuality are natural, not a disease.
• Criminalising relations based on consent goes against dignity and privacy.
• Limiting the "order of nature" to procreation alone (producing children) is an outdated Victorian idea.
• According to some estimates, the LGBT community makes up 7 to 8 percent of the population, and protecting their rights is important.
• Section 377 is misused, leading to harassment, discrimination and fear.
• The law violates Article 14 (equality), Article 15 (non-discrimination), Article 19(1)(a) (freedom of expression) and Article 21 (life and dignity).
• Section 377 should be limited only to bestiality (relations with animals) and to non-consensual acts; consensual same-sex relations between adults should be treated as legal.

In favour of retaining Section 377 (mainly some intervenors)

• Section 377 is an old law that punishes unnatural sexual acts and remains medically, morally and constitutionally relevant even today.
• It raises the risk of HIV and AIDS, so the law protects public health.
• Removing Section 377 would disturb the family system and the institution of marriage, and lead the youth in the wrong direction.
• India's culture, heritage and religion are against homosexuality; no fundamental right is violated.
• Allowing consensual same-sex acts would create problems for existing laws such as the Hindu Marriage Act and other divorce laws.
• The Constitution makes no mention of sexual orientation; Article 15 mentions only "sex", not sexual orientation.

Judgment (held)

• The part of Section 377 that criminalised consensual sexual acts between two adults in private is unconstitutional.
• If two adults, whether homosexual (man and man, or woman and woman) or heterosexual, engage in relations in private with consent, it is not a crime.
• Bestiality and non-consensual acts remain crimes.
• Suresh Kumar Koushal was officially overruled.
• Dignity, privacy, equality and choice are the same for all citizens, whatever their sexual orientation.

Principle / ratio

1. Manifest arbitrariness: Justice Nariman held that Section 377 is manifestly arbitrary (clearly unreasonable) and therefore violates Article 14.
2. Sexual orientation within "sex" in Article 15: discrimination on the basis of sexual orientation falls within the word "sex" in Article 15, because such discrimination rests on gender-related stereotypes.
3. Rejection of the "minuscule minority" argument: the Court rejected this reasoning of Koushal. Fundamental rights do not depend on the size of a group. The very purpose of the Constitution is to protect minorities from the thinking of the majority.
4. Constitutional morality: law is governed by the principles of the Constitution, not by the majority's social morality.
5. Transformative constitutionalism: the purpose of the Constitution is to move society towards equality and dignity.

Significance

• A historic turning point: the LGBT community was freed from the criminal tag.
• The law was brought in line with the principle that only harmful acts should be punished.
• In his opinion, Justice Nariman directed the Union of India to give wide publicity to the judgment through the media and to run programmes to remove the stigma. He also directed periodic sensitisation training for police and other government officials.
• Justice Indu Malhotra observed that history owes an apology to this community and their families, for the delay during which they suffered indignity and ostracism for centuries.

"History owes an apology to the members of this community." (Justice Indu Malhotra)

The broader message: every human being has the right to live with their own identity and dignity, and a minority whose voice is right can win in a constitutional court.

Later developments

• When the B.N.S., 2023 replaced the IPC, no provision like Section 377 was retained in it.
• Critics say this has left a legal gap in cases of non-consensual acts against men and in cases of bestiality.

Exam points

Case 34: Sukhdev Singh v. Bhagatram (1975)

▶ Watch this part of the lecture (4:55:31)

This case is the next link in the Article 12 thread after Rajasthan State Electricity Board. It made it clear that statutory corporations are also "State" under Article 12. Public sector corporations such as LIC, ONGC and the Industrial Finance Corporation are therefore bound to follow the Constitution.

• Date of decision: 21 February 1975.
• Bench: five-judge Constitution Bench.
• Majority: 4 to 1.

Facts

• The case was a group of four appeals connected to three statutory corporations: the Oil and Natural Gas Commission (ONGC), the Life Insurance Corporation (LIC) and the Industrial Finance Corporation (IFC).
• In the main appeal, Bhagatram Sardar Singh Raghuvanshi, an employee of ONGC, had been removed from service. His complaint was that ONGC's own statutory regulations had not been followed when he was removed.
• The High Court declared his removal null and void and held that he continued to be in service.
• Sukhdev Singh and the other appellants came to the Supreme Court on behalf of ONGC against this decision; hence the name Sukhdev Singh v. Bhagatram.
• The other appeals raised similar questions relating to LIC and IFC: the legal status of these corporations' regulations, and the result of action taken in breach of them.
• The principle of natural justice was also relevant.

Issues

1. Are statutory corporations "State" under Article 12?
2. Are the regulations made under these corporations' Acts to be treated as law, or merely as contract? (Regulations are detailed rules made under the power given by an Act, such as conditions of service.)
3. Can an employee of a statutory corporation claim the protection of Article 14 (equality before law) and Article 16 (equality of opportunity in public employment)?
4. If an employee is removed without following the regulations, is the employee entitled only to damages (compensation), or must the employee be reinstated in service?

Arguments

Point	Employees	Corporations
Nature of the regulations	The regulations made under the IFC Act, the LIC Act and the ONGC Act have the force of law.	The regulations are not law but a kind of contractual rules; this is a matter of internal management.
Validity of the termination	The termination went against statutory provisions; any order violating these regulations is void.	Section 12 of the ONGC Act and Section 23 of the LIC Act give the corporations power to appoint employees and regulate their service, so the termination is entirely valid within their autonomy.
Remedy	The employee's right is not only to damages but also to continue in service.	Even if there was a breach, at most damages could be awarded, not reinstatement in service.

Background principle: specific enforcement of service contracts

The general rule of law is that a contract of personal service (a master-and-servant kind of contract) is not specifically enforced. If an employer wrongly dismisses someone, the court generally awards only damages, not the job back.

Exceptions to this rule:

1. Government employees protected under Article 311.
2. Cases under industrial law.
3. Cases where a statutory body acts in breach of its own mandatory statutory provisions.

Judgment (held)

The majority opinion was written by Chief Justice A.N. Ray, with Justice Y.V. Chandrachud and Justice A.C. Gupta joining him.

• Statutory corporations such as IFC, LIC and ONGC are State under Article 12. They are not merely business entities; they perform public duties.
• The rules and regulations made under their Acts have the force of law.
• If an employee is removed without following the statutory regulations, the termination is void.

Reasoning of the majority

• When a corporation is created by a statute, the regulations it makes are delegated legislation. These regulations are therefore equal to law.
• Statutory corporations are bound to follow Articles 14 and 16.
• The Court referred to Rajasthan State Electricity Board v. Mohan Lal (1967).

Concurring opinion of Justice K.K. Mathew

• Regarded as the most far-reaching opinion in the case.
• The modern welfare State performs many functions through corporations, so public corporations are in reality an agency or instrumentality of the government.
• If such corporations were kept outside Article 12, the government could take the form of a corporation and escape fundamental rights altogether.
• This thinking later grew into the instrumentality test in the R.D. Shetty case (1979) and the Ajay Hasia case (1980).

Dissent of Justice A. Alagiriswami

• These corporations do not exercise the sovereign power of the State, so they are not an "authority" under Article 12.
• Their regulations do not have the force of law, so the employees could not be given a declaration that they continued in service.

Opinion	Judge(s)	View
Majority	Chief Justice A.N. Ray, Justice Y.V. Chandrachud, Justice A.C. Gupta	Statutory corporations are State; regulations are delegated legislation with the force of law; termination in breach is void.
Concurring	Justice K.K. Mathew	Public corporations are an agency or instrumentality of the government; keeping them outside Article 12 would let the government escape fundamental rights.
Dissent	Justice A. Alagiriswami	No sovereign power, so not an authority under Article 12; regulations lack the force of law; no declaration of continuance in service.

Relief: final outcome

• Employees are not entitled only to damages. They can get a declaration that they continue in service (continuation of service).
• In Bhagatram's case, the Supreme Court upheld the High Court's declaration that his removal was null and void and that he continued in service.
• A statutory corporation is State under Article 12, and its employees are entitled to the protection of fundamental rights and to the principles of natural justice.

Significance

• A landmark precedent: public sector corporations cannot escape constitutional accountability.
• Employees' rights are protected through Articles 14 and 16.
• When a statutory power removes an employee, the statutory regulations and natural justice must be followed.

Exam points

Case 35: Mohini Jain v. State of Karnataka (1992)

▶ Watch this part of the lecture (5:03:02)

This case returns to education, where the story of Modern Dental has its roots. In it the Supreme Court interpreted education as a fundamental right: education is not merely a luxury but a right that every citizen ought to have. The biggest point: the Court declared the capitation fee system unconstitutional. The idea is captured in Nelson Mandela's description of education as the most powerful weapon with which the world can be changed.

• Date of decision: 30 July 1992.
• Bench: Justice Kuldip Singh and Justice R.M. Sahai.

Parties and provisions

• Petitioner: Mohini Jain, from Meerut in Uttar Pradesh.
• Respondents: the State of Karnataka and the private medical college where she sought admission. An association of private medical colleges also intervened.
• Legal provisions involved: Article 21, Article 14, Article 41, and the Karnataka Educational Institutions Prohibition of Capitation Fee Act, 1984.

Facts

Mohini Jain wanted admission to the MBBS course at a private medical college in Karnataka. A notification of the Karnataka government fixed the fee structure for these colleges:

Category of student	Fee per year
Government seats	Rs 2,000
Other students from Karnataka	Up to Rs 25,000
Students from outside Karnataka	Up to Rs 60,000

• Since Mohini Jain was from outside Karnataka, the college demanded Rs 60,000 per year from her.
• She also alleged that the management separately demanded Rs 4.5 lakh as capitation fee; the management denied this.
• Her family could not afford the amount, and she was denied admission. Her question was whether education was meant only for the rich, and she filed a petition in the Supreme Court.

Issue

The Karnataka government's 1989 notification allowed private medical colleges to charge such heavy fees, while Karnataka's own 1984 Capitation Fee Act clearly banned the charging of capitation fee. Was the 1989 notification valid, or was it unconstitutional?

Meaning of capitation fee

• Harm: education moves out of reach of poor and middle-class students and remains available only to those who can afford it.
• The Court held that the fee charged above the government-seat fee was, in substance, nothing but capitation fee under a different name.

Arguments: grounds of challenge

1. Violation of law: the 1989 notification went directly against the 1984 Act, which clearly banned capitation fee. Section 3 of that Act prohibits the charging of capitation fee and also provides a penalty for its violation.
2. Violation of fundamental rights: if education is available only to those who can pay, this is arbitrary and discriminatory. It violates equality before law under Article 14 and the right to life with dignity under Article 21.

Constitutional provisions examined

Provision	What it says	How the Court used it
Article 21	No person shall be deprived of life and personal liberty except according to procedure established by law.	The right to life means the right to live with dignity, and education is essential to a life of dignity.
Article 41 (Directive Principle)	The State shall, within the limits of its economic capacity, make effective provision for securing the right to work, to education and to public assistance.	If the State itself permits capitation fee, it is ignoring its own constitutional duty.
Article 14	Equality before law.	Capitation fee is discriminatory: it advantages rich students and keeps poor students away from education, so that money, not merit, decides admission.

Judgment (held)

• Capitation fee was declared unconstitutional.
• The right to education is an integral part of Article 21, because education is necessary for a life of dignity.
• Capitation fee is an arbitrary and discriminatory practice that violates the equality guaranteed under Article 14.
• The parts of the Karnataka government's 1989 notification that permitted fees of Rs 25,000 and Rs 60,000 were quashed.

Prospective operation and relief

• The judgment was made prospective in operation. Students already admitted on the basis of these fees did not get its benefit and continued their studies on the same terms as before.
• Mohini Jain herself received no personal relief, because she had not been selected on the merit list and the course had already begun.
• She did not win a seat for herself, but she won a principle for lakhs of students across the country.

Later developments

Examiners ask about this line of development very often.

Year	Development
1992	Mohini Jain: education is part of Article 21; capitation fee unconstitutional.
1993	Unni Krishnan: right to free education up to 14 years; beyond that, subject to the State's economic capacity (Article 41).
2002	T.M.A. Pai Foundation: the Unni Krishnan fee and admission scheme held wrong.
2002	86th Constitutional Amendment: Article 21A added, giving every child between 6 and 14 years a fundamental right to free and compulsory education. Article 45 amended to deal with early childhood care and education for children below 6 years. A fundamental duty on parents to provide their children with opportunities for education added to Article 51A.
2009	Right of Children to Free and Compulsory Education Act, 2009: 25 percent of seats reserved for children from weaker sections, even in private unaided schools.

Significance

• Society: education is not merely a privilege of the rich but a right belonging to everyone; capitation fee is completely illegal.
• Law: the case became the foundation of the right to education, leading to Unni Krishnan, Article 21A and the RTE Act, 2009.
• Governance: the government was forced to make strict laws regulating admissions and fees, and the accountability of colleges increased.
• It began a new era in which education was treated not as a commodity but as a basic human right.

Exam points

Case 36: Minerva Mills v. Union of India (1980)

▶ Watch this part of the lecture (5:11:18)

In Mohini Jain, the Directive Principle in Article 41 was read alongside the fundamental rights. In Minerva Mills Limited v. Union of India, the very question was which of the two should be placed above the other: fundamental rights or Directive Principles. The case further strengthened the basic structure of the Constitution and restored the balance between fundamental rights and Directive Principles. After Kesavananda Bharati, it is the most important chapter in the story of the basic structure.

• Bench: five-judge Constitution Bench led by Chief Justice Y.V. Chandrachud.

Facts

• Minerva Mills was a private textile company located in Bangalore, Karnataka.
• Its production had fallen considerably, and the government felt that its management was working against the public interest.
• 1970: the Central Government set up a committee to investigate the company under the Industries Development and Regulation Act.
• 1971: on the basis of that report, the government took over the management of the company.
• 1974: the Sick Textile Undertakings Nationalisation Act was passed, and the company was formally nationalised. To nationalise means to bring a private company under government ownership.
• The shareholders of Minerva Mills filed a petition directly challenging the Constitution (Forty-second Amendment) Act, 1976, in particular its Section 4 and Section 55, which had changed Article 31C and Article 368.

Issues

1. Do Section 4 and Section 55 of the 42nd Amendment damage the basic structure of the Constitution?
2. Can the Directive Principles (Part IV) be made more powerful than the fundamental rights (Part III)?

Both issues were to decide the future course of India's Constitution.

What the 42nd Amendment changed

The 42nd Amendment was passed during the Emergency and is often called a mini-Constitution, because it made very sweeping changes to the Constitution.

Provision of the 42nd Amendment	Earlier position	Change made
Section 4 (Article 31C)	Article 31C protected only laws implementing the policies in Article 39(b) and (c) from challenge under Articles 14, 19 and 31.	Any law made to implement any Directive Principle anywhere in Part IV would get the same protection.
Section 55 (Article 368)	No such clauses.	Clause (4) added: no constitutional amendment could be challenged in any court on any ground whatsoever. Clause (5) added: no limitation at all on Parliament's amending power, so Parliament could add, change or remove any part of the Constitution.

The petitioners argued that all of this, taken together, destroyed the basic structure.

Arguments

Petitioners (shareholders of Minerva Mills)

• Section 4 of the 42nd Amendment placed fundamental rights below the Directive Principles, destroying the very core of the Constitution, its basic structure.
• Making rights such as Articles 14 and 19 ineffective in this manner amounts to a kind of permanent Emergency. The Constitution allows these rights to be suspended for some time during an actual Emergency, but this amendment weakens them forever.
• Parliament cannot have unlimited power to remove the basic structure of the Constitution itself, which is exactly what Section 55 did.
• Clauses were inserted into Article 368 saying that no amendment could even be challenged in court.
• Taken together, this kills the soul of democracy and creates an authoritarian State in which Parliament decides everything without any checks and balances.

Government of India

• The case was merely an academic debate: Article 19(1)(f) and Article 31, the property rights, had already been removed from the list of fundamental rights by the 44th Amendment of 1978.
• If some rights need to be restricted to implement Directive Principles, the restriction serves the public interest and does not destroy the basic structure.
• Directive Principles such as Article 38 promote social, economic and political justice; laws made to achieve them do not work against fundamental rights but fulfil the purpose of the Constitution.
• Judicial review has not been shut down completely. A court can still examine whether a law truly connects to a Directive Principle, whether the restriction on fundamental rights is necessary for that purpose, and whether the restriction damages the basic structure.
• For all these reasons, the 42nd Amendment is valid.

Judgment (held)

Section 55: clauses (4) and (5) of Article 368

• Clause (5) gave Parliament unlimited power, so that Parliament could, if it wished, remove the entire Constitution. This was a complete violation of the basic structure doctrine.
• Reasoning of Chief Justice Chandrachud: the Constitution gave Parliament a limited power to amend it. Whoever receives a limited power cannot use that very power to turn it into an unlimited one. A limited amending power is itself part of the basic structure.
• Clause (4), which barred any challenge to an amendment in any court, was also declared unconstitutional. The judiciary's power to review amendments is itself part of the basic structure; if judicial review were removed, the Constitution's own safeguard would disappear.

Section 4: expanded Article 31C

• Section 4 was also declared unconstitutional, because under it Articles 14 and 19 would become completely ineffective against any law made in the name of Directive Principles.
• The Indian Constitution stands on the foundation of a balance between Part III and Part IV. Giving one absolute primacy over the other disturbs that harmony.
• This harmony and balance between fundamental rights and Directive Principles is itself an essential feature of the basic structure.
• Directive Principles are the goals; fundamental rights are the means of reaching those goals. The means cannot be destroyed in the name of achieving the goals.

The golden triangle

In the same judgment, Chief Justice Chandrachud described Articles 14, 19 and 21 as a golden triangle. These three Articles stand between the people and unchecked power and guarantee the fulfilment of the promises made in the Preamble. The phrase is extremely famous in constitutional law today and is also associated with Maneka Gandhi.

Partial dissent of Justice P.N. Bhagwati

• He agreed with the majority in striking down clauses (4) and (5) of Article 368.
• But he considered the expanded Article 31C, as brought in by the 42nd Amendment, to be valid.
• In his opinion, giving priority to laws that implement Directive Principles was in keeping with the Constitution's vision of social revolution.

Provision	Majority	Justice P.N. Bhagwati
Article 368(5): unlimited amending power	Unconstitutional	Unconstitutional
Article 368(4): bar on judicial review of amendments	Unconstitutional	Unconstitutional
Expanded Article 31C (Section 4)	Unconstitutional	Valid

Later development

What Minerva Mills did not strike down

• Minerva Mills did not strike down the entire 42nd Amendment, only its Section 4 and Section 55.
• The same amendment added the words socialist, secular and integrity to the Preamble, and brought fundamental duties into Part IVA. Both remain part of the Constitution today.
• Many other Emergency-era changes had already been reversed earlier by the 44th Amendment of 1978.

Significance

Minerva Mills made it clear that the Constitution is a balance between rights and duties, and between liberty and social justice.

Exam points

Case 37: Samsher Singh v. State of Punjab (1974)

▶ Watch this part of the lecture (5:20:49)

Minerva Mills settled the limit on Parliament's power. Samsher Singh turns to the posts at the very top of the executive. It explains how the Governor and the President actually exercise their powers: on their own personal judgment, or on the aid and advice of the Council of Ministers. This concept is the foundation of India's parliamentary system. The Governor's discretion, discussed earlier in Nabam Rebia, has its roots in this case.

• Decided: 23 August 1974
• Bench: seven-judge Constitution Bench
• Appellants: Samsher Singh and Ishwar Chand Agarwal
• Respondent: State of Punjab

Facts

• Samsher Singh was a subordinate judge working on probation.
• The Punjab government terminated his service on 27 April 1967. The order was passed in the name of the Governor, but no reason was given for it.
• In much the same way, another probationer judge, Ishwar Chand Agarwal, had his service terminated in December 1969, on the recommendation of the High Court, again in the name of the Governor.
• Both appealed to the Supreme Court, arguing that their termination was illegal.

Issues

1. Can the Governor, acting on his own discretion and without the aid and advice of the Council of Ministers, appoint or remove members of the subordinate judicial service?
2. Put differently: when the Constitution speaks of the satisfaction of the Governor, is that satisfaction personal to the Governor, or is it really the satisfaction of the Council of Ministers? This was the main constitutional question.
3. Connected question: were the terminations valid in view of the protection under Article 311(2)?

Arguments

Appellants

The appellants' argument sounds a little counter-intuitive at first.

• The power of appointment and removal had to be exercised personally by the Governor.
• In their case, the Governor had not applied his own mind at all. The decision had actually been taken by a minister or by officers, and only the Governor's name had been used. This made the termination invalid.
• They relied on Sardari Lal (1971), which had held that under Article 311, the satisfaction of the President is personal to him and not that of the Council of Ministers.
• Article 234: the power to appoint subordinate judges lies with the Governor.
• Article 163: certain powers are exercised by the Governor in his own discretion, without the advice of ministers.
• Article 154: the executive power of the State is vested in the Governor, so the Governor is the real holder of power.
• A rule under the Punjab Civil Service Rules allowed the Governor, acting on the recommendation of the High Court, to remove a probationer judge without giving any reason.

State of Punjab

• The scheme of the Constitution is entirely different.
• The Governor and the President are both constitutional heads, and their actions are always taken on the aid and advice of the Council of Ministers.
• Article 166 states that executive action is taken in the name of the Governor, but the actual decision is made by the ministers.
• If the Governor were to do everything personally, there would be no need for a Council of Ministers at all, and parliamentary democracy could not function.

Judgment (held)

The Supreme Court overruled Sardari Lal. The majority opinion was written by Chief Justice A.N. Ray. Justice V.R. Krishna Iyer, together with Justice P.N. Bhagwati, wrote a very famous concurring opinion.

Executive power and aid and advice

• Article 53(1) and Article 154(1) vest the executive power in the President and the Governor. This does not mean that they exercise that power personally.
• The power always operates on the aid and advice of the Council of Ministers.
• Under the scheme of Articles 77 and 166, the government's executive acts are carried out in the name of the President or the Governor, but the actual decisions are taken by the ministers.
• The Indian system is modelled on the British parliamentary system. The President and the Governor, like the Crown in England, are constitutional heads; the real power lies with the cabinet.
• Aid and advice means that the decision belongs to the ministers, and the Governor functions as a formal head. The Governor does not personally interfere, except in a few limited situations under Article 163.
• Wherever the Constitution refers to the satisfaction of the President or the Governor, it means not their personal satisfaction, but the satisfaction of the Council of Ministers.

Exceptions listed by Justice Krishna Iyer

Justice Krishna Iyer set out a few exceptional situations in which the head of State might have to act on his own discretion:

• When no party has a clear majority and a Prime Minister or Chief Minister has to be chosen.
• When a government has lost its majority but still refuses to give up office.

Such situations are very rare. In every other matter, the head of State ought to follow the advice of the ministers.

Subordinate judges and the High Court's control (Article 235)

• The Governor cannot appoint or remove subordinate judges on his own will. This is an executive act and must be carried out on the aid and advice of the Council of Ministers.
• Specific to the subordinate judiciary: under Article 235, the High Court has control over subordinate courts. The Governor must therefore act in these matters in keeping with the recommendation of the High Court.
• The Court expressed strong displeasure that, in Ishwar Chand Agarwal's case, the High Court had got the inquiry against a judicial officer conducted through the government's own Vigilance Department. This amounted to the High Court stepping back from its own control and went against judicial independence.

Article 311(2): form versus substance

Article 311(2) says that no government employee can be dismissed, removed or reduced in rank without an inquiry and a reasonable opportunity to present their case.

Termination simpliciter	Termination that is really a punishment
Based only on a finding that the probationer was not found suitable for the job.	In reality based on allegations of misconduct.
A probationer can generally be removed without being given a reason.	It amounts to a punishment, and the protection of Article 311(2) applies.

Outcome for the appellants

• Ishwar Chand Agarwal: his termination was, in substance, based on an inquiry into misconduct, and he had not been given a proper chance to be heard in that inquiry. The Court invalidated the termination and declared him once again a member of the Punjab Civil Service, Judicial Branch.
• Samsher Singh: his termination was also set aside. The allegations against him were very minor; in reality the termination was a punishment that went against Rule 9 of the Punjab Civil Services Punishment and Appeal Rules, 1952. By then he had already taken up a job in the Ministry of Law, so he was given salary and other financial benefits only for the period up to that point.

Principle / ratio

Significance

The principle found its way directly into the text of the Constitution:

• The Forty-second Amendment (1976) inserted into Article 74(1) a clear statement that the President shall act in accordance with the advice of the Council of Ministers.
• The Forty-fourth Amendment (1978) added that the President may send the advice back once for reconsideration, but must act in accordance with the advice given again thereafter.

Samsher Singh is regarded as a landmark judgment, especially whenever an exam question turns on the powers of the Governor and the President.

Exam points

• Seven-judge bench.
• Sardari Lal overruled.
• Satisfaction means the satisfaction of the Council of Ministers.
• The British model: President and Governor as constitutional heads, like the Crown.
• The exceptions listed by Justice Krishna Iyer.
• The High Court's control under Article 235.
• Form versus substance under Article 311.
• Forty-second Amendment (Article 74(1)) and Forty-fourth Amendment (reconsideration once).

Case 38: Justice K.S. Puttaswamy v. Union of India (2017)

▶ Watch this part of the lecture (5:30:20)

Samsher Singh showed how executive power is actually structured. Puttaswamy is the case referred to again and again in earlier cases, from ADM Jabalpur to Selvi and Navtej. It is the historic judgment that declared the right to privacy to be a fundamental right in India. It widened the scope of Article 21 and became the centre of the entire debate around Aadhaar and privacy.

• Decided: 24 August 2017, unanimously
• Bench: nine-judge Constitution Bench led by Chief Justice J.S. Khehar

Facts

• Justice K.S. Puttaswamy, a retired judge of the Karnataka High Court, challenged the Aadhaar scheme in the Supreme Court in 2012.
• Under the Aadhaar system, citizens' biometric and demographic data was being collected. The petitioners argued that this violated citizens' privacy rights.
• In 2015, during the hearing, the Attorney General pointed to two earlier Supreme Court judgments, M.P. Sharma v. Satish Chandra (1954), decided by eight judges, and Kharak Singh v. State of Uttar Pradesh (1962), decided by six judges. Both, he said, had held that the right to privacy was not clearly written into the Constitution and was therefore not a fundamental right.
• The technical problem: in later cases such as Gobind, R. Rajagopal and PUCL, smaller benches had treated privacy as a right, but the earlier decisions of larger benches stood against that view. A smaller bench cannot overrule the decision of a larger bench.
• The challenge to Aadhaar therefore remained on hold until it was settled whether privacy was a fundamental right.
• The matter first went to a five-judge bench. On 18 July 2017, that bench, led by the Chief Justice, held that a nine-judge Constitution Bench would decide whether M.P. Sharma and Kharak Singh had been correctly decided.

Biometric data	Demographic data
Identifying information drawn from the body itself, such as fingerprints and the iris scan of the eyes.	Information such as one's name, address and date of birth.

Issues

1. Is privacy a fundamental right under the Indian Constitution?
2. If it is, does it form part of Articles 21, 19 and 14?
3. What is the doctrinal basis for privacy?
4. What are its scope and its elements?
5. What role does the State have: can it regulate this right at all?

Arguments

Petitioners

• The right to privacy is a natural right, one that stays with a person from birth to death.
• Life and personal liberty under Article 21 is not confined to mere physical existence; it includes a dignified life.
• M.P. Sharma and Kharak Singh were wrongly decided because they were based on the thinking in A.K. Gopalan, where every fundamental right was read as sitting in its own separate compartment. That approach had already been rejected in R.C. Cooper and Maneka Gandhi.
• Privacy is not merely a legal right but a fundamental right protected under Part III, and it is also part of international human rights norms.

Union of India

• The Constitution contains no clear mention of privacy.
• The scope of privacy, and the extent to which it should be regulated, is a matter for Parliament to decide.
• Privacy is a vague concept that can only be regulated through statute.
• The earlier judgments were correct in holding that privacy is not part of the fundamental rights.
• Privacy is an elitist concept, belonging only to those with means; for poor people, food, clothing and shelter matter far more.

The Court's analysis

Article 21, liberty and dignity

• The meaning of Article 21 is not confined to mere survival; such a narrow reading would be wrong.
• Justice D.Y. Chandrachud (whose opinion was the plurality opinion of four judges): privacy is an inseparable part of liberty and dignity. Privacy is not a gift handed down by the Constitution, but a natural right that the Constitution merely recognises.
• Justice S.A. Bobde: privacy is linked to dignity and autonomy; dignity is not possible without privacy.
• The State cannot take this right away in an arbitrary manner.

Three facets of privacy (Justice J. Chelameswar)

Facet	Meaning
Repose	Peace of mind; the right to be left alone.
Sanctuary	A secure private space that belongs to a person.
Intimate decisions	Control over the most personal decisions of one's life.

Forms of privacy

Form	Meaning	Illustrations
Physical privacy	Privacy relating to the body.	Being forced to give a blood test or a DNA sample.
Informational privacy	A person's control over their own information.	Location data, Aadhaar data, banking information.
Decisional privacy	Freedom to make one's own personal decisions.	Which religion to follow, whom to marry, what to eat.

Privacy is not absolute: the three-fold test

The State can regulate or restrict privacy, but only under strict conditions, by satisfying a three-fold test:

1. Legality: there must be a valid law behind the restriction.
2. Legitimate aim: the purpose of the restriction must itself be valid, such as national security or the prevention of crime.
3. Proportionality: the step taken must be reasonable in proportion to that purpose, and no more than what is necessary.

• Justice S.K. Kaul stressed the need for procedural safeguards alongside proportionality.
• He also referred to the right to be forgotten in the context of informational privacy: the right, in certain situations, to have one's old information removed.
• Aadhaar or surveillance are therefore valid only when proper safeguards are in place.

Negative and positive aspects (Justice Chandrachud)

Negative aspect	Positive aspect
The State should not interfere with privacy.	The State has a duty to actively protect privacy.

The government should therefore enact a strong data protection law, because today the threat to privacy comes not only from the State but from big technology companies as well.

Judgment (held)

• The Supreme Court unanimously declared that the right to privacy is a fundamental right under Part III of the Constitution.
• M.P. Sharma (1954) and Kharak Singh (1962) were overruled to the extent that they had held privacy was not a fundamental right.
• Privacy, under Article 21, is an intrinsic part of life and personal liberty, and it is also protected as part of the other freedoms guaranteed in Part III.
• Justice Chelameswar, in his separate opinion, added that only the most serious privacy claims would attract the strictest test, one requiring a compelling State interest.
• The message of the whole nine-judge bench: privacy is not a luxury; it is a basic right.
• In the same judgment, Justice Chandrachud expressly overruled ADM Jabalpur and criticised the reasoning in Suresh Kumar Koushal (whose impact was seen in Navtej).

The "elitist concept" argument rejected

• Civil and political rights on one hand, and socio-economic rights on the other, are not opposites but complement each other.
• Poor people deserve just as much dignity and privacy as anyone else.
• In this age of technology, the threat to informational privacy is the greatest of all. The State therefore has a positive duty to put in place a strong framework for data protection.

Subsequent developments

• During the Puttaswamy hearing itself, on 31 July 2017, the government set up a committee on data protection under Justice B.N. Srikrishna.
• The validity of Aadhaar went to a five-judge bench in 2018 (see the case callout below).
• In the 2018 Aadhaar judgment, the proportionality standard was clarified further by directly applying the four steps laid down in Modern Dental College.
• Parliament eventually enacted the Digital Personal Data Protection Act, 2023.

Principle / ratio

Significance

Privacy is now officially a fundamental right. The case became the foundation for the entire debate around Aadhaar and data protection. In India, dignity, liberty and privacy now stand constitutionally protected together.

Exam points

• Nine judges, unanimous, led by Chief Justice J.S. Khehar; 24 August 2017.
• M.P. Sharma and Kharak Singh overruled.
• Privacy as a natural right.
• Physical, informational and decisional privacy.
• Three-fold test: legality, legitimate aim and proportionality.
• ADM Jabalpur overruled.
• The data protection Act of 2023.

Case 39: Rameshwar Prasad v. Union of India (2006)

▶ Watch this part of the lecture (5:40:36)

Puttaswamy dealt with the privacy of the individual. Rameshwar Prasad returns to federalism and the Governor's role, a theme already seen in Nabam Rebia and Samsher Singh. It raises a major debate about India's federal structure, democracy and the powers of the Governor.

• Bench: five-judge Constitution Bench
• Majority: 3:2
• Operative part pronounced: October 2005
• Detailed reasons: 24 January 2006

Facts

• The case relates to the Bihar Legislative Assembly. Elections were held in Bihar in February 2005, but no party or alliance secured a full majority. This situation is called a hung assembly.
• Since no party appeared able to form the government, President's Rule was imposed under Article 356 in March 2005.
• The Assembly was not dissolved but kept in suspended animation: it continued to exist but remained temporarily inactive.
• Governor Buta Singh sent a report to the President stating that certain people were trying to gather a majority through illegal means, namely the buying and selling of MLAs, commonly called horse-trading.
• On the basis of this report, the Bihar Assembly was dissolved on 23 May 2005 and fresh elections were announced.
• The Assembly had not even held its first meeting, and its members had not yet taken oath, yet it was dissolved.
• At that time, an alliance led by Nitish Kumar, of Janata Dal (United) and the BJP, that is the NDA, was preparing to stake its claim to form the government.
• The dissolution was challenged in the Supreme Court by Rameshwar Prasad and other petitioners.

Issues

1. Can an Assembly be dissolved before it has even held its first meeting?
2. Was the dissolution of the Bihar Assembly unconstitutional?
3. If it was, can the Assembly be restored?
4. Can a court review the Governor's action at all, or is the Governor completely immune under Article 361?

Relevant provisions

Provision	Content
Article 174(2)(b)	Gives the Governor the power to dissolve the Assembly.
Article 172	The term of an Assembly is five years, counted from the date fixed for its first meeting.
Article 356(1)	President's Rule, which applies when the government of a State cannot function in accordance with the Constitution.
Article 361(1)	The Governor is not answerable to any court for acts done in an official capacity.
Article 188	An MLA must take oath before taking up their seat.

The interpretation of all these Articles was the core of the case.

Arguments

Petitioners

• The Governor had no solid material showing that horse-trading was actually taking place in Bihar.
• By stopping Nitish Kumar from staking a claim to form the government, the Governor had shown political bias.
• The Assembly had not even taken oath, so it could not be dissolved at all.
• Questions of defection fall within the jurisdiction of the Speaker; the Governor had interfered with the Speaker's power.
• Most importantly, the Governor's action went directly against the S.R. Bommai judgment, which had held that the question of majority ought to be decided on the floor of the House.

Union of India

• The Governor is immune under Article 361 and cannot even be issued notice by a court.
• The Governor had received inputs from various sources that MLAs were being bought using money, caste and position as inducements.
• If a government were formed on such a tainted majority, democracy would become weak and lose all meaning.
• The Governor had sent his report after careful consideration; this was not unconstitutional in any way.

Judgment (held)

Dissolution before the first meeting

• No provision of the Constitution says that dissolution can happen only after the first meeting.
• Once the notification of the Assembly's formation is issued after the elections, the Assembly is treated as constituted, and it can be dissolved.
• The condition is that this power must not be misused.

Article 361: immunity is personal

• The immunity given to the Governor is personal to him: the Governor himself cannot be compelled to become a party before a court or to answer there in person.
• This does not mean that the validity of his action is beyond examination. The Union of India can step in to defend the action, and the court can examine it.

Article 356 proclamation and judicial review

• Article 356 is an extraordinary power and must not be misused, so judicial review of its exercise is permitted.
• A court can examine whether the Governor's report was genuinely based on relevant material.
• Here, the Governor had no solid evidence that MLAs were actually being bought. His report was built only on his own assumptions and opinion.
• The Governor's action was a mere pretence, an appearance without substance, whose real purpose was to stop one political party from staking its claim to form the government.
• The President's satisfaction was therefore based on grounds that were wholly extraneous and irrelevant. Such a make-believe action is a fraud on power.
• Chief Justice Y.K. Sabharwal: what the Governor had done amounted to a violation of democratic values. If a party commands a majority, even one resting on the support of other parties, it cannot be stopped from staking its claim. By getting the Assembly dissolved, the Governor had misused the Constitution and distorted the political process.

The role of the Governor

• A Governor is not a political ombudsman, that is, not a moral watchdog over politics. His job is to protect the Constitution, not to get an Assembly dissolved on the strength of mere speculation.
• The power relating to defection lies with the Speaker, not with the Governor.
• A Governor cannot, merely on his own doubts, deprive the side commanding a majority of its right to form the government.
• The Governor had shown undue haste, and there was no real material to support the claim of horse-trading.
• A situation had been deliberately engineered so that no one would get the chance to form a government.
• For all these reasons, the entire act was unconstitutional.

After the decision, Governor Buta Singh resigned from his post.

Why the Assembly was not restored

Although the dissolution was unconstitutional, the Assembly was not restored. The election process had already begun, huge expenditure had already been incurred, and it would not be right to plunge the State back into uncertainty. Fresh elections were allowed to proceed on their fixed schedule.

Rameshwar Prasad	Nabam Rebia
Action held unconstitutional, but the Assembly was not restored; fresh elections went ahead.	The Court restored the status quo ante.

Minority view

Justice K.G. Balakrishnan and Justice Arijit Pasayat dissented. In their view, the Governor's report could not be called mala fide, and a court ought not to interfere so deeply with the satisfaction of the President.

Principle / ratio

Significance

• Constitutional morality matters most of all in a democracy.
• The office of the Governor is constitutional, not political.
• Long before this case, the Sarkaria Commission had already said that Article 356 should be used only as a last resort.

Exam points

• Dissolution of the Bihar Assembly before its first meeting.
• Immunity under Article 361 is personal to the Governor.
• Judicial review over action taken under Article 356.
• Absence of relevant material.
• Dissolution unconstitutional, yet no restoration.
• 3:2 majority.

Case 40: Government of NCT of Delhi v. Union of India (2018)

▶ Watch this part of the lecture (5:49:33)

Bihar showed a clash between the Governor and an elected Assembly. Delhi shows a clash between the Lieutenant Governor and the elected government. Government of National Capital Territory of Delhi v. Union of India is a classic example of federalism, democracy and constitutional morality. It decided where real power over Delhi lies: with the Chief Minister or with the Lieutenant Governor.

• Decided: 4 July 2018
• Bench: five-judge Constitution Bench led by Chief Justice Dipak Misra

Facts

• In Delhi, the Chief Minister and the Lieutenant Governor kept clashing over who held greater power. From the posting of officers to the files of government schemes, there was a dispute at every level.
• Several writ petitions were filed in the Delhi High Court seeking clarity.
• In 2016, the Delhi High Court held that Delhi was a Union Territory and that the Lieutenant Governor, as the representative of the President, was the final authority.
• The Delhi government approached the Supreme Court, arguing that this decision went against federalism and democracy.
• Because the matter involved the interpretation of Article 239AA, a Constitution Bench was set up.

Issue

Should the National Capital Territory of Delhi be treated as an ordinary Union Territory, where the Lieutenant Governor is effectively the boss, or as an entity with a special status, where the Lieutenant Governor must act on the aid and advice of the Chief Minister and the Council of Ministers?

Relevant provisions

Provision	Content
Article 239	The President administers Union Territories through an appointed administrator.
Article 239A	Parliament can create a legislature or a Council of Ministers for certain Union Territories, as it did for Puducherry.
Article 239AA	Inserted by the Sixty-ninth Constitutional Amendment (1991), following the recommendations of the Balakrishnan Committee. Gives Delhi a unique status: an elected Legislative Assembly and a Council of Ministers headed by the Chief Minister. The Lieutenant Governor acts on the aid and advice of the Council of Ministers, except on certain specified matters.
Proviso to Article 239AA(4)	Deals with a difference of opinion between the Lieutenant Governor and the ministers on "any matter". In such a case, the Lieutenant Governor must refer it to the President.

Arguments

Delhi government	Lieutenant Governor and the Union
Article 239AA gave Delhi a representative government.	Delhi remains a Union Territory even now.
The Lieutenant Governor is only a nominal head and must act on the advice of the Chief Minister; aid and advice means the Lieutenant Governor cannot take independent decisions.	Despite the special status, the proviso to Article 239AA gives the Lieutenant Governor the power to refer any matter to the President where there is a difference of opinion.
The main purpose of the Sixty-ninth Amendment was to give the people of Delhi an accountable government.	Delhi is the capital of the country, so the Union must have overarching (overall) control.
If the Lieutenant Governor kept referring every matter to the President, democracy would be damaged.	The Lieutenant Governor's role is not like a State Governor's, but more like that of an administrator.

Judgment (held)

Sui generis status

• The status of Delhi is sui generis, meaning unique in its own category. Delhi is neither fully a State nor an ordinary Union Territory, but a separate, special category of its own.
• Under Article 239AA(4), the Lieutenant Governor is bound to act on the aid and advice of the Chief Minister and the Council of Ministers.
• The Lieutenant Governor has no independent decision-making power. Either the Lieutenant Governor follows the advice of the ministers or, where there is a difference of opinion, refers the matter to the President and abides by that decision.

"Any matter" does not mean "every matter"

• The words "any matter" in the proviso do not mean every matter.
• The Lieutenant Governor cannot raise a difference of opinion on every small or big decision and send it to the President.
• A reference should be made only in exceptional and serious matters, and only after first trying to resolve the differences through discussion.
• The Lieutenant Governor should not be obstructionist, that is, should not block every decision.

Legislative and executive power

• The Delhi Legislative Assembly can make laws on all subjects in the State List and the Concurrent List, except three: public order, police and land.
• Executive power follows the same line: on subjects where the Assembly can legislate, the Chief Minister and ministers have control, while the Union government controls police, land and public order.
• Every decision of the Council of Ministers must mandatorily be communicated to the Lieutenant Governor, but the Lieutenant Governor's concurrence (formal agreement) is not necessary.
• If a matter is urgent, the Lieutenant Governor can take temporary action without waiting for the President's decision. This is an exception, not the general rule.

Elected government of Delhi	Union government
All subjects in the State List and the Concurrent List on which the Assembly can legislate.	Public order, police and land.

Collaborative federalism and constitutional trust

• Constitutional morality demands that people holding constitutional posts work with mutual trust and cooperation.
• Neither the Centre nor the Lieutenant Governor can arbitrarily interfere with the decisions of an elected government. The decisions of those elected by the people deserve respect.
• Justice D.Y. Chandrachud and Justice Ashok Bhushan each wrote separate concurring opinions.

Principle / ratio

Significance

• The Chief Minister gained greater administrative clarity.
• The Lieutenant Governor's concurrence was no longer needed for day-to-day files and routine matters.
• The decision became a strong precedent and a guidepost for future federal disputes.

Subsequent developments (often asked in exams)

• The question of services, that is, the posting and transfer of officers, was not fully settled by the 2018 decision.
• On 11 May 2023, another Constitution Bench held that the elected government of Delhi would also have control over services, except for police, public order and land.
• Parliament then enacted the Government of National Capital Territory of Delhi (Amendment) Act, 2023, and set up a National Capital Civil Service Authority, consisting of the Chief Minister and two senior officers. The final word on its decisions rests with the Lieutenant Governor.
• The Act was challenged in the Supreme Court and the matter was referred to a Constitution Bench. After the government in Delhi changed in 2025, the new government withdrew the petition, so the Court has not yet decided the validity of this Act.

Exam points

• Article 239AA and the Sixty-ninth Amendment.
• Sui generis status of Delhi.
• Aid and advice is binding on the Lieutenant Governor.
• "Any matter" does not mean "every matter".
• The exception for public order, police and land.
• Collaborative federalism.
• The 2023 services judgment and the Act that followed it.

Case 41: A. K. Gopalan v. State of Madras (1950)

▶ Watch this part of the lecture (5:57:35)

In 1950, the very year the Constitution came into force, Indian democracy faced its first major constitutional test. The questions before the country were these:

• Can the government send a person to jail without a trial?
• Does the Constitution have anything to say about it?
• Is the Constitution truly a protector, or just a document on paper?
• Are fundamental rights supreme, or can the government limit them whenever it wishes?

This was the case in which the Supreme Court gave its first detailed interpretation of fundamental rights, where even small points about the meaning of liberty, security and law turned into major decisions. It is regarded as India's first major constitutional case, bringing out the tension between fundamental rights and preventive detention. In this very case, the dissenting judge, Justice Fazl Ali, planted the seeds that grew, 28 years later, into the Maneka Gandhi case.

Bench and date

• Decision delivered on 19 May 1950.
• Six-judge bench led by Chief Justice H. J. Kania.
• On the legality of the detention, the decision went 4:2.
• Justice Mahajan joined Justice Fazl Ali in holding the detention illegal, but on a narrow ground: that Section 12 of the Act did not satisfy the conditions of clause (7) of Article 22.
• At the level of doctrine, the real dissent was that of Justice Fazl Ali alone.

Facts

• A. K. Gopalan was a Communist leader from Kerala, who later became a major voice of the opposition in the Lok Sabha.
• He was already in detention, and in 1950 he was kept in jail under a fresh order passed under the Preventive Detention Act, 1950.
• He filed a writ of habeas corpus in the Supreme Court under Article 32, arguing that his detention was illegal and that he should be released immediately.
• His main argument: putting him in jail without a trial violated his fundamental rights under Articles 13, 19, 21 and 22.

Constitutional provisions involved

• Article 19: gives citizens certain freedoms, such as freedom of speech, freedom to move throughout the country and freedom to form associations.
• Article 21: no person can be deprived of life and personal liberty except according to procedure established by law.
• Article 22: special safeguards at the time of arrest and detention.
  • Clauses (1) and (2) apply to ordinary arrest: being told the reason for arrest, the right to consult a lawyer, and production before a magistrate within 24 hours.
  • Clauses (4) to (7) apply to preventive detention: if a detention lasts more than three months, an advisory board must give its opinion; the detenu must be told the grounds of detention; and the detenu must get a chance to make a representation, that is, to put his case in writing.

Issues

1. Was the Preventive Detention Act unconstitutional?
2. Could Article 19 and Article 21 be read together?
3. Did "procedure established by law" include natural justice?
4. Was Article 22 a complete safeguard for preventive detention?

Arguments

For Gopalan (petitioner)

• His liberty had been taken away without a fair procedure. Article 21 requires a procedure established by law, and the Preventive Detention Act was not fair.
• Section 14 of the Act said that the grounds of detention, or the detenu's representation, could not even be disclosed before a court. The detenu therefore could not properly defend himself in court, which was a clear injustice.
• Articles 19 and 21 had to be read together, because liberty does not mean only physical freedom. Once a person is detained, all his freedoms of speech, movement and profession are taken away.
• In Article 21, "law" cannot mean just any law made by the State; it must be a just, fair and reasonable law that includes natural justice.
• Article 22 gives a right of representation, but if there is no hearing at all and no independent tribunal, that representation is useless.
• As in the American Constitution, India too should have due process, under which courts examine whether the law itself is fair.

For the State of Madras and the intervener, the Union of India

• Article 22 is a complete code for preventive detention. If all its clauses are complied with, there is nothing further to check.
• Articles 19 and 21 have no bearing, because the moment a person is lawfully detained, his rights under Article 19 automatically stand suspended.
• "Procedure established by law" means a law made by the legislature; the court cannot examine whether that law is reasonable or fair.
• Section 14 is valid, because confidentiality is necessary for national security.
• Even the freedom of movement under Article 19(1)(d) can be restricted in the public interest, and the Preventive Detention Act exists precisely for public safety.

Historical background: why "procedure established by law"

• The draft Constitution had originally proposed the phrase "due process of law".
• When Constitutional Adviser B. N. Rau visited America, Justice Felix Frankfurter advised him that due process gave judges very wide power and could allow laws meant for social reform to get stuck in the courts.
• The Drafting Committee then took inspiration from the Constitution of Japan and used the phrase "procedure established by law" instead.
• In other words, the framers deliberately chose not to adopt due process. This fact helps explain the majority's thinking.

Judgment: the majority view

1. Articles 19 and 21 must be read separately. Article 19 applies only to citizens, while Article 21 applies to both citizens and foreigners. A person who has been lawfully detained cannot claim rights under Article 19, because after detention the rights of movement and expression are automatically restricted.
2. Procedure established by law does not mean due process of law. The Constitution deliberately chose not to use the phrase "due process". The court would only examine whether the detention was carried out under a valid law, not whether that law was fair or unfair. "Law" here means enacted law, a law made by the State.
3. Article 22 is a special provision for preventive detention. If all the rules under Article 22 are followed, the detention is treated as valid.

Section 14 struck down

• The Court declared Section 14 unconstitutional, because it stopped the detenu from placing the grounds of detention before a court.
• This made both Article 22(5) (the right to be told the grounds and to make a representation) and Article 32 (the right to approach the Supreme Court) meaningless.
• The rest of the Act was held valid. Even without Section 14, the Act could function on its own; Section 14 was severable.
• The detention of A. K. Gopalan was therefore held legal.

Dissent of Justice Fazl Ali

The dissent of Justice Fazl Ali is the most important part of the case; it went on to define the future of Indian constitutional law.

• Articles 19, 21 and 22 must be read together, because the three work together. Personal liberty cannot be divided into separate compartments.
• Detaining a person violates both Article 21 and Article 19, because the freedom of movement under Article 19(1)(d) is itself a part of personal liberty. When someone is detained without a fair hearing, both movement and liberty are lost. Detention is therefore a direct attack on fundamental rights.
• "Procedure established by law" should not mean merely a technical procedure. It should include the four basic principles of natural justice:
  1. notice;
  2. an opportunity to be heard;
  3. an impartial tribunal; and
  4. an orderly procedure.
• The Preventive Detention Act did not have proper safeguards. The detenu got no chance to be heard and no opportunity to appear before an impartial authority. All of this went against the principles of Article 21.
• "Law" must mean a fair, just and equitable procedure, containing the basic elements of natural justice, such as the right to be heard.

Point	Majority	Justice Fazl Ali (dissent)
Articles 19, 21 and 22	Separate; to be read separately	Must be read together; liberty cannot be compartmentalised
Meaning of "law" in Article 21	Enacted law made by the State	Fair, just and equitable procedure with natural justice
Procedure established by law	Not due process; court checks only whether a valid law exists	Includes notice, hearing, impartial tribunal and orderly procedure
Effect of detention on Article 19	Lawful detention automatically restricts Article 19 rights	Detention violates both Article 19(1)(d) and Article 21
Validity of detention	Legal (Section 14 alone struck down)	Illegal

Principle / ratio: three doctrines

1. Articles 19 and 21 are separate. This is the theory of compartmentalisation, or mutual exclusivity: every fundamental right is a separate, closed compartment.
2. Procedure established by law is not equal to due process of law. The court would only check whether the procedure existed in law, not whether it was fair or unfair.
3. Relationship between Article 22 and Article 21.
   • Chief Justice Kania did not accept the Attorney General's argument that preventive detention was fully covered by Article 22 alone. In his view, on the matters Article 22 addresses, it is a complete code; but on procedural matters where it is silent, Article 21 continues to apply.
   • Justice Mahajan, however, treated Article 22 as a fully self-contained code.
   • Even so, the majority refused to add anything new to the safeguards of Article 22 in the name of natural justice.

Significance: how the dissent became law

• R. C. Cooper (Bank Nationalisation case), 1970: an eleven-judge bench, by a majority of 10:1, rejected the theory of compartmentalisation.
• Maneka Gandhi v. Union of India, 1978: the Supreme Court fully adopted the thinking of Justice Fazl Ali, holding that procedure established by law must be fair, just and reasonable, or else it would violate Article 21.
• Justice Fazl Ali was thinking far ahead of his time, and his dissent later became one of the strongest foundations of the Indian Constitution.

Why Gopalan is still studied

• Its central reasoning has since been overturned, but understanding the starting point is necessary to understand the whole journey of Indian constitutional law.
• Gopalan showed the path of literal interpretation (a word-for-word reading); Maneka showed the path of purposive interpretation (interpretation guided by the purpose of the law).
• The question of preventive detention did not end there. The Preventive Detention Act, 1950 was extended from time to time and finally lapsed at the end of 1969. It was followed by MISA, 1971 (seen in ADM Jabalpur), and today laws such as the National Security Act, 1980 still exist. The safeguards of Article 22, and the debate from Gopalan to Maneka over them, remain relevant.

Exam points

Keywords for a short note:

• Preventive Detention Act, 1950
• Section 14 struck down (severable)
• Compartmentalisation
• Procedure established by law versus due process
• Article 22 as a complete code on the points it covers
• Dissent of Justice Fazl Ali
• The change brought about in R. C. Cooper and Maneka Gandhi

Case 42: Common Cause v. Union of India (2018)

▶ Watch this part of the lecture (6:10:38)

Gopalan shows how narrow the starting point of Article 21 was; Common Cause shows how far the same Article travelled, all the way to the last moment of life. Consider a person in the ICU with no chance of recovery, kept alive only by machines, who wants to be allowed to die with dignity. Does that person have the right to make that decision? Is it illegal to decide to remove one's own life support? Common Cause is the historic judgment that, for the first time in India, gave a clear answer to these questions: is the right to die with dignity a fundamental right, and is it legal to make a living will?

Bench and date

• Decided unanimously on 9 March 2018.
• Five-judge Constitution Bench led by Chief Justice Dipak Misra.

Facts

• An NGO called Common Cause filed a writ petition in the Supreme Court under Article 32.
• Its case: the right to life with dignity under Article 21 must also include the right to die with dignity.
• A person who is terminally ill (the illness is incurable and death is certain) and on life support should have the option of writing down his wishes in advance.

Why the matter reached a Constitution Bench: conflicting earlier decisions

• P. Rathinam v. Union of India (1994): held Section 309 of the IPC (attempt to commit suicide) unconstitutional, and held that the right to die was part of Article 21. The decision proved very controversial.
• Gian Kaur v. State of Punjab (1996): a five-judge bench overruled Rathinam, holding that the right to life does not include the right to die, and upheld Section 309 as valid. But it also said that for a person already close to death, in a permanent condition, the right to die with dignity at the end of life could be part of the right to life.
• Aruna Ramchandra Shanbaug v. Union of India (2011): see below.

To resolve these conflicting decisions, the matter went to a five-judge Constitution Bench.

Issues

1. Is the right to die with dignity part of Article 21?
2. Is passive euthanasia legal, and if so, under what conditions?
3. Can a living will or advance directive be treated as legal, and how would it be implemented?

Arguments

Petitioner (Common Cause)

• Every human being should have the right to decide, once the process of death has already begun, whether he wishes to be kept alive artificially.
• Staying alive is a right, but once dignity itself is lost, dying with dignity should also be part of the same right to dignity.
• Modern technology keeps patients alive artificially with no chance of recovery, which becomes a torture for both the patient and the family.
• The petitioner was not asking for a right to die, but for a right to die with dignity.
• A living will was necessary so that, when a patient is in a hopeless condition, doctors would not find themselves in legal trouble.

States and the Union of India

• Several States said in their affidavits that the right to life under Article 21 is connected to things like food, shelter and health, not death. The right to die with dignity could not be part of Article 21, because the State's first responsibility is to save life.
• The Union pointed out that the Law Commission, in its 2006 report on the treatment of terminally ill patients, had proposed a draft Bill, but the Health Ministry was not in favour of turning it into law.
• The Union's position was that the Aruna Shanbaug guidelines should simply continue to be followed.
• During the hearing, the Centre also opposed the living will, saying it could be misused.

Relevant provisions

• Article 21
• Article 14
• Section 306 of the IPC (abetment of suicide), now Section 108 of the B.N.S.
• Section 309 of the IPC (attempt to commit suicide)

Judgment (held)

Right to die with dignity

• Article 21 does not mean only the right to live; dignified death is also part of the same right.
• When a patient's disease cannot be cured, the patient is near the end of life and there is no chance of recovery, the patient should have the right to have unnecessary life support removed.
• This right is based on the principle of self-determination and individual autonomy. Every adult has the complete right to make decisions about his own body, including the right to refuse treatment.

Suicide versus passive euthanasia; active versus passive euthanasia

Suicide	Passive euthanasia
An active decision in which a person deliberately attempts to kill himself	The patient simply refuses unnecessary treatment; this does not cause death, but refuses to artificially delay a natural death and accepts it with dignity

Passive euthanasia	Active euthanasia
Removing life support so that death occurs naturally	Carrying out an external act, such as an injection or poison, that causes death
Legal in India, subject to safeguards	Remains illegal in India

The Court noted that in many countries passive euthanasia is legal, whether through legislation or through court decisions.

Two forms of passive euthanasia

• Withdrawal: removing life support that is already running.
• Withholding: simply not starting a treatment that would only artificially delay death.

In both situations the condition is the same: the patient's condition must be incurable, and the decision must be taken on the basis of the patient's previously written wishes, or his best interest, following the prescribed safeguards.

Living will

A living will can be a legal document, prepared in advance by a person for the future. If that person later goes into a coma or a terminal condition, his wishes already exist in written form, which preserves both clarity and dignity.

The 2018 guidelines on living wills

Who can make one

• Only an adult of sound mental condition, who can understand what he is signing, and who is under no pressure.

Contents of the document

• It must clearly state under what condition life support should be removed.
• It must leave no ambiguity.
• It must name a guardian who can take the decision in that condition.
• The person who makes the document, called the executor, can cancel it at any time.

Recording

• Signed in the presence of two witnesses.
• A Judicial Magistrate First Class countersigns it, verifies it and retains a copy.
• Copies are also given to the District Court, the local government officer and the family physician.

Implementation

1. The treating doctor confirms that the patient is terminally ill.
2. The hospital sets up a medical board: the head of the treating department and at least three senior experts.
3. If that board agrees, the matter goes to the District Collector, who sets up a second medical board of new doctors.
4. This board examines the patient and, if it agrees, informs the Judicial Magistrate; after his approval the living will is implemented.
5. If the medical board refuses, the executor, or any relative or doctor, can approach the High Court under Article 226. The High Court sets up an independent medical committee and decides on the principle of the best interest of the patient, that is, what would be best for the patient.

Later developments

2023 simplification

In practice, the 2018 process turned out to be very long and difficult. On 24 January 2023, a five-judge bench led by Justice K. M. Joseph simplified the guidelines.

Point	2018 guidelines	2023 simplified guidelines
Authentication of the living will	Countersigned by a Judicial Magistrate First Class	Attested by a notary or a gazetted officer
Medical boards	First by the hospital; second by the District Collector	Both constituted by the hospital itself
Role of the Magistrate	Approval required before implementation	Simply informed of the decision

Under the 2023 guidelines, the medical boards must generally decide within 48 hours.

Harish Rana v. Union of India (2026)

Principle / ratio

• The right to die with dignity is part of Article 21.
• Passive euthanasia is legal, but subject to proper safeguards.
• A living will or advance directive is legally enforceable.
• When a person is terminally ill and death is certain, the process of dying should be smooth, not painful; that person's dignity must be protected up to the last moment.
• Denying legal recognition to advance directives would amount to denying that person's dignity.
• Article 21 is meaningful only when it includes dignity, and dignity must be present not only in living but in dying as well.
• In such a condition, the person's own interest is given priority over the State's interest in preserving life, provided the medical boards and legal safeguards are followed.

Section 309 IPC: a common confusion

• Gian Kaur upheld Section 309 as valid, so it is not correct to call it unconstitutional.
• Section 115 of the Mental Healthcare Act, 2017: a person who attempts suicide is presumed to have been under severe stress, unless proved otherwise. Such a person is not prosecuted under Section 309 of the IPC, but is instead given care.
• Under the B.N.S. (2023), an ordinary attempt to commit suicide is no longer a crime. Punishment survives in only one situation: where a person attempts suicide with the intention of preventing or compelling a public servant from performing his duty, covered under Section 226 of the B.N.S.

Significance

Common Cause opened a new chapter in Indian constitutional law, one where the right to life means not merely staying alive, but living with dignity and leaving with dignity too.

Exam points

Case 43: Indira Nehru Gandhi v. Raj Narain (1975)

▶ Watch this part of the lecture (6:23:33)

This was not merely an election dispute; the case shook both Indian politics and the Constitution and settled very important points about the basic structure doctrine and the role of the judiciary. Coming just two and a half years after Kesavananda Bharati, it is the case in which the basic structure doctrine found its first major practical application, striking down part of a constitutional amendment passed during the Emergency on the basis of that doctrine.

Bench and date

• Decision delivered on 7 November 1975.
• Five-judge bench: Chief Justice A. N. Ray, Justice H. R. Khanna, Justice K. K. Mathew, Justice M. H. Beg and Justice Y. V. Chandrachud.

Facts

The 1971 election

• In the 1971 Lok Sabha election, Indira Gandhi, then Prime Minister, was the Congress candidate from the Rae Bareli seat in Uttar Pradesh.
• Against her stood Raj Narain, a strong opposition leader and a close associate of the socialist leader Ram Manohar Lohia.
• Indira Gandhi won, and Congress formed the government, winning 352 out of 518 seats.

Election petition in the Allahabad High Court

• Raj Narain filed an election petition in the Allahabad High Court, alleging that Indira Gandhi had taken unfair advantage in the election: misusing government resources, using government machinery for her campaign and resorting to certain corrupt practices.
• Indira Gandhi herself appeared before the High Court as a witness, becoming the first Prime Minister to do so.
• On 12 June 1975, Justice Jagmohanlal Sinha found her guilty under Section 123(7) of the Representation of the People Act, which treats taking the help of certain government employees for one's own benefit in an election as a corrupt practice.
• The Court found that the help of a gazetted officer, Yashpal Kapoor, had been taken, and that Uttar Pradesh government officers had been made to arrange things like the stage, loudspeakers and electricity.
• Her election was declared void and she was barred from contesting any election for six years, which meant she would also have had to give up the post of Prime Minister.
• The High Court stayed its own judgment for 20 days, so that an appeal could be filed in the Supreme Court and the Congress party would have time to make arrangements, such as choosing a new leader.

Appeal and interim order

• Indira Gandhi appealed to the Supreme Court.
• On 24 June 1975, the vacation judge, Justice V. R. Krishna Iyer, passed a conditional interim order: she could remain Prime Minister and be present at the proceedings of Parliament, but could not vote as a Lok Sabha member, could not take part in the proceedings as a member and could not draw a member's salary.
• As Prime Minister, she could still speak in Parliament, under Article 88.

Emergency and the 39th Amendment

• The very next day, on 25 June 1975, President Fakhruddin Ali Ahmed declared a National Emergency on the ground of internal disturbance.
• In August 1975, the 39th Constitutional Amendment inserted Article 329A, which said that the election of the Prime Minister and the Speaker could not be challenged in the ordinary courts at all.
• Clause (4) of Article 329A directly declared that the election of Indira Gandhi would be treated as valid, regardless of any decision of any court. The power of the judiciary was clearly cut down.
• Parliament also made retrospective changes to the election laws, so that the very grounds on which the High Court had set aside the election would cease to exist.

Issues

1. Was clause (4) of Article 329A valid, or unconstitutional?
2. Were the election law amendment Acts of 1974 and 1975 constitutionally valid?
3. Was the election of Indira Gandhi valid or void?

Arguments

For Raj Narain	For Indira Gandhi
The 39th Amendment stripped the judiciary of its power and went against the basic structure doctrine.	Parliament had full power to regulate the election process.
Parliament could make laws, but deciding the election dispute of a particular individual was the job of a court.	Under Article 122, courts could not interfere with the proceedings of Parliament.
Article 14 was violated: everyone is equal before the law, and different treatment for the Prime Minister went against the rule of law.	No violation of Article 14; placing the Prime Minister's election in a special category was a policy decision.

Judgment (held)

1. Clause (4) of Article 329A invalid

• It damaged the basic structure.
• Different judges pointed to different basic features: Justice Khanna said that free and fair elections are a basic feature of democracy; other judges emphasised the rule of law, equality and judicial review.
• Deciding one individual's election dispute directly through the Constitution, without any hearing, was neither proper law-making nor justice. An election cannot be declared valid by directly deciding a particular election dispute through a constitutional amendment.
• The majority gave no finding on the validity of clauses (1) to (3) of Article 329A.

2. Election law amendments valid

• The amendments to the Representation of the People Act and the Election Laws were held valid; Parliament has the power to regulate elections.
• The basic structure doctrine applies to constitutional amendments, not to ordinary laws. An ordinary law is tested against specific provisions of the Constitution, such as fundamental rights and legislative competence, not against the basic structure.

3. Indira Gandhi's election valid

• On the amended election laws, a corrupt practice was not proved.
• The amended law linked the definition of a candidate to the date of nomination, 1 February 1971, and Yashpal Kapoor's resignation had already taken effect before that date.
• The election expenses were also within the fixed limit.
• The Allahabad High Court decision was reversed, and Indira Gandhi remained Prime Minister.

Principle / ratio

Significance

• A turning point: the basic structure doctrine and judicial review were reaffirmed at a new level.
• After Kesavananda, it became the first major example of part of a constitutional amendment being struck down using the shield of the basic structure.
• Parliament's amending power is limited; the rule of law and free and fair elections are essential pillars of democracy.
• The government that came to power after the Emergency removed Article 329A altogether through the 44th Amendment, 1978.
• The case turned a single election dispute into a constitutional revolution: democracy can survive only when the judiciary is independent and elections are free and fair.

Exam points

Keywords to include in an answer:

• Allahabad High Court judgment of 12 June 1975
• Section 123(7) of the Representation of the People Act
• 39th Amendment and the striking down of clause (4) of Article 329A
• Free and fair elections as a basic feature
• Basic structure doctrine not applying to ordinary laws
• Removal of Article 329A by the 44th Amendment

Case 44: Bijoe Emmanuel v. State of Kerala (1986)

▶ Watch this part of the lecture (6:32:44)

Where the Indira Gandhi case showed that even power at the very top is subject to the limits of the Constitution, Bijoe Emmanuel shows the Constitution protecting the faith of three schoolchildren. It is regarded as a very important decision on freedom of religion.

• Bench: Justice O. Chinnappa Reddy and Justice M. M. Dutt.
• Date of decision: 11 August 1986.

Background

• Three siblings, Bijoe, Binu Mol and Bindu Emmanuel, studied at a school in Kerala.
• All three belonged to a Christian sect called the Jehovah's Witnesses.
• According to their faith, they do not sing songs in worship of, or in tribute to, anything at all, whether the National Flag or the National Anthem, because worship belongs to God alone. For them, singing the anthem amounted to an act of worship.

Facts

• At the school's morning assembly, when the National Anthem, Jana Gana Mana, was sung, the three children stood up respectfully but did not join in the singing.
• Once the matter came up, the school expelled them on the direction of an education officer.
• The education authorities relied on two circulars issued by the Director of Public Instruction, in 1961 and 1970, which required the whole school to sing the anthem.
• The parents said the children were showing no disrespect; they simply did not sing because of their religious faith.
• When the father's representations did not help, the children filed a writ petition in the Kerala High Court. Both the single judge and then the Division Bench dismissed it. The matter then reached the Supreme Court.

Issues

The broad question was whether not singing the anthem, while standing respectfully, amounts to disrespecting the country; whether the State can force a person to sing the anthem against their religious faith; and whether this is a matter of fundamental rights or of violating a fundamental duty. The Supreme Court framed three questions:

1. Is singing the National Anthem compulsory, and can the State force a person to sing it against their religious faith?
2. Does not singing amount to disrespect, or does standing up respectfully fulfil the duty under Article 51A to respect the anthem?
3. Was the State's action a reasonable restriction, justifiable in the name of public order, morality or health?

Court's reasoning

Genuineness of the faith

• On the facts, the children showed no disrespect at all. They stood silently and respectfully.
• Their refusal came from a genuine, that is, sincere, religious faith. The Jehovah's Witnesses believe worship of any person or object is not permitted; worship belongs to God alone.
• It is not for a court to decide whether a religious faith is rational. The only question is whether the faith is genuinely held.

Prevention of Insults to National Honour Act, 1971

• Section 3 of the Act makes it an offence to intentionally prevent the singing of the National Anthem, and equally an offence to cause a disturbance in an assembly that is singing it.
• Standing respectfully and simply not joining in the singing neither prevents the singing nor disturbs the assembly. So the children had committed no offence at all.

Executive instructions cannot restrict fundamental rights

• The government instructions requiring the school to have the anthem sung had no statutory basis; they did not flow from any law.
• A restriction on fundamental rights can be imposed only by law, not by executive instructions.

Fundamental duty under Article 51A(a)

• Article 51A, clause (a), places a duty on every citizen to respect the National Anthem. Standing up respectfully is itself an act of respect.
• General principle: fundamental duties are very important but, unlike fundamental rights, they are not directly enforceable through the courts.
• Respect does not mean one must sing. Standing up respectfully is also a valid way of showing respect.
• A Commission set up after the matter arose also reported that the children had always been well-behaved, law-abiding and respectful.

Judgment (held)

• The Supreme Court ruled in favour of Bijoe and his siblings.
• Forcing the children to sing the anthem against their religious faith violated Article 25(1), their freedom of conscience and religion.
• It also violated Article 19(1)(a), because freedom of speech includes the freedom to remain silent.
• So long as there is no disrespect, standing respectfully and listening to the anthem is also a valid way of showing respect.
• The circulars could not be treated as issued in the interest of public order, decency or morality, so they did not justify the restriction.
• The Court directed the school to readmit the children.

"Our tradition teaches tolerance; our philosophy preaches tolerance; our Constitution practises tolerance; let us not dilute it." (Justice Chinnappa Reddy, closing line of the judgment)

Significance

• Duties such as respecting the anthem are important fundamental duties, but fundamental rights cannot be crushed in their name.
• It strengthened secularism: the State cannot force a person to act against their religious faith.
• National unity does not mean uniformity (making everyone identical); it means unity that respects diversity.
• The Constitution is not merely a piece of paper. It protects freedom, thought and faith, and in a conflict between the State and a citizen, the court acts according to the true spirit of the Constitution, the protection of every individual's liberty.
• Later development: on playing the anthem in cinema halls, the Supreme Court made it compulsory in 2016, but in 2018 changed that order to make it optional.

Exam points

Case 45: M. R. Balaji v. State of Mysore (1962)

▶ Watch this part of the lecture (6:39:42)

M. R. Balaji is the very first major milestone in the story of reservation: the point where the 50 percent rule began, the rule met again in Indra Sawhney, Nagaraj and Ashok Kumar Thakur. The case is connected to Article 15(4). The Supreme Court explained what the limit on reservation should be and how far backwardness can be decided purely on the basis of caste. It drew a clear line between caste and class, and for the first time raised the question whether reservation beyond 50 percent is constitutional.

• Bench: five judges; judgment written by Justice P. B. Gajendragadkar.
• Date of decision: 28 September 1962.

Background: Article 15(4)

• Article 15(4) permits the State to make special provisions for the advancement of socially and educationally backward classes, and of Scheduled Castes and Scheduled Tribes, such as reservation in education.
• It was added by the First Amendment of 1951, after the Supreme Court struck down the caste-based admission order of Madras in the Champakam Dorairajan case.
• Its purpose is to achieve real equality, that is, to bring forward those who have been left behind.

Facts

• In 1962 the Mysore government passed a Government Order dividing backward classes into two categories: backward classes and more backward classes.
• In the State's engineering and medical colleges, a total of 68 percent of seats were reserved, including the share for backward and more backward classes and for S.C. and S.T.
• Only 32 percent of seats were left for general merit.
• Twenty-three petitioners who could not get admission despite ranking ahead on merit challenged the order in the Supreme Court under Article 32, arguing it was a misuse of Article 15(4).

Issues

1. Was the order reserving 68 percent of seats valid under Article 15(4), or was it a fraud on the Constitution?
2. Did the State of Mysore have the power to divide backward classes into two categories, backward and more backward?
3. Did a 68 percent reservation fall within a reasonable limit, and did it fulfil the purpose of Article 15(4)?

Arguments

Petitioners	State of Mysore
Only the President, not a State government, can declare backward classes, and a commission must first be set up under Article 340.	The classification was rational and intelligible.
Reservation can be introduced only through legislation (a law), not through an executive order.	Besides caste, occupation and poverty had also been taken into account.
A caste-based list is irrational; deciding a backward class purely on the basis of caste is wrong.	Article 15(4) lays down no percentage limit; if necessary, even 100 percent could be reserved.
A 68 percent reservation is far too much and amounts to a fraud on Article 15(4); any such provision must be reasonable and balanced.	The classification was welfare-based, not caste-based; its main purpose was social upliftment and equal opportunity for backward people.

Judgment (held)

• Technical arguments rejected: a special provision under Article 15(4) can be made through an executive order. Neither a separate declaration by the President nor a commission under Article 340 is necessary.
• Main questions decided for the petitioners: the Mysore government's order was unconstitutional because it misused the power under Article 15(4).
• The Court called it a fraud on the Constitution: a use of constitutional power that looks valid on the surface but actually works against its purpose.

Principle / ratio

1. Caste cannot be the sole test of backwardness

• Caste can be a relevant factor, but to decide backwardness, factors such as poverty, occupation, place of residence and education must also be considered.
• Backwardness means social and educational disadvantage, not merely a caste label.

2. Reservation must stay within reasonable limits

• Broadly speaking, reservation should be less than 50 percent. A 68 percent reservation was excessive and violated equality.
• A balance is necessary, so that backward classes get an opportunity yet merit is not completely sacrificed.

3. Division into backward and more backward

• The purpose of Article 15(4) is to help those who are genuinely backward. If a very large part of a State's population is declared backward, the very meaning of equal opportunity is lost.
• By the method used in the order, almost 90 percent of the State's population had been treated as backward.
• Only classes considerably below the State average fall within the scope of the clause.
• So, at that time, the division into backward and more backward was not held to be justified.
• Later development: in 1992, Indra Sawhney held that sub-classifying backward classes into backward and more backward is permitted. On this point, the Balaji view was later changed.

Doctrinal change: exception or facet of equality

Balaji (1962)	State of Kerala v. N. M. Thomas (1975) and Indra Sawhney
Article 15(4) read as an exception to Article 15(1), to be applied narrowly.	Such provisions are not exceptions to equality but are themselves an aspect of equality; thinking shifted towards substantive equality.

Significance

• It became the basis for India's reservation ceiling rule; the reference to the 50 percent limit began with this judgment.
• Class does not mean caste. A holistic (comprehensive) approach must be adopted to decide backwardness, looking at caste, occupation, poverty and education together.
• A milestone showing how affirmative action can be applied in a balanced and constitutional way.

Exam points

Case 46: Shayara Bano v. Union of India (2017)

▶ Watch this part of the lecture (6:47:30)

Continuing the story of Muslim women's rights that began with Shah Bano, Shayara Bano is the historic case in which the Supreme Court, by a majority of 3:2, set aside (struck down) instant triple talaq. Two of the judges went further and called it clearly unconstitutional. The judgment opened a new chapter for the rights of Muslim women.

• Bench: five-judge Constitution Bench: Chief Justice J. S. Khehar, Justice Kurian Joseph, Justice R. F. Nariman, Justice U. U. Lalit and Justice S. Abdul Nazeer. The five judges came from five different religions.
• Date of decision: 22 August 2017.

Facts

• Shayara Bano, a Muslim woman from Kashipur in Uttarakhand, was married to Rizwan Ahmed.
• In 2015 her husband gave her talaq-e-biddat: an instant and permanent divorce by pronouncing talaq three times (talaq, talaq, talaq) in one sitting.
• The talaq was sent through a talaqnama (written deed) dated 10 October 2015, which stated that the talaq had been given before two witnesses.
• In 2016 she filed a petition in the Supreme Court claiming this talaq was illegal and unconstitutional, arguing that even if the practice found recognition under Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, it still violated fundamental rights.

Issue

Was the practice of triple talaq (talaq-e-biddat) valid under the Constitution, or did it violate fundamental rights?

Arguments

Petitioner

1. Triple talaq is not even part of the Shariat; the Quran and the teachings of Prophet Muhammad do not permit this kind of talaq.
2. The Shariat Act of 1937 cannot make talaq-e-biddat a rule of decision, because no practice that goes against the Quran can be valid.
3. Triple talaq violates fundamental rights, especially Article 14 (equality), Article 15 (protection from discrimination) and Article 21 (life with dignity).
4. The practice cannot claim the protection of Article 25, because Article 25 is itself subject to public order, morality and health, and the practice goes against the dignity of women.
5. Many Muslim countries, such as Egypt, Pakistan and Bangladesh, have abolished or regulated triple talaq; if Muslim countries have rejected it, it cannot remain valid in India.

The Union of India itself took the side of the petitioner, arguing that instant triple talaq goes against gender equality.

All India Muslim Personal Law Board (defending the practice)

• Religious practices must be understood within the context of the community. Triple talaq is a practice followed by Sunni Muslims of the Hanafi school.
• Personal law is not State action, so Articles 14, 15 and 21 do not directly apply to it. This rested on Narasu Appa Mali (1951), where the Bombay High Court held that personal laws are not "laws in force" within the meaning of Article 13.
• Sensitive issues such as triple talaq fall within the domain of Parliament; the judiciary should not interfere.
• Talaq-e-biddat is an accepted practice which, even if regarded as sinful in theology, has continued for 1,400 years and should be treated as part of religious faith.

Judgment (held)

Even within the majority there were two different lines of reasoning.

Justice Kurian Joseph: not an essential religious practice

• Triple talaq is not an essential practice of religion. A practice does not become valid simply because it has continued for 1,400 years.
• The Quran does not permit triple talaq, because it speaks of attempting reconciliation before a talaq.
• The very purpose of the Shariat Act of 1937 was to do away with customs contrary to the Quran. A practice against the Quran gets neither the support of the Shariat Act nor the protection of the Constitution.
• In Shamim Ara (2002) the Court had already held that such a talaq does not stand in law, because it goes against Quranic principles. He was restating that position of law.
• Famous line: "What is bad in theology is bad in law."

Justice R. F. Nariman and Justice U. U. Lalit: Article 14

• The Shariat Act of 1937 is a statute, and triple talaq gets its recognition through it. So it is law within the meaning of Article 13 and can be tested against fundamental rights. In this way they sidestepped the Narasu Appa Mali question and examined the practice directly.
• Triple talaq is arbitrary: a man can leave his wife without any reason and without any attempt at reconciliation, merely by pronouncing talaq three times. It is impulsive (done in a fit of passion) and unfair.
• Applying the doctrine of manifest arbitrariness (a law that is clearly arbitrary violates Article 14), Section 2 of the Shariat Act was void to the extent it recognised triple talaq.
• They too referred to Shamim Ara (2002), which held that a reasonable cause and an attempt at reconciliation are necessary for a valid talaq.
• They rested the decision only on manifest arbitrariness under Article 14 and did not think it necessary to go into the discrimination argument.

Dissent: Chief Justice Khehar and Justice Abdul Nazeer

• The practice is part of Sunni personal law and is protected under Article 25; the court should not interfere.
• They asked Parliament to enact a law and, until then, by way of injunction, restrained Muslim husbands from pronouncing talaq-e-biddat for six months.
• Since this was only the minority opinion, the restriction did not come into effect.

Final verdict

By 3:2 (Justice Kurian Joseph, Justice Nariman and Justice Lalit), talaq-e-biddat was held invalid and set aside.

Opinion	Approach	Result
Justice Kurian Joseph	Looked at what the core religious texts actually say (essential religious practices)	Not essential; bad in theology is bad in law
Justice Nariman and Justice Lalit	Tested the practice directly against Article 14 (manifest arbitrariness)	Section 2 of the Shariat Act void to the extent it recognises triple talaq
Chief Justice Khehar and Justice Nazeer (dissent)	Personal law practices, even if some find them wrong, are protected by Article 25; change must come through the legislature	Six-month injunction and call for legislation (not operative)

These same three approaches appear again later in the major Sabarimala reference.

Aftermath and significance

• In 2019 Parliament passed the Muslim Women (Protection of Rights on Marriage) Act, 2019, which:
  • declares talaq-e-biddat void and illegal;
  • makes it a criminal offence punishable with imprisonment of up to three years, along with a fine;
  • provides for a subsistence allowance (maintenance) for the wife and for the custody of minor children.
• The validity of this Act has itself been challenged in the Supreme Court.
• The decision concerned only talaq-e-biddat. Other methods, such as talaq-e-ahsan and talaq-e-hasan, which allow time and an opportunity for reconciliation, were not the subject of the decision.
• The case carried forward the debate on the essential religious practices test.
• Shayara Bano was an ordinary woman whose petition set off an entire legal change. The Court made it clear that a practice does not become valid merely because it has continued for centuries.
• It is regarded as a major victory for the dignity and equality of Muslim women.

Exam points

Case 47: Hussainara Khatoon v. State of Bihar (1979)

▶ Watch this part of the lecture (6:56:33)

Hussainara Khatoon began among lives forgotten in jail cells and shook the entire Indian legal system. It is described as not just a judgment but a movement. It established that speedy trial (a prompt trial) is also a fundamental right.

• It is not a single decision but a series of orders given in 1979, most of them by benches led by Justice P. N. Bhagwati.

Background

• In the 1970s, thousands of undertrial prisoners were locked up in the jails of Bihar.
• An undertrial is a person whose trial has either not begun or has not been completed, that is, someone not yet proven guilty.
• Their trials had not even started, yet they had been in jail for years.
• Many had already spent more time in jail without trial than the maximum punishment for the offences they were accused of.
• Many were accused only of minor offences, and many were in jail simply because they could not arrange the money or surety needed for bail.
• This by itself was a violation of Article 21, the right to life and personal liberty.

How the case reached the Court

• The reality came to light in early 1979 through articles in the Indian Express written by K. F. Rustomji, a member of the National Police Commission.
• Based on these reports, advocate and human rights activist Kapila Hingorani, often called the mother of public interest litigation in India, filed a habeas corpus petition in the Supreme Court.
• Petitioners: Hussainara Khatoon, herself an undertrial woman prisoner, along with other prisoners. Respondent: the Home Secretary of the Bihar government, that is, the State of Bihar.
• This was the period when the Supreme Court began relaxing the old rules of locus standi to open the doors of the court to the poor (also seen in S. P. Gupta).

Issues

The central question was why undertrial prisoners in Bihar were kept in jail for such long periods without trial. Their detention was not merely unfair but unconstitutional: Article 21 states that no person can be deprived of life and liberty except according to procedure established by law, and after Maneka Gandhi (1978) that procedure must be fair, just and reasonable. Indefinite detention without trial was not fair in any sense.

1. Illegal detention and violation of Article 21: why were undertrials kept in jail, without trial, for longer than the maximum punishment for the alleged offence?
2. Failure of the Bihar government: keeping prisoners in custody even after the fixed legal time limits had passed. The Court's attention was drawn to Section 468 of the CrPC, now Section 514 of the B.N.S.S., which fixes a limitation period for taking cognizance of offences punishable with up to three years. Once that time has passed, the court cannot take cognizance and the trial cannot proceed at all.
3. Time limit for investigation and charge sheet: why was there so much delay in completing investigation and filing the final report, and should a reasonable time limit be fixed?
4. Free legal aid: is it the State's duty to provide free legal assistance to poor prisoners? The Court answered clearly, yes, because without a lawyer, justice is denied.

Constitutional provisions involved

Article 21

• The backbone of the case.
• Article 21 does not mean mere physical existence; it also means a fair, just and reasonable procedure, and speedy trial is part of exactly that.
• A procedure that keeps someone in jail for years without trial cannot be called reasonable, fair or just.

Article 39A

• A Directive Principle added by the Forty-second Amendment in 1976.
• The State must ensure that no one is denied justice because of poverty or any other disability, and must provide free legal aid for this purpose.
• Free legal service is an essential part of a reasonable, fair and just procedure; it is the State's constitutional duty to provide a lawyer to any accused who cannot afford one because of poverty.

The bail system

• Bail was then often granted on monetary surety: whoever had money stayed out, and the poor stayed in.
• The Court said this system discriminates against the poor, and wherever appropriate a person should be released on a personal bond, that is, on their word alone, without any monetary surety.

Judgment: the Court's directions

1. Immediate release of prisoners: undertrials who had already spent more time in jail than the maximum punishment for their alleged offence were to be released immediately. A large number of prisoners were released. By its order of 26 February 1979, the Court also directed the Bihar government to examine the cases of undertrials whose trial could not proceed at all because the limitation period under Section 468 had expired, and to release them.
2. Right to free legal aid: free legal aid is part of Article 21; the State must ensure that poor prisoners also have legal representation.
3. Right to speedy trial: speedy trial is an integral part of Article 21, and undue delay in a trial violates fundamental rights.
4. Responsibilities of the State: the Bihar government and the judiciary were told to reduce the burden of pending cases and to prepare a list of all prisoners held in illegal detention.
5. National legal services programme: the Court recommended a comprehensive legal aid system across the country, so that justice would reach the poor and the marginalised.

Process: an early example of continuing mandamus

• The Court did not merely lay down principles. It held hearing after hearing, called for lists of undertrials from the Bihar government, obtained reports on their condition and monitored compliance with its orders.
• This is regarded as an early example of an active judicial role of the kind seen in continuing mandamus, where the court does not stop after passing an order but keeps watch over the matter until it is complied with.

Aftermath and significance

• The thinking on legal aid later led to the Legal Services Authorities Act, 1987, under which institutions such as N.A.L.S.A. were set up (the same N.A.L.S.A. on whose petition the transgender judgment was delivered).
• To prevent long detention of undertrials, Section 436A was added to the CrPC in 2005.
• Section 479 of the B.N.S.S. has extended this protection further for first-time offenders.
• The case linked three major rights to Article 21: speedy trial, free legal aid, and humane bail for the poor. It showed that the reach of the Constitution must extend even behind the walls of a jail.

Provision	Release on bond after	Excluded offences
Section 436A, CrPC (added 2005)	Half the maximum punishment for the offence spent in jail (release on personal bond)	Offences carrying the death penalty
Section 479, B.N.S.S.	First-time offender: one-third of the maximum punishment; other cases: half	Offences carrying death or life imprisonment

Exam points

Case 48: M.C. Mehta v. State of Tamil Nadu (1996)

▶ Watch this part of the lecture (7:05:18)

M.C. Mehta v. State of Tamil Nadu is the landmark case in which the Supreme Court took a very strict stand on child labour. The Court made it clear that employing children in factories or hazardous industries violates their fundamental right under Article 24, and it gave detailed directions for their rehabilitation and education. Stopping child labour is therefore not merely a matter of policy; it is a question of protecting fundamental rights.

Bench and date

• Justice Kuldip Singh, Justice B.L. Hansaria and Justice S.B. Majmudar.
• Decided on 10 December 1996.

Parties

• Petitioner: M.C. Mehta, a well-known advocate known for public interest litigation on environmental and social issues. Many historic cases, from Ganga pollution to the air of Delhi, are linked to his name.
• Respondent: State of Tamil Nadu.

Facts

• The main issue was child labour, especially in the matchstick and fireworks factories of the Sivakasi area in Tamil Nadu.
• Very young children worked there in dangerous conditions. Working amid inflammable chemicals put their health at risk, accidents happened, and the children were also exploited.
• Poverty forced families to send their children to work.
• Laws existed but were not properly implemented.
• For this reason, M.C. Mehta filed a public interest petition under Article 32.

The Supreme Court took the case very seriously. It said that this was not merely a problem of Sivakasi or Tamil Nadu; child labour was a major issue across the entire country. The Court appointed a committee for ground-level investigation and said that a national plan was necessary to end child labour. It thus treated child labour as a national issue, not a local one.

Arguments

Petitioner

1. Violation of Article 24: employing children below 14 years of age in hazardous industries is illegal.
2. Article 21: the right to life means the right to live with dignity, and child labour destroys the dignity of children.
3. Deprivation of education: children deprived of education are trapped in a lifelong cycle of poverty and exploitation.
4. International obligations: India accepted international agreements on children's rights, such as the United Nations Convention on the Rights of the Child, in 1992, but their implementation remains weak.
5. Failure of the State: the State was not properly implementing even its own laws.

Industry associations

The associations of the match industry and the fireworks manufacturers of Sivakasi filed objections against the Committee's recommendations. The Court said that these objections contained nothing but general statements and amounted merely to a denial of the Committee's findings.

Issues

1. Does employing children in hazardous industries violate the Constitution and the law?
2. If it does, what remedies and measures should be adopted so that child labour can be ended while keeping a balance with the economic condition of the families involved?

Relevant provisions

• Article 24: no child below 14 years of age shall be employed in any factory, mine or any other hazardous employment. This is a fundamental right.
• Article 21: life with dignity, which also includes education and health.
• Article 39(e) and (f): Directive Principles. The tender age of children must not be abused, and children must not be forced by economic necessity into work unsuited to their age. Childhood must be protected from exploitation.
• Child Labour Prohibition and Regulation Act, 1986: bans child labour in hazardous jobs.

Judgment and directions

The Court gave a landmark ruling with clear, step-by-step directions.

1. Survey and withdrawal: State governments were ordered to conduct a survey within six months and identify children working in hazardous industries, so that they could be withdrawn from that work and arrangements made for their education.
2. Rehabilitation fund: any employer who illegally employs a child must pay compensation of Rs. 20,000 for every such child. This amount goes into the Child Labour Rehabilitation-cum-Welfare Fund and is used for the education and welfare of children.
3. Adult employment: an attempt is to be made to give alternative employment to an adult from the family from which the child was withdrawn, so that the family's income is maintained. If such employment is not possible, the State must deposit Rs. 5,000 into the same fund for every such child. In this way a corpus of Rs. 25,000 is created in the name of every child, and the interest income is given to that family for as long as the child continues going to school.
4. Education: it is the State's responsibility to provide free and compulsory education to children. Where children are engaged in non-hazardous work, their working hours should be limited, and arrangements should be made, at the employer's cost, for at least two hours of education for them every day.

Source	Amount per child	Paid into
Offending employer (compensation)	Rs. 20,000	Child Labour Rehabilitation-cum-Welfare Fund
State (where adult employment cannot be given)	Rs. 5,000	Same fund
Total corpus	Rs. 25,000	Interest paid to the family while the child attends school

Principle and special feature

The Court did not merely say that child labour is wrong. It recognised that poverty is the root cause and connected three things together: the family's income, the child's education and the employer's responsibility. It combined punishment with rehabilitation.

Significance

• A turning point for child labour law in India. It created awareness that child labour is not merely an economic issue but a direct violation of fundamental rights.
• After the judgment, the laws became stronger. The 86th Amendment of 2002 added Article 21A, making education a fundamental right for children between 6 and 14 years of age. It has been in force since 1 April 2010.
• In 2016 the child labour law was substantially changed and renamed the Child and Adolescent Labour Prohibition and Regulation Act. Employing children below 14 years in almost any occupation is now prohibited, except for a few limited exceptions such as helping in the family's work after school. Adolescents between 14 and 18 years cannot be engaged in hazardous jobs.
• The case shows that the role of the judiciary is not merely to interpret the law but also to protect vulnerable groups such as children. It became a strong foundation for India's fight against child labour.

Exam points

Case 49: Indian Young Lawyers Association v. State of Kerala (2018)

▶ Watch this part of the lecture (7:13:01)

Known as the Sabarimala temple case, this is one of the most difficult debates between faith and equality. It raised questions such as: can the tradition of a temple outweigh constitutional rights; is simply being a woman some kind of spiritual shortcoming; and can faith and equality walk together? On one side stood the age-old faith of the Hindu religion, on the other the constitutional rights of women. The case became more than a legal battle; it turned into a social movement in which the Court became the battlefield for a clash between religion and justice, specifically between the entry of women and religious freedom.

Forum, bench and date

• Writ petition filed in the Supreme Court under Article 32.
• Decided on 28 September 2018 by a five-judge Constitution Bench, by a majority of 4:1.
• Bench: Chief Justice Dipak Misra, Justice A.M. Khanwilkar, Justice R.F. Nariman, Justice D.Y. Chandrachud and Justice Indu Malhotra.

Facts

• Sabarimala is an ancient Hindu temple in Kerala where Lord Ayyappa is worshipped. The belief is that Lord Ayyappa is a naishtika brahmachari, an eternal celibate who has taken a vow of lifelong celibacy.
• Under the temple's tradition and customs, women between 10 and 50 years of age, the age group in which menstruation generally occurs, were prohibited from entering.
• This tradition was supported by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.
• In 1991 the Kerala High Court had upheld this restriction as valid.
• The petitioners argued that women aged 10 to 50 were being denied entry purely on the basis of tradition, and that this gender-based restriction violated fundamental rights and was unconstitutional.
• They argued that the rule went against Articles 14, 15 and 25, and against Article 51A(e), the fundamental duty to renounce practices derogatory to the dignity of women.
• The argument based on Article 17 (untouchability) was raised by an intervenor.

Provisions challenged or discussed

• Article 14: equality before law.
• Article 15: ban on discrimination on the basis of sex.
• Article 17: abolition of untouchability.
• Article 25: freedom of religion.
• Article 26: rights of religious denominations.
• Rule 3(b) of the 1965 Rules.
• Section 3 of the 1965 Act: Hindu places of public worship shall be open to all classes and sections of Hindus.

Issues

1. Was this exclusion, based on biological reasons, discrimination against women, and did it violate Articles 14, 15 and 17?
2. Was the tradition an essential religious practice entitled to the protection of Article 25?
3. Were the devotees of Sabarimala a separate religious denomination entitled to the rights under Article 26?
4. Did Rule 3 permit a religious denomination to ban the entry of women between 10 and 50 years, and if so, did that violate Articles 14 and 15?
5. Was Rule 3(b) itself ultra vires the 1965 Act, and did it violate the fundamental rights in Part III?

Arguments

Petitioners (the side representing women)

• The devotees of Sabarimala were not a separate religious denomination. The devotees of Ayyappa were simply Hindus, with no separate name or separate doctrine, so Article 26 did not apply.
• The temple was administered by the Travancore Devaswom Board, a statutory body, so the temple fell within Article 12 and Articles 14 and 15 applied to it.
• A religious practice that discriminates against women cannot be treated as an essential religious practice. Keeping women out of the temple is not part of worship, and the Hindu religion generally does not allow such discrimination.
• However old a tradition may be, if it goes against the basic values of the Constitution, it cannot be allowed to continue.
• The tradition is said to be connected to celibacy, but not every pilgrim takes that vow, and the presence of women does not destroy the vow.
• Regulation might be permissible, but a complete ban is not constitutional.

Temple's side

• The tradition had continued since ancient times.
• Article 25(2)(b) did not apply at all, because this was not a complete ban but a limited restriction.
• Entry of women aged 10 to 50 was prohibited because Lord Ayyappa is a naishtika brahmachari.
• Pilgrims must observe a 41-day vratham (a strict vow), and women in this age group could not, for biological reasons, complete that vow. The restriction was therefore justified.
• It was not discrimination but a spiritual discipline meant to protect the deity's vow of celibacy.
• A devaprasnam (a traditional astrological query) held at the temple had indicated that the deity did not wish for the presence of young women.
• The restriction did not apply to all women; it was limited to one age group.

Judgment: majority analysis

1. Not a separate religious denomination: the devotees of Ayyappa were simply Hindus, with no separate name, organisation or doctrine, so Article 26 did not protect them. Sabarimala is a public place of worship managed by the Travancore Devaswom Board, so Article 25(1), which gives every person the right freely to profess, practise and propagate religion, applied against the temple board. Women too are Hindus, so they could not be denied entry.
2. Scope of Article 25(1): the right belongs to all persons, men or women. No one can be denied the right to worship in a temple on the basis of gender. The right also protects intra-faith equality, meaning equal rights for everyone within the same religion.
3. Meaning of morality: the right under Article 25 is subject to public order, morality and health. "Morality" here means constitutional morality, not the morality of any tradition or religious view. Constitutional morality stands above social and religious morality.
4. Not an essential religious practice: no religious scripture or text was produced to prove that the ban on women was a core part of the Hindu religion. Women had in fact visited the temple before, for example for ceremonies such as a child's Annaprashan (first feeding ceremony). The tradition had not been uniform and continuous, so it could not be an essential practice.
5. Rule 3(b) invalid: Chief Justice Misra held that it violated women's right under Article 25(1); Justice Nariman held that it also violated Article 15(1). It was also ultra vires Section 3 of the 1965 Act, which clearly states that places of public worship are open to all classes of Hindus, and this includes all genders.
6. Article 17 view: Justice Chandrachud, in his concurring opinion, held that excluding women on the basis of menstruation amounted to a form of untouchability, prohibited under Article 17.

Dissent: Justice Indu Malhotra

Her dissent set off a fresh debate across the country.

• Article 25 protects the rights of individuals; Article 26 protects the rights of denominations. The equality rule of Article 14 cannot override religious freedom.
• The respondents had made out a plausible case that the worshippers of Lord Ayyappa were a separate religious denomination. This mixed question of fact and law ought to be decided by a civil court.
• Even if a tradition appears irrational or outdated, if it is part of a faith the court should not interfere, because a test of rationality cannot be applied to religious matters.
• The entry ban was not untouchability, so Article 17 did not apply.
• Rule 3(b) was valid, because the 1965 Act also gives religious denominations the right to manage their own religious affairs.

Final conclusion of the majority

• Sabarimala is a public religious institution.
• The exclusion of women violates their right to worship under Article 25(1).
• Rule 3(b) of the 1965 Rules is unconstitutional.
• Denying entry to women between 10 and 50 years of age is illegal.
• Constitutional morality is supreme.

Review and reference to a larger bench

• After the judgment, large-scale protests broke out in Kerala and review petitions were filed.
• On 14 November 2019 a five-judge bench, by a majority of 3:2, kept the review petitions pending and referred major questions on religion and fundamental rights to a larger bench.
• The referred questions included the scope of the essential religious practices test and the relationship between Articles 25 and 26. They also covered issues connected to other religions, such as the entry of women into mosques and the entry into fire temples of Parsi women who marry outside their religion.
• No stay was placed on the 2018 judgment.
• In February 2020 a nine-judge bench held that the reference was maintainable and framed the questions.
• The nine-judge bench of Chief Justice Surya Kant completed hearings in April and May 2026 and reserved judgment on 14 May 2026; the judgment is still awaited.

Article 25(2)(b): the deeper layer

Article 25(2)(b) gives the State the power to make laws throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.

Majority	Minority
Read Article 25(2)(b) as a constitutional commitment to social reform.	The clause only gives the State the power to make laws, not the court the power to intervene. The 1965 Act made under this clause itself protects the rights of denominations.

This tension is the biggest question before the nine-judge bench.

Significance and exam points

The case shows how delicate the balance between faith and equality can be.

Case 50: Maneka Gandhi v. Union of India (1978)

▶ Watch this part of the lecture (7:25:23)

This case is recalled again and again across the landmark cases, from Gopalan to Selvi and Puttaswamy. It gave Article 21 a new birth.

Maneka Gandhi completely changed the interpretation of Article 21. Earlier, following A.K. Gopalan, "procedure established by law" was understood as only a technical process. Maneka Gandhi held that the procedure must be fair, just and reasonable.

Bench and date

• Decided on 25 January 1978 by a seven-judge bench.
• Bench: Chief Justice M.H. Beg, Justice Y.V. Chandrachud, Justice P.N. Bhagwati, Justice V.R. Krishna Iyer, Justice N.L. Untwalia, Justice S. Murtaza Fazal Ali and Justice P.S. Kailasam.

Facts

• Maneka Gandhi was a journalist who had been issued a passport under the Passports Act, 1967.
• After the Emergency, the Janata Party government came to power.
• On 2 July 1977 the Regional Passport Officer sent her a letter, received on 4 July, stating that her passport was being impounded in the public interest under Section 10(3)(c) and directing her to surrender it within seven days.
• When she asked for the reason, the government said only that it was in the interest of the general public and refused to give any reason.
• It later emerged from an affidavit filed in court that the government believed she might be needed before the Commission of Inquiry of Justice J.C. Shah, which was inquiring into the excesses of the Emergency.
• She filed a petition directly in the Supreme Court under Article 32, alleging violation of equality under Article 14, the freedoms under Article 19 and personal liberty under Article 21.

Issues

1. Could Articles 21, 19 and 14 be interpreted together?
2. Was the procedure laid down in the Passports Act reasonable?
3. Was the right to travel abroad part of Article 21?
4. Did "procedure established by law" mean merely following a law, or did it also include natural justice? If a law was itself unfair, could it still be valid?
5. Did impounding a passport without a hearing violate natural justice?
6. Was Section 10(3)(c) of the Passports Act valid or unconstitutional?

Arguments

Petitioner (Maneka Gandhi)

• The right to travel abroad is part of personal liberty, as the Supreme Court had already accepted in 1967 in the Satwant Singh Sawhney case.
• Under Article 21, a person can be deprived of life and personal liberty only according to procedure established by law. Taking away a passport without reasons and without a hearing violated Article 21.
• The Passports Act laid down no detailed procedure for impounding a passport, so the law itself was arbitrary.
• The procedure under Article 21 must be fair and just, not a mere technical formality.
• Articles 14, 19 and 21 must be read together; they are not separate but support one another.
• Seizing a passport without a hearing violated audi alteram partem, the basic principle of natural justice.

Government

• The right to travel abroad was not covered by Article 19, so no question of violating Article 19 arose.
• Impounding was in the public interest, and under Section 10(5) the government could refuse to furnish a copy of the reasons in the interest of the general public.
• Section 10(3)(c) was a proper legal provision clearly allowing impounding in the interest of the general public, so the step was taken in accordance with procedure.
• On natural justice, the Attorney General's limited argument was that if notice were given before impounding, the holder could leave the country on that very passport, defeating the purpose of impounding.
• Misuse in a particular case could be met by striking down that order; it did not make the law itself unconstitutional.
• On Article 21, the Attorney General himself conceded that no law could prescribe a procedure that was arbitrary, oppressive or unjust.

Judgment: majority opinion of Justice P.N. Bhagwati

This judgment transformed the interpretation of the Indian Constitution.

1. Personal liberty: personal liberty under Article 21 does not mean only physical freedom. Its scope is very wide and includes many rights, including the right to travel abroad.
2. Articles 14, 19 and 21 operate together: they are not separate, watertight compartments. A law that follows the procedure under Article 21 but violates Article 14 or Article 19 can still be unconstitutional. R.C. Cooper (1970) had already rejected Gopalan's compartmentalisation theory for the other Articles; Maneka Gandhi carried this thinking through to Article 21.
3. Procedure must be fair, just and reasonable: "procedure established by law" does not mean that any law whatsoever will do. The procedure must be just, fair and non-arbitrary; an unfair procedure violates Article 21. Merely having a law is not enough; the law must also be reasonable. This connects with Article 14, because after E.P. Royappa (1973) it was settled that arbitrariness is the enemy of equality, so an arbitrary procedure also violates Article 14.
4. Natural justice is a necessary part of law: whenever someone's rights are affected, natural justice must be given, and audi alteram partem (hear the other side) is its basic rule. In an urgent matter the passport authority may impound without a prior hearing, but must give the affected person a fair opportunity of hearing immediately afterwards. This is a post-decisional hearing, a hearing given after the decision is taken. It is implied in the procedure of the Passports Act: though not written, it will be read in, and for this reason the Act is not unconstitutional.
5. Section 10(3)(c) is not arbitrary: it contains sufficient safeguards. Under Section 10(5), reasons must be recorded in writing and a copy given on request; a copy can be withheld only where furnishing it would be against the sovereignty, security or foreign relations of India, or against the interest of the general public. An appeal lies against the order, except where the order is made by the Central Government itself. Any misuse can be met by the court striking down that order. The section is valid in itself, though every order will be examined separately.

Concurring opinion: Justice V.R. Krishna Iyer

• The procedure under Article 21 cannot simply be any law at all; it must be fair. A law that is arbitrary, fanciful or irrational will not survive the test of Article 21.
• Stressing procedural safeguards, he wrote that procedural safeguards are the essential substance of liberty, and that the history of personal liberty is, to a great extent, the history of procedural safeguards. Liberty means nothing without fair procedure.

Minority view: Justice P.S. Kailasam

• The freedoms under Article 19 do not apply outside the territory of India, so the right to travel abroad does not fall within Article 19.
• If the Passports Act had been followed, the procedure was valid and satisfied Article 21.
• The legislature can exclude the right to a hearing by an express provision. In urgent cases a passport can be impounded without notice, but the holder must be given a hearing before the final order.
• One must look at the pith and substance of the law; unless it directly violates fundamental rights, a law cannot be held invalid.

Final verdict

• Impounding Maneka Gandhi's passport without a hearing was unfair; the government broke the rule of audi alteram partem.
• The Passports Act was valid, but it carried an implied right to a hearing, and a passport could not be impounded without giving reasons.
• Articles 14, 19 and 21 must be interpreted together, not separately.
• The Court did not formally quash the impounding order. The Attorney General assured the Court that the government would give Maneka Gandhi a full opportunity of hearing and would consider what she had to say, and the Court disposed of the matter on this basis.

Significance

• It gave Article 21 a revolutionary meaning: procedure established by law was earlier a mere formality; now the procedure must be fair, just and reasonable.
• Many say that the spirit of due process, which the Constituent Assembly had deliberately left out, entered the Indian Constitution through the back door.
• The link between Articles 14, 19 and 21 later became famous as the golden triangle, a phrase also met earlier in Minerva Mills.
• It launched a new era of constitutional jurisprudence in which fundamental rights are read in the context of one another.
• After Maneka Gandhi, a whole series of rights was read into Article 21: speedy trial and free legal aid (Hussainara Khatoon), dignity along with life (Francis Coralie Mullin), the right to livelihood, the right to one's daily bread (Olga Tellis), mental privacy (Selvi) and privacy (Puttaswamy). The list is very long.

Gopalan v. Maneka Gandhi: comparison

This comparison is asked most often in examinations.

Point	A.K. Gopalan (1950)	Maneka Gandhi (1978)
Relationship of fundamental rights	Separate, watertight compartments	Connected to one another
"Procedure established by law"	Only a law made by the State	A fair, just and reasonable procedure
Natural justice	No place for natural justice	Audi alteram partem a necessary part of procedure

Exam points

Case 51: S.R. Bommai v. Union of India (1994)

▶ Watch this part of the lecture (7:37:24)

S.R. Bommai v. Union of India (1994) is a landmark Supreme Court decision on India's federal structure, judicial review and the misuse of Article 356. Although it arose from a political crisis in Karnataka, it became a constitutional guideline for the whole country. It answers three questions: when President's Rule can be imposed, how it can be imposed, and whether the courts can review it. It is closely linked to Rameshwar Prasad.

• Date of decision: 11 March 1994.
• Bench: nine-judge Constitution Bench.
• Opinions: six separate opinions.

Background

• Under Article 356, if the President is satisfied, on a Governor's report or otherwise, that the government of a State cannot be carried on in accordance with the Constitution, the President may impose President's Rule in that State.
• By the time of the Bommai decision, Article 356 had already been used more than 90 times, mostly against governments run by opposition parties.
• In the State of Rajasthan case (1977), the Court had largely avoided interfering in such matters.
• The Sarkaria Commission (1988) had also expressed concern about this misuse.

Facts

• S.R. Bommai was the Chief Minister of Karnataka, heading a Janata Dal government, from August 1988 to April 1989.
• On 19 April 1989, the Governor reported to the President that 19 MLAs had withdrawn their support from the government, 17 of them from the ruling Janata Dal itself, and that Bommai could no longer prove a majority. On this basis President's Rule was recommended under Article 356.
• Bommai asked for a chance to prove his majority through a floor test in the Assembly.
• Before the Assembly could be summoned, President's Rule was imposed on 21 April 1989 on the basis of the Governor's reports, and the Assembly was dissolved.
• Bommai's writ petition in the Karnataka High Court under Article 226 was dismissed.
• The Supreme Court heard the matter together with similar cases from five other States: Meghalaya, Nagaland, Madhya Pradesh, Rajasthan and Himachal Pradesh.

Relevant constitutional and statutory provisions

Provision	Content
Article 356	President's Rule.
Article 74(1)	The President acts on the advice of the Council of Ministers.
Article 74(2)	No court can inquire into what advice the ministers gave the President.
Section 123, Indian Evidence Act (now Section 129, B.S.A.)	Exempts unpublished official records from disclosure.
Section 123(3), Representation of the People Act	Seeking votes on the ground of religion is a corrupt practice. This became important in the part of the judgment dealing with secularism.

Issues

1. Did the President have concrete material before him to conclude that the government of a State could not be carried on in accordance with the Constitution?
2. Was the President's power under Article 356 unlimited?
3. Was the use of Article 356 open to judicial review, and if so, to what extent?

State-by-State analysis

Karnataka

• The Governor acted in haste and recommended President's Rule without holding a floor test.
• The very next day, 20 April, seven of the 19 MLAs wrote to the Governor that their signatures had been obtained by misleading them and that they still stood with the government.
• Without even meeting them, the Governor assumed these new letters had been written under pressure from the Chief Minister.
• Held: a floor test ought to have been held, because the right place to prove a majority is the floor of the House, not Raj Bhavan. The Governor's report rested on unconfirmed sources without any investigation, and avoiding the floor test was not justified.
• Justice Sawant and Justice Kuldip Singh said this haste on the Governor's part carried a clear hint of mala fides.
• President's Rule in Karnataka was invalid, and the High Court's decision was wrong.

Meghalaya

• The Governor's report contained factual and legal errors and had ignored orders the Supreme Court had earlier passed.
• Justice Sawant and Justice Kuldip Singh called this mala fides of both a factual and a legal kind.
• The Union Council of Ministers had advised the President to issue the Proclamation on the basis of this very material.
• President's Rule in Meghalaya was held invalid, because the Governor had crossed his constitutional limits.

Nagaland

• Thirteen MLAs of the ruling Congress broke away, and the Speaker treated this as a split under the Tenth Schedule.
• Vamuzo then claimed before the Governor the support of 35 out of 59 MLAs. Chief Minister Hokishe Sema had already resigned, yet Vamuzo was not given a chance to demonstrate his strength on the floor of the House.
• The Governor's report noted that at least 11 governments had been formed in the previous 25 years.
• Justice Sawant and Justice Kuldip Singh held that the Tenth Schedule at that time banned defection but recognised a split of one-third of the members, so Vamuzo ought to have been given a floor test and the Nagaland proclamation was unconstitutional.
• Justice Jeevan Reddy, Justice Agrawal and Justice Pandian disposed of the Nagaland appeal only on their opinion regarding Article 74(2), and gave no decision on the validity of that proclamation.
• Result: the majority held the proclamations in Karnataka and Meghalaya unconstitutional, but not the one in Nagaland.
• Fresh elections had already taken place by then, so the governments were not restored.

Madhya Pradesh, Rajasthan and Himachal Pradesh (the secularism question)

• President's Rule was imposed in these States in the context of the demolition of the Babri Masjid on 6 December 1992 and the communal riots that followed.
• All three States had BJP governments. It was placed before the Court that the BJP's election manifesto had promised to build a Ram Mandir at Ayodhya.
• Facts showed that some ministers had openly supported the kar sevaks, that some ministers were said to have links with the RSS, which was banned at that time, and that the riots had caused loss of life and property.
• Held: secularism is a basic feature of the Constitution. If a State government acts against secularism, that can amount to a situation in which the government is not being carried on in accordance with the Constitution, and President's Rule can validly be imposed.
• President's Rule in these three States was held valid.

State	Outcome	Reason
Karnataka	Proclamation invalid	No floor test; report on unconfirmed sources; hint of mala fides
Meghalaya	Proclamation invalid	Factual and legal errors; earlier Supreme Court orders ignored; Governor crossed constitutional limits
Nagaland	Not held unconstitutional by the majority	Sawant and Kuldip Singh JJ. found it unconstitutional, but Jeevan Reddy, Agrawal and Pandian JJ. decided only the Article 74(2) point
Madhya Pradesh, Rajasthan, Himachal Pradesh	Proclamations valid	Action against secularism, a basic feature

Judgment (held): Article 356 subject to judicial review

• The President's satisfaction is not absolute; it is subject to judicial review.
• If there is no objective material behind it, or it rests on irrelevant material, or it is mala fide, the Supreme Court or a High Court can declare the proclamation invalid.
• Article 74(2) protects the advice given by ministers, but the court can look at the material on which that advice was based.
• The privilege under Section 123 (Evidence Act) may apply, but the court will itself decide the claim on its merits.
• A proclamation under Article 356 is therefore not beyond judicial scrutiny.

Principle: guidelines laid down

1. The power under Article 356 is not absolute but conditional, and must be used only as a last resort.
2. The question of majority is decided by a floor test; the right platform is the Assembly, not Raj Bhavan.
3. Under Article 356(3), the President cannot dissolve the Assembly until both Houses of Parliament approve the proclamation; until then the Assembly can only be kept in suspended animation.
4. If a proclamation is found invalid, the court can restore the suspended or dissolved government and Assembly.
5. Use of Article 356 on the basis of non-secular activities can be valid, because secularism is a basic feature.

The Court also held federalism to be a basic feature: the States are not mere appendages of the Centre but have a constitutional existence of their own.

Limits of judicial review

The Court will NOT examine	The Court WILL examine
Whether the material behind the proclamation was sufficient; that assessment is for the President and the Council of Ministers.	Whether any material existed at all; whether the material was relevant; whether the decision rested on mala fides or extraneous reasons.

If serious questions arise, prima facie, about a proclamation, the burden falls on the Union to show that it had relevant material.

Significance

• Democracy is not confined to elections; it also requires the observance of constitutional ethics.
• The judgment protected federalism, defined the role of the Governor, reaffirmed the role of the judiciary and placed a clear brake on the misuse of Article 356.
• After this decision the use of Article 356 reduced considerably.
• Rameshwar Prasad (2006) and Nabam Rebia (2016) carried the same approach forward, and in the Uttarakhand case (2016) the Supreme Court again took the path of a floor test.
• The fall or formation of a State government is decided not by the pen at Raj Bhavan but on the floor of the Assembly.
• The judgment gave Indian democracy a constitutional shield, protecting the rule of law by rising above political motive.

Exam points

Case 52: I.R. Coelho v. State of Tamil Nadu (2007)

▶ Watch this part of the lecture (7:49:14)

I.R. Coelho v. State of Tamil Nadu (2007) is regarded as the decisive case on the clash between the basic structure doctrine and the Ninth Schedule. It opened a door within the shield of the Ninth Schedule, and is closely linked to Waman Rao.

• Date of decision: 11 January 2007.
• Bench: nine-judge Constitution Bench led by Chief Justice Y.K. Sabharwal.
• Decision: unanimous.

Background: Article 31B and the Ninth Schedule

• Article 31B and the Ninth Schedule came in through the First Amendment, 1951.
• Article 31B: any Act placed in the Ninth Schedule will not become void merely on the ground that it conflicts with a fundamental right in Part III.
• Original purpose: to protect land reform laws from judicial obstacles.
• Over time many other kinds of laws were placed in it; today it contains about 284 laws.

Facts

• Tamil Nadu enacted the Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969. The Janmam estates were lands in the Gudalur area of the Nilgiris, including large forest areas. The Act brought these lands, including the forest land, directly under State control.
• In 1972, in the Balmadies Plantations case, the Supreme Court declared the forest-related part of the Act unconstitutional: acquisition of forest land was not agrarian reform, so it could not get the protection of Article 31A.
• In 1974, through the Thirty-fourth Amendment, the entire Act was placed in the Ninth Schedule, giving it protection under Article 31B from challenge based on Part III.
• Similarly, Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 had been struck down as arbitrary by the Calcutta High Court, and the Supreme Court refused to hear the State's appeal. Even so, in 1990, through the Sixty-sixth Amendment, the entire Act was placed in the Ninth Schedule.
• The problem: laws whose parts had already been declared unconstitutional became safe once placed in the Ninth Schedule in their entirety. The petitioners challenged this as a way of shielding unconstitutional laws from judicial review.
• In 1999, a five-judge bench held that the approach in Waman Rao needed reconsideration, and referred the matter to a nine-judge bench.

Issues

1. After the basic structure doctrine arrived in 1973, could Parliament make any law completely immune from fundamental rights simply by placing it in the Ninth Schedule?
2. Could Parliament, by using Article 31B, bypass Part III altogether, and if so, would that not go against the basic structure?

Put simply: if Parliament passed an unconstitutional law and then placed it in the Ninth Schedule, would it automatically become valid, or could the court still check it through judicial review? These questions were directly connected to constitutional supremacy and the system of checks and balances.

Arguments

Petitioners	Government
After 1973, Parliament could not shield any law from Part III merely by placing it in the Ninth Schedule; this would violate the basic structure doctrine.	Article 31B and the Ninth Schedule are a valid constitutional device, meant to remove the effect of judicial decisions or to validate laws retrospectively.
Equality (Article 14), the freedoms (Article 19) and the right to life (Article 21) are part of the basic structure and cannot be removed or ignored.	In Kesavananda Bharati, the Court held that the Constitution can be amended so long as the basic structure is not destroyed; the Ninth Schedule remains valid as long as that structure is preserved.
If Parliament could keep placing unconstitutional laws in the Ninth Schedule, Article 32 (the right to constitutional remedies) would be useless; this bypasses judicial review.	The existence of the judiciary is part of the basic structure, but Parliament can decide the limits of judicial review; the Ninth Schedule is only a limited restriction, not a complete ban.
It is the judiciary's task to see that the essence of the Constitution is not disturbed. If Parliament alone decided validity, the judiciary's role would end and checks and balances would break down.	Article 31B ensures that important welfare laws are not invalidated; it does not mean Parliament will always abuse it.
Any amendment against the basic structure, whether in the Ninth Schedule or elsewhere, must remain open to judicial review.	Parliament ought to be trusted to act in keeping with the spirit of the Constitution.

In short, the petitioners said Parliament was misusing the Ninth Schedule and destroying fundamental rights and judicial review; the government said the Ninth Schedule was a constitutional tool for welfare, and Parliament should have this power as long as the basic structure was not destroyed.

Judgment (held)

• Laws placed in the Ninth Schedule cannot be completely shielded from judicial review if they violate the basic structure.
• Judicial review is part of the basic structure.
• Parliament has the power to amend the Constitution, but it cannot grant any law absolute immunity.
• Every law placed in the Ninth Schedule after 24 April 1973 (the date of the Kesavananda Bharati decision) must pass the test of the basic structure.

Principle / ratio: reasoning

1. Articles 14, 19 and 21, and the principles behind them, are essential parts of the basic structure, recalled by the Court as the golden triangle. They cannot be destroyed by taking shelter under the Ninth Schedule.
2. If Parliament could use the Ninth Schedule in this manner, a controlled Constitution would turn into an uncontrolled one, making Parliament's power unlimited, against the spirit of the Constitution.
3. Parliament can amend fundamental rights, but only to the extent that the basic structure is not destroyed.

The rights test (essence of rights test / effect and impact test)

• Any law in the Ninth Schedule is examined on the basis of its actual effect: does it destroy the essence of fundamental rights and the basic features of the Constitution? If it does, it can be held invalid.
• If the Court has already upheld the validity of a law, it cannot be challenged again.
• If a law was earlier struck down and then placed in the Ninth Schedule after 24 April 1973, it can be challenged on the ground of the basic structure.

In simple words, the Ninth Schedule is not a safe zone. If a law in it violates fundamental rights in a way that harms the basic structure, the court can review it. This placed a clear limit on the power of Parliament.

Conclusion of the Court and impact

• Laws placed in the Ninth Schedule after 1973 are subject to the basic structure test.
• Any law that goes against the principles of Articles 14, 19 and 21 can be held unconstitutional.
• Judicial review cannot be taken away.
• Impact: judicial review was restored, the basic structure doctrine was strengthened, Parliament's power was controlled, a balance between powers was struck, and constitutional supremacy was secured.
• The judgment was a historic turning point: the Supreme Court reminded Parliament that the Constitution is supreme and the basic structure is permanent.

Exam points

Case 53: People's Union for Civil Liberties v. Union of India (1996)

▶ Watch this part of the lecture (7:59:14)

People's Union for Civil Liberties v. Union of India (1996) gave India its landmark guidelines on the right to privacy and phone tapping. It concerns an invisible executive power that reaches into one of the most private things: telephone conversations.

• Date of decision: 18 December 1996 (reported in 1997).
• Bench: Justice Kuldip Singh and Justice S. Saghir Ahmad.
• Decided 21 years before Puttaswamy.

Facts

• Around 1990, a CBI report showed that the phones of several leaders were being tapped, with serious lapses in procedure.
• The tapping was carried out through MTNL (Mahanagar Telephone Nigam Limited) on the instructions of government officials.
• This raised public concern about whether private conversations were safe at all.
• The petitioner, PUCL, a voluntary organisation working to protect citizens' rights, filed a public interest petition under Article 32 challenging Section 5(2) of the Indian Telegraph Act, 1885.

Section 5(2), Indian Telegraph Act, 1885

• Empowered the government, in the event of a public emergency or in the interest of public safety, to intercept messages.
• Grounds: sovereignty and integrity of India; security of the State; friendly relations with foreign States; public order; prevention of incitement to an offence.
• Defect: the procedural safeguards were unclear. It was not settled who would order an interception, for how long, or who would review it, so the risk of misuse was very high.

Issues

1. Was Section 5(2) being misused, and did that amount to a violation of the right to privacy?
2. Was it necessary to read down Section 5(2) and add procedural safeguards to it to prevent arbitrary phone tapping?

Arguments

PUCL (petitioner)	Government
The right to privacy is a fundamental right under Article 19(1) and Article 21.	Striking down Section 5(2) would be dangerous for national security.
To save Section 5(2) from being declared unconstitutional, procedural safeguards had to be added; without them the power could be misused.	Only authorised officers of the Central or State government could order tapping, and reasons were recorded.
Judicial sanction (prior approval of a judge) should be compulsory before any phone tapping, so that a judicial check would remove arbitrariness.	An aggrieved person could make a representation to the government, and appropriate action could be taken.
—	Informing the person beforehand would defeat the purpose of tapping, so secrecy was necessary.

Reasoning

• Kharak Singh (1962): privacy was indirectly recognised; in particular, the minority opinion of Justice Subba Rao treated privacy as part of personal liberty.
• Gobind v. State of Madhya Pradesh (1975): the Court assumed privacy to be a fundamental right, but not absolute; it can be restricted in a compelling public interest.
• The right to privacy is not written explicitly in the Constitution, but it is included within life and personal liberty under Article 21.
• A telephone conversation, often held within the privacy of one's home or office, is an important part of privacy; phone tapping is therefore a serious invasion of privacy.
• Speaking on the phone is part of the freedom of speech and expression under Article 19(1)(a), so any restriction must fall within the reasonable restrictions permitted by Article 19(2).

Two preconditions for Section 5(2)

1. There must be a public emergency or a question of public safety.
2. One of the specified grounds must be present: sovereignty, security of the State, foreign relations, public order, or prevention of an offence.

Public emergency and public safety mean a serious situation relating to the general public, one that a reasonable person could clearly see. But the section contained no procedural safeguards capable of checking arbitrary power.

Judgment (held)

• Section 5(2) was not declared unconstitutional. It set out the grounds clearly, but procedural safeguards were needed to prevent misuse.
• The suggestion of prior judicial approval was rejected: designing such a system was the task of Parliament or the government, not of the court.
• Until rules were framed, the Court laid down interim guidelines of its own.

Principle: the PUCL guidelines

1. Authority: an order for phone tapping can be passed only by the Home Secretary of the Central government or of a State government. In an urgent case, the power can be delegated to an officer not below the rank of Joint Secretary.
2. Necessity check: an order can be passed only after it is established that the necessary information could not reasonably be obtained by any other means.
3. Time limit: an order remains in force for a maximum of two months, renewable up to a total maximum of six months.
4. Maintenance of records: a detailed record of every interception, including the conversation intercepted, the extent to which and to whom it was disclosed, and the number of copies made.
5. Restriction on use: intercepted material may be used only to the minimum extent necessary, and must be destroyed once that need is over.
6. Review committee: committees at the Central and State levels examine whether orders were passed in accordance with the law and whether they were necessary at all. If a committee finds an order wrong, it can set the order aside and have the records destroyed.

Review committee	Members
Centre	Cabinet Secretary, Law Secretary, Telecommunications Secretary
States	Chief Secretary, Law Secretary, and one other member chosen by the State Government (who cannot be the Home Secretary)

Significance and later developments

• The right to privacy got clear judicial backing long before Puttaswamy (2017).
• Checks and balances were introduced into the government's surveillance power; the old Telegraph Act provision was read together with modern safeguards.
• 1999: the Indian Telegraph Rules were amended on the basis of these guidelines.
• 2007: the safeguards took the detailed form of Rule 419A.
• 2009: similar rules were made for interception of computer data under Section 69 of the Information Technology Act.
• The Telegraph Act has now been replaced by the Telecommunications Act, 2023; its Section 20 carries the power of interception, and new interception rules were notified under it in 2024.
• Pegasus spyware controversy (2021): the Supreme Court made it clear that the State cannot get a free pass every time simply by invoking national security, and set up an expert committee.
• PUCL struck a balance between national security and individual privacy, and is still cited on phone tapping and surveillance law.

Exam points

Case 54: Aveek Sarkar v. State of West Bengal (2014)

▶ Watch this part of the lecture (8:08:07)

After PUCL (how far the State may interfere with private conversations), the next question concerns freedom of expression: when can the State say that a photograph or an article is obscene? Aveek Sarkar v. State of West Bengal is the Supreme Court judgment that changed the entire direction of obscenity law in India. It rejected the old Hicklin test and adopted a new, progressive approach. The case shows the balance between freedom of expression and morality.

Bench and date

• Decided on 3 February 2014.
• Bench: Justice K.S. Radhakrishnan and Justice A.K. Sikri.
• Appellants: Aveek Sarkar and others. Respondents: State of West Bengal and others.

Legal provisions involved

• Section 292, IPC: makes it an offence to sell, distribute or publish obscene material. It is now Section 294 of the B.N.S.
• Section 4, Indecent Representation of Women (Prohibition) Act, 1986: bans material containing the indecent representation of women.
• Section 79, IPC: acts done by a person who is justified by law, or who, because of a mistake of fact, believes in good faith that he is justified by law. It is now Section 17 of the B.N.S.
• Section 482, CrPC: inherent power of the High Court to quash baseless criminal proceedings. This power is now in Section 528 of the B.N.S.S.

Facts

• In 1993 a photograph was published first on 5 May in the Sports World magazine, and then on 6 May in the Kolkata newspaper Anandabazar Patrika.
• Aveek Sarkar was the editor of Anandabazar Patrika. The editor of Sports World was former cricket captain Mansur Ali Khan Pataudi; a complaint was filed against him too.
• The photograph was taken from the famous German magazine Stern. It showed tennis player Boris Becker in a nude pose with his fiancee Barbara Feltus, a Black actress, with Becker using his hands to cover his partner's body.
• Its main message was that love rises above the boundaries of colour and race: a statement against the racism then widespread in Germany.
• A Kolkata lawyer filed a complaint under Section 292, IPC, alleging the photograph was obscene and sent the wrong message to Indian society. Criminal proceedings followed.
• The Magistrate refused to drop the proceedings, and the Calcutta High Court refused to quash them. The matter reached the Supreme Court.

Issues

1. Was the photograph obscene under Indian law?
2. Should the Hicklin test still be followed?
3. In deciding obscenity, should the context (such as the social message) be taken into account?
4. Should artistic and journalistic freedom be protected, or should morality be given preference?

Arguments

Appellants (Aveek Sarkar and others)	Complainant / Respondents
The photograph was not obscene; it carried a message against racism.	The photograph was obscene and lascivious.
It promoted love and equality, not lust.	It would corrupt the minds of children and young people.
It was taken from an international magazine (Stern) and published in good faith.	It went against the cultural and moral values of society.
Context matters; seen in context, there is nothing obscene in it.	Before the Supreme Court: good faith and public good are questions of fact, to be settled only by evidence at trial, so the proceedings should not be quashed at this stage.
Obscenity should be judged by the contemporary moral standards of today's community.

In short: freedom of expression and context on one side; morality and the protection of society on the other.

Background: the Hicklin test

• Origin: the English case R v. Hicklin (1868).
• Question asked: whether the material could deprave and corrupt the minds of those open to such immoral influences.
• It measured material against the weakest or most easily influenced mind in society.
• Even a single part of a work, taken in isolation, could be branded obscene.
• In Ranjit D. Udeshi (1964), concerning the novel Lady Chatterley's Lover, the Supreme Court had adopted this very test.

Judgment (held)

• It was wrong to look at a photograph in isolation; its full context, caption and message must be understood.
• The photograph's message was that love triumphs over hatred: love and equality, not lust.
• Justice Radhakrishnan: a photograph of a nude or semi-nude woman is not, by itself, obscene. Obscenity arises only when the effect of the material is such that it is designed to arouse sexual excitement in the viewer and corrupt the mind.
• The Supreme Court rejected the Hicklin test altogether and adopted the community standards test: what an average, reasonable Indian reader today would find acceptable, not what could influence the weakest mind.
• The photograph was held not obscene and the criminal proceedings were quashed, giving strong protection to free speech and editorial independence.

The Court reasoned that obscenity cannot be judged from an isolated part. Instead of picking out one photograph or one line, the purpose, context and social value of the work as a whole must be understood. The photograph was a stand against racism. The law must evolve with society: what was obscene in one era may be acceptable under today's community standards.

Principle / ratio: three doctrines

1. Community standards test: the standard of the average reasonable reader replaces Hicklin.
2. Contextual analysis: material must be examined with its complete message, not on the basis of one part.
3. Freedom-protective approach: the test for obscenity must fit with freedom of speech and expression under Article 19(1)(a), as had also been said in Ranjit D. Udeshi.

Point	Hicklin test (Ranjit D. Udeshi, 1964)	Community standards test (Aveek Sarkar, 2014)
Yardstick	Weakest or most easily influenced mind	Average, reasonable Indian reader today
Unit of assessment	Even a single isolated part	The work as a whole, in its context
Question	Can it deprave and corrupt those open to immoral influences?	Is it designed to arouse sexual excitement and corrupt the mind, judged by contemporary standards?

Significance

• Modernised Indian obscenity law.
• Artists, journalists and the media gained confidence that responsible, contextual use of a controversial photograph or topic would be protected from unnecessary criminal cases.
• Courts today test obscenity in films, web series and literature by the same community standards test.
• Strengthened editorial independence and press freedom.
• Section 292, IPC is now Section 294 of the B.N.S., but the Aveek Sarkar test applies in exactly the same way.

Exam points

Freedom of expression should not be restricted lightly; the standard of morality follows the changing standards of society. Keywords: Section 292; Hicklin test rejected; the old approach of Ranjit D. Udeshi; community standards test; contextual analysis; the Boris Becker photograph and its anti-racism message; proceedings quashed.

Case 55: Anantha Kumar Naik v. State of Andhra Pradesh (1977)

▶ Watch this part of the lecture (8:16:40)

This case returns to criminal investigation and takes up the other side of the question raised in Selvi. It is an important case on self-incrimination and medical examination: whether compelling an accused to give blood and semen samples violates Article 20(3).

Court, judge and date

• Not a Supreme Court decision: a decision of the Andhra Pradesh High Court.
• Decided by Justice Sambasiva Rao on 6 July 1977; reported in the 1977 Criminal Law Journal.

Article 20(3): the right against self-incrimination

Article 20(3): a person accused of an offence shall not be compelled to be a witness against himself.

Issue

Whether forcibly taking blood and semen samples from an accused amounts to testimonial compulsion under Article 20(3). Testimonial compulsion means forcing someone to provide information or testimony.

Facts

• Anantha Kumar Naik and other accused were alleged to have abducted and raped a woman.
• The prosecution sought a medical examination of Naik, taking samples of his blood and semen for comparison with evidence found at the crime scene.
• Naik challenged this, arguing that the test violated his constitutional right against self-incrimination under Article 20(3).

Principles laid down

1. Testimonial compulsion

• Collecting blood and semen samples is not testimonial compulsion.
• "Testimonial" means giving a statement or confession, that is, disclosing information that is in one's own mind.
• Giving physical evidence related to the body is not testimonial. A blood or semen sample says nothing by itself; it is merely a physical fact, which experts then examine.

2. Section 53, CrPC (now Section 51, B.N.S.S.)

• Medical examination of an arrested person is legally permissible.
• If a police officer believes an examination could yield evidence of the offence, a registered medical practitioner may examine the accused at the officer's request.
• Reasonable force may be used for this purpose if necessary.

Judgment (held)

The Andhra Pradesh High Court dismissed Naik's challenge and held the medical examination valid. Taking blood and semen samples was lawful and did not violate Article 20(3).

Later legal developments

The law that followed reinforced this decision.

• In 2005, the Explanation to Section 53, CrPC was amended to expressly include blood, bloodstains and semen, swabs in sexual offences, hair samples, and modern scientific techniques such as DNA profiling.
• Section 53A was added at the same time, giving a detailed procedure for the medical examination of a person accused of rape. It is now Section 52 of the B.N.S.S.
• In Ritesh Sinha (2019), a voice sample was placed in the same physical category.
• Today Section 349 of the B.N.S.S. clearly gives a magistrate the power to order the taking of such samples.

Distinction from Selvi

Point	Selvi (2010)	Anantha Kumar Naik (1977)
Techniques / material	Narco-analysis, polygraph, brain mapping	Blood, semen, DNA, fingerprints; voice samples (Ritesh Sinha, 2019)
Nature	Draw information out of the accused's mind: testimonial	Physical evidence relating to the body
Can it be compelled?	No; cannot be conducted without consent	Yes; can be taken

Significance

• Clearly established the balance between the right against self-incrimination and the power of investigation.
• Taking physical evidence from an accused through medical examination is constitutional.
• Maintains the balance between individual rights and criminal investigation.
• An accused can be compelled to cooperate in collecting evidence, so long as that evidence is not testimonial.

Exam points

The three ingredients of Article 20(3); testimonial versus physical evidence; Kathi Kalu Oghad; Section 53, CrPC becoming Section 51, B.N.S.S.; the 2005 Explanation on DNA; the distinction from Selvi.

Case 56: G.V.K. Industries v. Income Tax Officer (2011)

▶ Watch this part of the lecture (8:22:44)

After the limit on the State's reach into an accused's body, this case concerns a different kind of limit: the geographical limit on Parliament. Can the Indian Parliament make law on an event anywhere in the world? Can India tax a foreign company that does not operate in India? The case decides whether Parliament can legislate on foreign situations and whether such laws are constitutional.

Bench and date

• Decided on 1 March 2011.
• Five-judge Constitution Bench led by Chief Justice S.H. Kapadia; opinion written by Justice B. Sudershan Reddy.

Facts

• G.V.K. Industries, an Indian company, was setting up a power project in Andhra Pradesh.
• For advice and help in arranging a loan, it was to pay a success fee (a fee paid when the work succeeds) to a foreign company, ABB Projects and Trade Finance International of Zurich.
• The Income Tax Officer said G.V.K. had to deduct part of the payment as tax (TDS, tax deducted at source) because the income arose in India.
• The duty to deduct tax on payments to non-residents was in Section 195 of the Income Tax Act, 1961. From 1 April 2026 that Act has been replaced by the Income-tax Act, 2025, and the provision is now in its Section 393(2).
• The Department relied on Section 9(1)(i) and part (b) of Section 9(1)(vii). Section 9 sets out which income is deemed to arise in India. Sub-clause (vii): fees for technical services (technical, managerial or consultancy services) paid by an Indian resident are deemed to arise in India, except where the service is used for a business outside India or for earning income outside India.

Procedural history

• G.V.K. filed a writ petition in the Andhra Pradesh High Court, arguing that this part of Section 9 was unconstitutional because Parliament had no power to legislate on foreign transactions, and that it violated equality under Article 14.
• The High Court held that Section 9(1)(i) did not apply, but Section 9(1)(vii) applied fully and was valid law, relying on the ECIL (Electronics Corporation of India) case.
• On appeal, the Supreme Court found a major constitutional question: the limit of Parliament's territorial power. This question had arisen earlier in ECIL and had been referred to a Constitution Bench, so this matter also went before a Constitution Bench.

Issues

1. Can Parliament legislate on extra-territorial matters (lying outside the country's boundary) that have no direct or indirect effect on Indian territory or on Indians?
2. Can Parliament make law for a foreign territory that has nothing at all to do with India?

Relevant Articles

• Article 245(1): Parliament may make law for the whole or any part of the territory of India.
• Article 245(2): no law made by Parliament is invalid merely because it has effect outside India.
• Article 1: India is a Union of States, and it describes the areas making up India's territory.

The question was whether these meant Parliament could legislate on every event in the world.

Key terms explained by the Court

• Aspects or causes: any event, activity or transaction in society, whether political, economic or cultural.
• Extra-territorial aspects: things happening outside India.
• Nexus with India / impact on India: a foreign activity having an actual effect, direct or indirect, on India. Nexus means a connection or link.
• Benefit to India: the law must be beneficial to India's interest, welfare or security.

Judgment (held)

• Parliament can legislate on foreign matters, subject to one condition: the matter must have a real connection with India, that is, some effect on India or on the interest, welfare or security of the people of India.
• The link must be real, not imaginary or fanciful. If an event has nothing to do with India, Parliament cannot legislate on it.
• The effect need not be large or significant; even a small real effect is enough. No quantitative test (measuring the size of the effect or the strength of the connection) applies; the connection merely has to be real.
• Whether a law has a real connection with India is a mixed question of fact and law, examined by the courts.
• If Parliament itself writes a stronger connection requirement into a particular law, courts will apply it, but that requirement belongs to the law, not to the Constitution.
• Parliament can make law only for India. A law meant only for a foreign territory with no connection to India would be ultra vires (beyond power) and void.

Actual result

• Before the Constitution Bench, G.V.K. withdrew its challenge to the constitutional validity of this part of Section 9, so the Bench did not decide its validity.
• The Bench answered only the two constitutional questions on Parliament's power and sent the appeal back to a regular bench. The section had already been upheld by the Andhra Pradesh High Court.
• On 18 February 2015, a two-judge bench of the Supreme Court decided the tax issue in favour of the Income Tax Department: the success fee was a fee for consultancy services, so G.V.K. was liable to deduct tax. G.V.K. lost; the Department won.

Exam points

Keywords: Article 245(1) and (2); extra-territorial operation; real nexus with India; benefit of India; Parliament not an unlimited sovereign; judicial review of nexus.

Case 57: Raja Ram Pal v. Hon'ble Speaker, Lok Sabha (2007)

▶ Watch this part of the lecture (8:31:03)

G.V.K. showed the external limit on Parliament; this case concerns the limit on power within Parliament itself. P.V. Narasimha Rao and Sita Soren dealt with immunity under Article 105(2); Raja Ram Pal is the landmark judgment on the relationship between parliamentary privilege and judicial review.

Bench and date

• Decided on 10 January 2007.
• Five-judge Constitution Bench led by Chief Justice Y.K. Sabharwal; majority of 4:1.

Facts

• In December 2005 a TV channel broadcast a sting operation (recording a wrongful act with a hidden camera) known as the cash for query scandal.
• It showed MPs willing to accept money to raise questions in Parliament on the payer's behalf.
• Eleven MPs were caught: ten from the Lok Sabha and one from the Rajya Sabha. It became a major media issue.
• Both Houses set up their own inquiry committees and, after investigation, voted to expel these MPs (terminate their membership). Raja Ram Pal was one of the expelled MPs.

Issues

1. Does Parliament have power under Article 105 to expel a member?
2. Can a court review Parliament's decision to expel a member?
3. Does expulsion go against democratic principles and fundamental rights?

Article 105

• Clauses (1) and (2): freedom of speech in Parliament and immunity from court proceedings for that speech.
• Clause (3): in other matters, the powers, privileges and immunities of each House and its members are those defined by law made by Parliament; until then, those existing immediately before the Forty-fourth Amendment (1978) came into force.
• Parliament has never passed a law codifying these privileges.
• The original Constitution referred directly to the British House of Commons; the Forty-fourth Amendment removed that reference. The position remained the same, because the privileges existing before the amendment were themselves modelled on the House of Commons.

Arguments

Petitioners (expelled MPs)	Union of India (defending the expulsion)
Parliament has no power of expulsion; the Indian Parliament does not have powers like the British House of Commons.	The MPs' conduct made them unfit to continue; expulsion was disciplinary action against their behaviour.
Article 105(3) nowhere mentions expulsion.	Parliament has the exclusive power to punish its own members, for contempt or misconduct.
Fundamental rights, such as Article 19(1)(g), were violated, and as a matter of democratic principle the rights of their voters were affected.	Remaining an MP is not an absolute right.
Articles 101 to 103 are an exhaustive list of how membership ends (Articles 101 and 102: when a seat becomes vacant and when a member is disqualified; Article 103: system for deciding disqualification). None mentions expulsion, so it was illegal and arbitrary.	An expelled member can contest elections again in the future.
The Supreme Court is the final interpreter of the Constitution, so Parliament's decision is subject to judicial review.	Internal disciplinary proceedings cannot be challenged in court; in protecting its privileges Parliament acts in its own sovereign capacity.

Both Houses chose not to appear before the Court, so the Union of India defended the expulsion.

Judgment (held)

1. Judicial review exists

• The Court does have the power of judicial review. If Parliament acts unconstitutionally in the name of privilege, the Supreme Court can intervene.
• Article 122: the validity of proceedings in Parliament cannot be challenged merely on the ground of irregularity of procedure.
• The Court distinguished irregularity from illegality: no intervention for a minor procedural mistake, but the court can examine cases of gross illegality, irrationality, violation of constitutional mandate, mala fides, violation of natural justice, or perversity.
• The grounds of violation of constitutional mandate, mala fides, violation of natural justice and perversity are the same ones applied to the Speaker's decisions in Kihoto Hollohan.

Irregularity of procedure	Illegality
Minor procedural mistake	Gross illegality, irrationality, violation of constitutional mandate, mala fides, violation of natural justice, perversity
Protected by Article 122; court will not intervene	Open to judicial review

2. Expulsion valid

• Under Article 105(3), Parliament has the privilege of protecting its own dignity and functioning, which includes the power to expel a member for serious misconduct.
• The right to vote is only a statutory right, not a fundamental right, and the right to representation is not absolute.
• Since an expelled member can contest elections again, there was no violation of democratic principle.
• The procedure was fair; members were given a chance to state their case, so there was no violation of natural justice.

Dissent: Justice R.V. Raveendran

• Article 105(3) does not give Parliament the power of expulsion.
• Articles 101 and 102 completely settle when membership ends. To make expulsion a ground, Article 101 or 102 would have to be amended, or a separate law made.
• The expulsion power was therefore unconstitutional and against the scheme of Articles 101, 102 and 103.

Significance

• Privileges of Parliament are not absolute; if misused, the judiciary can step in.
• The majority recognised expulsion as a means for Parliament to protect its dignity and credibility.
• A balance: parliamentary privileges survived, and the judiciary's power of review was firmly established.
• The right to vote is statutory, not fundamental, and the right to representation is not absolute, so its protection is limited.
• Regarded today as a leading precedent on parliamentary privilege and judicial review.

Exam points

Parliament cannot misuse its privileges, and the judiciary always retains judicial review; at the same time expulsion is a strong weapon available to Parliament against its own members. Short-note keywords: cash for query; expulsion of eleven MPs; Article 105(3); irregularity versus illegality under Article 122; grounds of judicial review; 4:1; dissent of Justice Raveendran.

Quick revision

▶ Watch this part of the lecture (8:40:28)

Revise the 57 cases as connected stories, not isolated cases; these connections are what make an examination answer strong:

• Amending power and basic structure: Shankari Prasad and Sajjan Singh, Golaknath, Kesavananda Bharati, Indira Gandhi v. Raj Narain, Minerva Mills, Waman Rao, I.R. Coelho, ending with the Fourth Judges Case on appointment of judges.
• Expansion of Article 21: from the narrow interpretation in A.K. Gopalan to the fair, just and reasonable procedure of Maneka Gandhi, then Hussainara Khatoon, Selvi, Puttaswamy, Navtej, Joseph Shine and Common Cause.
• The State under Article 12: Rajasthan State Electricity Board, Sukhdev Singh, Pradeep Kumar Biswas, Zee Telefilms.
• Reservation: M.R. Balaji, Indra Sawhney, M. Nagaraj, Ashok Kumar Thakur.
• Federalism and the Governor: Samsher Singh, S.R. Bommai, Rameshwar Prasad, Nabam Rebia, the Delhi case.
• Legislature, elections and their purity: Kihoto Hollohan, P.V. Narasimha Rao to Sita Soren, Raja Ram Pal, Jan Chaukidar, Manoj Narula, Public Interest Foundation, Anoop Baranwal.
• Religion, personal law and equality: Shah Bano, Danial Latifi, Shayara Bano, Bijoe Emmanuel, Sabarimala.
• Speech and privacy: Shreya Singhal, Anuradha Bhasin, Aveek Sarkar, PUCL.
• For every case be clear on four things: the question it began with, the Article at its centre, the Court's main principle, and how the law changed afterwards.
• Where the law has since changed (as with Dheeraj Mor, P.V. Narasimha Rao or ADM Jabalpur), always write the new position. This is what separates an average answer from a good one.
• The single thread: the Constitution is not merely a document that grants power; it keeps power within limits, whether of Parliament, the executive or the judiciary itself.