-by Justice Markandey Katju
The Fundamental Rights and Directive Principles in the Indian Constitution and the case law thereon have been discussed in detail in various books e.g. Basu’s ‘Shorter Constitution of India’, etc. It is therefore not necessary to discuss the same again. What will be discussed here are some specific issues relating thereto, particularly in cases which I decided.
1. Preventive Detention
Article 22 (3)(b) of the Indian Constitution specifically permits preventive detention.
Preventive detention permits the concerned authorities to detain a person in jail for a specified period without a regular trial. It is therefore an anathema to freedom loving people. From the time of issue of the Magna Carta it is a fundamental requirement of the rule of law that a person cannot be kept in jail except after giving him an opportunity of hearing in accordance with the criminal procedure code. Even if a person is arrested after an offence he has a right to apply for bail, and to get a fair trial. Preventive detention is therefore like the lettres de cachet which the French kings and aristocrats used to issue to put people in jail without trial. Voltaire was put in the Bastille in this manner, and so was Dr. Manette, the fictional character in Charles Dickens’s novel, ‘A Tale of Two Cities’.
In cases of preventive detention no offence is proved, and the justification of such detention is suspicion or reasonable probability. There is no conviction which can only be warranted by legal evidence. Preventive detention is often described as a ‘jurisdiction of suspicion’.
In contrast to a regular trial, in preventive detention no lawyer is permitted, and the detenue is not allowed to present his witnesses or cross examine the witnesses against him. All that he is allowed is making a representation against the detention order, which is decided by an Advisory Board. But without the right to a lawyer, right to present his witnesses, and right to cross examine the witnesses against him (which is necessary to test the veracity of the prosecution witnesses) how will he get a fair hearing?
It is said that preventive detention is preventive not punitive. But for the detenue that makes no difference, as he is incarcerated without a fair trial, which in substance amounts to a punishment.
Preventive detention laws do not exist in democracies such as U.K. or U.S.A. (except during wartime). In India, however, they exist even during peacetime.
I have always held strong views in favour of freedom (see my article ‘The Importance of Liberty and Democracy in India’ on my blog justicekatju.blogspot.in) . Hence I have always been opposed to preventive detention.
However, since preventive detention is permitted by the Indian Constitution, it cannot be held to be ipso facto illegal. But it can certainly be confined to narrow limits, and that is what a three Judge bench over which I presided, Rekha vs. State of Tamil Nadu, 2011, did.
Article 21 gives the right to life and liberty to all persons. In Rekha’s case we held that Article 22 (3)(b), which permits preventive detention, must be held to be an exception to Article 21, and it cannot ordinarily nullify the full force of the main rule, which is the right to liberty in Article 21.
We observed: “Article 21 is the most important of the fundamental rights guaranteed by the Constitution of India. Liberty of a citizen is a most important right won by our forefathers after long, historical and arduous struggles. Our Founding Fathers realized its value because they had seen during the freedom struggle civil liberties of our countrymen being trampled upon by foreigners, and that is why they were determined that the right to individual liberty be placed on the highest pedestal”. We further observed: “Therefore we must confine the power of preventive detention to very narrow limits, otherwise the great right to liberty won by our Founding Fathers, who were also freedom fighters, after long, arduous, historical struggles will become nugatory.”
In Rekha’s case (supra) the allegations against the detenue was that he, and the co-detenues, used to collect expired pharmaceutical drugs, which used to be dumped by medical shops in Chennai city and its suburbs at a dump yard. They then tampered with the original labels and printed and pasted fresh labels to make it appear as if they were not expired drugs, and these were then sold to the public.
Criminal prosecutions under various provisions of the Indian Drugs and Cosmetics Act, 1940 and the Indian Penal Code were initiated against the detenue, and while these were going on, preventive detention orders under the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest Offenders, Goondas etc Act 1982, a preventive detention law, were served on them.
A habeas corpus petition filed by a wife of one of the detenues was dismissed by the Madras High Court, against which judgment an appeal came to the Supreme Court.
We allowed the appeal and set aside the detention order. A new principle was laid down by us in this decision as follows:
“Whenever an order under a preventive detention law is challenged, one of the questions the court must ask in deciding its legality is: Was the ordinary law of the land sufficient to deal with the situation? If the answer is in the affirmative, the detention order will be illegal.”
In Rekha’s case the court observed that the relevant provisions in the Drugs and Cosmetics Act and Indian Penal Code were sufficient to deal with the situation, and hence the preventive detention order was illegal.
No doubt a Constitution Bench of the Supreme in Haradhan Saha vs. State of West Bengal (1975) 3 S.C.C. 198 had held that even if a person is liable to be tried in a criminal court for commission of a criminal offence, or is actually being so tried, that does not debar the authorities from passing a detention order under a preventive detention law even on the same allegations. However, we held that this observation in Haradhan Saha’s case, to be understood correctly, must be construed in the background of the constitutional scheme. We held that if a person is liable to be tried, or is actually being tried for a criminal offence, but the ordinary law of the land (the I.P.C. or other statute) was unable to deal with the situation, only then can a preventive detention order be validly passed. Hence we held in Rekha’s case that the observation in para 34 of Haradhan Saha’s case that even if a criminal case is going on against a person, a preventive detention order can be passed on the same allegations, cannot be regarded as an unqualified statement.
Deepak Bajaj vs. State of Maharashtra, 2008
In this case the petitioner approached the court challenging a preventive detention order before he had been arrested, and the question before us was whether such a petition at the pre-execution stage could be entertained?
In Addl. Secretary vs. Alka Subhash Gadia, 1990, (1992) S.C.C. Suppl (1) 496 a three Judge Bench of the Supreme Court had mentioned 5 grounds on which a habeas corpus petition against a preventive detention order could be entertained at the pre-execution stage viz. (1) The order was not passed under the Act under which it was purported to have been passed (2) It was sought to be executed against a wrong person (3) It was passed for a wrong purpose, (4) It was passed on vague, extraneous or irrelevant ground, and (5) the authority which passed it had no authority to do so. This decision was followed in other decisions of the Court.
In Deepak Bajaj’s case we held that the 5 grounds mentioned in Alka Subhash Gadia’s case were illustrative and not exhaustive. We observed: “If a person against whom a preventive detention order has been passed can show to the court that the detention order is clearly illegal why should he be compelled to go to jail? To tell such a person that although such a detention order is illegal he must yet go to jail although he will be released later is a meaningless and futile exercise”.
We held that if a person is sent to jail then even if he is subsequently released his reputation may be irreparably tarnished. The reputation of a person has been held by the court to be a facet of his right to life under Article 21.
2. Closing Slaughterhouse on Paryushan
I have sometimes been asked which was the most difficult case I found to decide, and my answer usually is: Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamaat, 2008.
Usually I did not have difficulty in deciding cases, because having spent 40 years in the legal world, 20 years as a lawyer and 20 years as a Judge, I am broadly conversant with legal principles. However, in this case I found it very difficult to make up my mind. The Senior Judge on the bench, Justice H.K. Sema, had asked me to write the judgment after we had heard arguments and reserved the judgment, but for several weeks I just could not decide what view to take.
The facts of the case were that the Ahmedabad Municipality in Gujarat had for several years passed resolutions for closing down the Municipal slaughterhouse during the 9 days Jain Paryushan festival. Since goats, lamb and other animals could legally be slaughtered only in the Municipal slaughterhouse (for sanitation, hygiene, etc) the result was that for 9 days in a year people of Ahmedabad had to be vegetarians.
The butchers association of Ahmedabad challenged this resolution before the High Court on the ground that it violated their fundamental right of freedom of trade and business guaranteed by Article 19 (1) (g) of the Constitution. The residents of Ahmedabad pleaded that this resolution compelled them to become vegetarians for 9 days in a year, and this violated their right of privacy which had been held to be part of Article 21 in several decisions of the Supreme Court.
Jains are a community who follow the teachings of Lord Mahavir and other ‘Tirthankaras’. They believe in Ahimsa or non-violence, and are strict vegetarians.
The Paryushan festival is perhaps the most important one for Jains. During the 9 days period of the festival Jains do fasting and other spiritual acts e.g. recitation of their scriptures.
There is a large Jain community in Western India e.g. Gujarat, Rajasthan, Western Madhya Pradesh, Delhi etc. For several years the Ahmedabad Municipality had closed its slaughterhouse during Paryushan, and this was now challenged. The High Court allowed the writ petition, and the matter came up on appeal before us in the Supreme Court.
The petitioners before the High Court (respondents before us) alleged that the impugned resolutions of the Ahmedabad Municipality closing down the Municipal slaughterhouse during Paryushan was an unreasonable restriction on the rights of the butchers of Ahmedabad (the writ petitioners) to carry on trade and business in livestock, mutton etc. It was also a violation of the right of non vegetarians to eat meat. What one eats is part of one’s right to privacy, which by judicial interpretation has been included in Article 21 of the Indian Constitution.
As mentioned above, for several weeks after reserving judgment in the case I could not make up my mind what view to take. There was certainly a case in support of the contentions of the writ petitioners (the butchers and non-vegetarian section of society), which had been upheld by the High Court. After all, it is one’s personal business what one eats. Why should a non-vegetarian be compelled to become a vegetarian, even if for 9 days? Nobody was compelling the Jains or other vegetarians to become non-vegetarians. Why then should it be vice versa?
This argument at first appealed to my mind. I am a strong votary for freedom, and the impugned resolution seemed to violate the rights of the butchers as well as non-vegetarians.
However, ultimately I decided to uphold the validity of the resolution and reverse the judgment of the High Court.
What persuaded me to do so were these factors:
(1) The restriction was only for a short period of 9 days. Had it been for a longer period, say, for several months, I would certainly have held it to be violative of Articles 19 (1) (g) and 21 of the Constitution.
(2) There is a large Jain community in Western India, including Ahmedabad, and in a country like India with such tremendous diversity of religions, castes, languages, ethnic groups, etc we must respect the feelings of all communities.
(3) The restriction was not a new one, but had been imposed every year for several decades. Reference was made in the judgment to Emperor Akbar and his respect for the Jains.
Taking all these considerations cumulatively we upheld the restriction as being a reasonable one. We referred to the Constitution Bench decision of the Supreme Court in State of Madras vs. V.G. Row, 1952 in which the broad tests for determining reasonableness were indicated. One of the tests laid down therein was whether the restriction was excessive. In the present case we noted that the closure of the slaughterhouse was only for a short duration of 9 days in a year, and hence it was not excessive. We also referred to the decision of the Supreme Court in Government of Andhra Pradesh vs. P. Laxmi Devi, 2008 in which it was held that the court should exercise judicial restraint while judging the constitutional validity of statutes, and the same principle would apply while adjudicating the constitutional validity of delegated legislation.
3. Mere Membership of Banned Organization
In certain statutes like the Terrorist and Disruptive Activities Act, 1987 (called TADA) or the Unlawful Activities (Prevention) Act, 1967 mere membership of an organization banned under that Act is a crime. Two cases came up before a bench of the Supreme Court of India which I was the senior member relating to TADA. These cases were Arup Bhuyan vs. State of Assam and Sri Indra Das vs. State of Assam, both decided in 2011. The appellants in these cases were convicted as they were members of ULFA, which was a banned organization under TADA.
We held in these cases following the decision in State of Kerala vs. Raneef, 2011 that mere membership of a banned organization will not incriminate a person unless he resorts to violence or incites people to violence or does an act intended to create disorder or disturbance of public peace by resort to violence.
In Arup Bhuyan’s case we relied on the decision of the U.S. Supreme Court in Clarence Brandenburg Vs. State of Ohio, 395 U.S. 444 (1969) in which the U.S. Supreme Court held that mere advocacy or teaching the duty, necessity, or propriety of violence as a means of accomplishing political or industrial reform, or publishing or circulating or displaying any book or paper containing such advocacy, or justifying the commission of violent acts with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism, or to voluntarily assemble with a group formed to teach or advocate the doctrines of criminal syndicalism is not per se illegal. It will become illegal only if it incites to imminent lawless action. The statute under challenge was hence held to be unconstitutional being violative of the First and Fourteenth Amendments to the U.S. Constitution.
What has to be noted is that Section 3 (5) of TADA makes mere membership of a banned organization a crime. However, in Arup Bhuyan’s case (supra) we held that Section 3 (5) cannot be read literally, otherwise it will violate Articles 19 and 21 of the Constitution. It is well settled that the Court should try to take a view which upholds the Constitutional validity of a statute, even if that requires reading down the plain language of the statute. In Sri Indra Das’ case we referred to several decisions where the language of a statute had been read down by the court to sustain its constitutional validity.
In Sri Indra Das case we referred in paragraphs 8 to 25 to various decisions of the U.S. Supreme Court which held that mere membership of a banned organization cannot be held to be a crime. In Scales vs. U.S. 367 U.S. 203 (229) a distinction was made between a passive member and an active member. In that decision Justice Harlan observed that there must be clear proof that the accused specifically intended to accomplish the aims of the organization by resort to violence. A person may be foolish, deluded or perhaps merely optimistic, but that would not make him a criminal.
In Noto vs. U.S. 367 US 290 Justice Harlan observed:
“The mere teaching of Communist Theory, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action.”
In Communist Party vs. Subversive Activities Control Board, 367 U.S.1 (1961) Mr. Justice Hugo Black in his dissenting judgment observed:
“The first banning of an association because it advocates hated ideas, whether that association be called a political party or not, marks a fateful moment in the history of a free country. That moment seems to have arrived for this country. This whole Act – embarks this country, for the first time, on the dangerous adventure of outlawing groups that preach doctrines that nearly all Americans detest. When the practice of outlawing parties and various public groups begins, no one can say where it will end. In most countries such a practice once begun ends with a one party government”.
In Whitney vs. California, Mr. Justice Brandeis, the celebrated Judge of the U.S. Supreme Court, in his concurring judgment, which really reads like a dissent, observed:
“Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burned women. It is the function of free speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be a reasonable ground to believe that the danger apprehended is imminent. The wide difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy, must be kept in mind.”
In India many people may join a banned organization only because they believe in the ideology of that organization, but they may not be doing, or preparing to do, or inciting or organizing, any act of violence. They are only passive, not active members, and hence they cannot be convicted.
4. The Haj Subsidy case
In Praful Goradia vs. Union of India, 2011, the grievance of the petitioner is that he is a Hindu, but he has to pay taxes part of whose proceeds go for the purpose of the Haj pilgrimage, which is only done by Muslims. His argument was that Articles 14 and 27 of the Constitution were violated.
Under the Haj Committee Act, 1959 (replaced by Haj Committee Act, 2002) pilgrims selected by the Haj Committee for going for Haj are given a subsidy by the Government of India in the air fare. It was submitted that the burden of this subsidy fell on non-Muslims too.
Article 27 of the Constitution states: “No person shall be a compelled to pay taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.”
The court held in Praful Goradia’s case that there was no violation of Article 27. The court observed:
“In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duty or sales tax or any other tax collected in India were to be utilized for promotion or maintenance of any particular religion or religious denomination.” It was also held that if only a very small part of any tax was used for this purpose there would no violation of Article 27.
The petitioner had not made any allegation that a substantial part of any particular tax was used for subsidizing the Haj pilgrimage.
It was pointed out by the government counsel that the government incurs expenditures for Kumbh and Magh Melas, Mansarovar pilgrimage, etc. for Hindus, visits of Sikhs to gurudwaras in Pakistan, etc. but these were small expenditures compared to the total tax collected.
The court observed that we must not be too rigid in these matters, and must give some free play to the joints of the State machinery. A balanced view had to be taken, and one could not say that if even a single paisa of government money is spent for a particular religion there would violation of Article 27. As observed by Justice Holmes of the U.S. Supreme Court, in Bain Peanut Co. vs. Pinson, 282 U.S. 499 (1931), “The interpretation of Constitutional principles must not be too literal. We must remember that the machinery of the government would not work if it were not allowed a little play in its joints.”
The court also held that there was no violation of Article 14 and 15 of the Constitution. Expenditures were incurred by the governments, Central and State, for other religions too. Article 14 could not be interpreted in a doctrinaire or dogmatic manner. It is not prudent or pragmatic for the court to insist on absolute equality when there are diverse situations and contingencies. The court also relied on the decision in Government of Andhra Pradesh vs. P. Laxmi Devi, 2008 in which the court advised great restraint while deciding the constitutionality of a statute.
5. Right of Muslims to Build Mosques
When I was a Judge in the Allahabad High Court a petition came up before a division bench (of which I was the senior member) in Mohd. Sharif Saifi vs. State of U.P., Writ Petition 43403/1998 decided on 28.1.1999.
The grievance of the petitioner was that he was not being allowed to build a mosque on his land, and hence Article 25 of the Constitution was being violated.
Agreeing with his contention, we allowed the petition and observed:
“This is a free and secular country. Subject to public order, morality and health, anybody is entitled under Article 25 of the Constitution to build any house of worship, whether it is a mosque, church, temple, etc., on his own land or on anyone else’s land with the consent of that person. Article 25 (1) of the Constitution states:
“Subject to public order, morality and heath and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”.
Hence, we make it clear that the petitioner is fully entitled to make a mosque on his own land or on someone else’s land with the permission of that person, and if he does so the authorities will give him full protection, and take strong action against anyone interfering with the petitioner’s right. No permission of the D.M. is required for this.
However, we would humbly suggest to the petitioner and others concerned that instead of mosques, temples, etc., the country requires more schools, hospitals, technical institutions, vocational training institutes, etc., for the country’s scientific and technological development. Half of the population of the State is illiterate and a large number of young people wish to get technical training in order to get employment, and hence it is absolutely essential that there should be more schools, technical institutes, vocational training institutes, hospitals, etc., so that the country progresses, and the welfare of the people is attended to. Hence instead of building temples, mosques, etc., we recommend to all people (including the petitioner) to consider our suggestion, and follow it if it appeals to them.
In this connection we may also mention that Article 51-A (h) of the Constitution makes it a fundamental duty of all citizens to develop the scientific temper.
However, we again make it clear that this is only our humble suggestion, and the petitioner is fully entitled to make a mosque on his own land, or on someone else’s land with his consent, and the authorities will give him full protection for doing so”.
6. Right of Muslims to Bury their Dead Bodies in their Graveyard
When I was Chief Justice of the Madras High Court a writ petition, Mohamed Gani vs. Superintendent of Police, Writ Petition 5202/1998 (decided on 14.7.2005) was heard by a bench of myself and Justice Kalifulla (who is now a Judge of the Supreme Court). The judgment can be seen online.
The facts of the case were that in a certain village in the Dindigul district of Tamil Nadu certain Harijans were not allowing the Muslims of the village to take their dead bodies for burial through a certain public street.
We allowed the petition, holding that this is a free, democratic and secular country. In view of the tremendous diversity in our country, the only policy that can work is secularism and equal respect to all communities.
We held that the right to bury dead bodies in accordance with one’s religious rites and customs is a part of Article 25 of the Constitution. One could understand an objection to taking bodies through someone’s private land, but here the bodies were sought to be taken through the public street. Hence there could be no valid objection, and we directed the administration that they should ensure that there was no obstruction.
In paragraph 19 of the judgment we further observed:
“From a perusal of the facts on record it appears that in village Balasamudram there are about 5000 families, and of them, 1000 families are Muslims. Thus Muslims are a minority in that village. It is the duty of the majority community in any particular area in our country to protect the minorities, and see to it that the members of the minority community (whether it is a religious minority or caste, ethnic or lingual minority) are made to feel secure and live with respect, and are not harassed in any way. Respect for minorities is a mark of a civilized people in the modern world. Hence it is absolutely essential that wherever in any particular place or region in our country any community is in the minority, the majority community must see to it that the minority community is made to feel secure and is not oppressed or in any way harassed, but can live with respect and with equality with others”.
7. Protection to Minorities
Article 25 (1) of the Indian Constitution states: “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”
I have always been a supporter of the rights of religious minorities in India, because I firmly believe that a mark of a civilized society is that minorities therein can live with dignity and respect.
Christians are only about 2% of the 1.25 billion people in India. In January 2009 a case came up before a bench of the Supreme Court of which I was a member, in which the allegations were that Christians in Orissa were being persecuted by right wing Hindu groups. It was alleged that about 50,000 Christians had fled from their homes, some had been killed, their houses burnt, and they were living in camps or in the jungle.
During the hearing of the case I remarked “We will not tolerate persecution of minorities. If the state government is unable to protect them it should resign. Article 25 of the Indian Constitution guarantees freedom of religion to all”.
These oral observations had their effect, and the persecution of Christians in the State stopped, and compensation was awarded to those whose properties had been destroyed or damaged.
When I was a Judge of the Allahabad High Court a case came before me pertaining to some village in U.P. In that village the majority consisted of Muslims, while the minority were Hindu Harijans. A Harijan girl was gang raped by some Muslim boys, who were prosecuted. I awarded the accused harsh punishment, holding that since Muslims were in the majority in that village it was their duty to see to it that Hindus could live with dignity and respect, but the accused did just the opposite. In India Hindus are a majority out of the total population, but they may be a minority in a specific area. It is the duty of the majority in every specific area to ensure that the minority lives with dignity and respect. So it is not only Muslim and Christian minorities whom I have sought to protect, but also Hindus where they are in a minority in a particular area.
8. Slaughter of Buffaloes
When I was a Judge of Allahabad High Court a writ petition was filed before me, Banarsi vs. Abdul Ghani, second appeal 2219/1985 decided on 12.5.1992, by a Hindu praying that the court should prohibit slaughter of buffaloes. This was shortly before the Muslim festival of Eid-ul-Zoha or Bakrid.
Ordinarily Muslims slaughter a goat or lamb on this occasion, but there are many poor Muslims who cannot afford to buy a goat. It is believed that by slaughtering one buffalo the spiritual benefit goes to seven Muslims. So seven poor Muslims get together and slaughter one buffalo, and thus the per head cost is much less than if each of them slaughtered a goat.
I asked the petitioner’s counsel what objection did he have to slaughter of a buffalo. He said that buffalo is the ‘sawari’ (carriage) of Lord Yamaraj (the god of death), and hence his religions sentiments would be hurt and Article 25 of the Constitution violated if buffaloes are slaughtered.
I asked that since a rat is the ‘sawari’ of Lord Ganesh, so should killing of mice be prohibited? Similarly, almost every Hindu god had a sawari. Should slaughter of all these be prohibited?
I held that this is a free and democratic country, and it is open to a person to slaughter any animal unless there is a law prohibiting it. The slaughter of cows and bull is prohibited by the U.P. Prevention of Cow Slaughter Act, 1955, except as permitted by Section 3 and 4 thereof. The killing of wildlife is prohibited by the Wildlife (Protection) Act. However, there is no law prohibiting slaughter of buffaloes. In fact even some Hindus e.g. Gurkhas slaughter buffaloes as a ‘bali’. Of course there may be municipal rules and regulations specifying the place of slaughter, for the sake of hygiene and sanitation. There may also be municipal rules that the slaughter should not be done within a certain distance of a place of worship or a school or college. These were matters which could regulated by the legislature or municipality, but apart from this there can be no prohibition or restriction on the slaughter of buffaloes or other animals. Under Article 25 of the Constitution every person has a fundamental right to freely practice his religion, but this did not mean that one can force his religious views on others.
This view was upheld by a division bench of the High Court in Nisar Ahmed vs District Magistrate Kanpur, CMWP 13695/93 decided on 2.12.1993
9. Sex Workers
There are possibly millions of sex workers (prostitutes) in our country. These girls come into the flesh trade not because they enjoy it but because of abject poverty. They become practically slaves of the brothel owners, and are pitilessly exploited, and often brutally treated. Once they enter the flesh trade they became social outcastes for the so called ‘decent’ society. Surely it cannot be said they enjoy a life of dignity envisaged by Article 21 of the Constitution.
Buddhadev Karmaskar vs. State of West Bengal, Criminal Appeal No. 135 of 2010 was a case which came up before a bench of the Supreme Court of which I was the senior member. The appellant had brutally killed a sex worker, and we upheld his conviction. However, having dismissed the appeal, we suo motu converted it into a P.I.L. for rehabilitating sex workers.
We were of the view that if sex workers were given some technical training they could earn their bread through this technical skill, instead of by selling their bodies. Hence we directed the Central and State Governments to prepare schemes for rehabilitating the sex workers, and we also set up a Committee, headed by a senior lawyer of the Supreme Court, to monitor this exercise. The case is still going on.
10. The Son-of-the Soil Theory
Some people in one State in India propounded the son-of-the soil (bhumiputra) theory. They assaulted people of other states and vandalized their property.
When a case came before a bench of the Supreme Court of which I was a member I orally observed in court that we cannot permit balkanization of the country.
Article 19 (1) (e) of the Indian Constitution states:
“All citizens shall have the right – (e) to reside and settle in any part of the territory of India.”
Thus it is a fundamental right of a person who is a native of State A to migrate to State B, and people in State B cannot say that since the person is not a bhumiputra of State B he is an ‘infiltrator’ and should be driven out. In practically every State in India there are people who were natives of other states, but had come there for trade or job opportunities or some other reason. By virtue of Article 19 (1) (e) they have a fundamental right to migrate to and settle down in any other state.
India is one country, and the bhumiputra theory is totally unacceptable.
11. Right of Accused to Counsel
In Md. Sukur Ali vs. State of Assam, 2011, the Gauhati High Court had dismissed a criminal appeal in absence of his counsel.
Article 22 (1) of the Constitution states:
“No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult, and to be defended by, a legal practioner of his choice.”
Though this provision does not clearly say that a criminal case should not be decided in the absence of the defendant’s counsel, in Md. Sukur Ali’s case we held that a criminal case should not be decided in absence of the defendant’s counsel, and in the absence of his counsel the court cannot dismiss his appeal but must appoint an amicus curiae to appear for the appellant and defend him. The appeal was hence allowed and the matter remanded to the High Court.
12. Right to Water
The right to water is surely part of the right to life guaranteed by Article 21 of the Constitution, because one cannot live without water, and it has been held to be so in certain decisions. But the reality is that vast areas of our country suffer from water shortage. Hence in M.K. Balakrishnan vs. Union of India, WP (c) No. 230 of 2001 a bench of which I was the senior member by our order dated 28.4.2009 directed the Central Government to form a Water Committee headed by the Union Secretary, Science and Technology, whose task was to find out by scientific research methods of solving the water shortage problems in various parts of India. The Water Committee was accordingly constituted and is doing its work.
13. Right to grant interim bail
An accused in a criminal case has a right to apply to the Court for bail. What happens usually in practice, however, is that when an accused applies for bail he must surrender before the court but often the court does not decide the bail application the same day but adjourns the case for a few days to enable the government counsel to get instructions. In the meantime, the accused has to go to jail. Even if he is later granted bail and acquitted his reputation may be irreparably tarnished, and the right to reputation has been held to be part of the right to life guaranteed by Article 21 of the Constitution (see Deepak Bajaj vs. State of Maharashtra).
Hence in Lal Kamlendra Pratap Singh vs. State of U.P., 2009 and in several decisions thereafter it was held that the court has power to grant interim bail pending final disposal of the bail application. Of course it is the discretion of the court to grant interim bail on the facts of the case, and it is not bound to do so. But grant of this power to the court means that a person need not be sent to jail if the court on the facts thinks that interim bail should be granted.
14. Right to Marry
Once a person becomes a major according to the Indian Majority Act, 1875 (which is 18 years of age, vide Section 3) he/she is deemed by the law to know what is in his/her interest. Hence after crossing the age of 18 years no one can legally prevent a person from marrying a person of his/her choice.
In Lata Singh vs. State of U.P., 2006 the facts were that the petitioner fell in love with a young man of a different caste. This very much angered her brothers who started harassing the couple in various ways, because of which she had to leave Lucknow where she had been living. In the petition which came up before the Supreme Court in a bench of which I was a member we observed:
“This is a free and democratic country, and once a person becomes a major he or she can marry whomsoever he/she likes. If the parents of the boy or girl do not approve of such inter caste or inter religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter caste or inter religious marriage”.
We directed the administration and police to prevent harassment or violence on such couples, and those who do so should be criminally prosecuted.
In my view the right to marry a person of one’s choice is a part of the right to privacy, which has by judicial interpretation been held to be part of Article 21 of the Constitution.
In Arumugam Servai vs. State of Tamil Nadu, 2011, the Supreme Court condemned the shameful practice of ‘honour killing’ in some parts of India, of young couples who enter into an inter caste or inter religious marriage against the wishes of their parents or other relatives or caste/community members. We directed criminal prosecution of those who commit such crimes, and suspension of the administrative or police officers who do not prevent them.
15. Insulting dalits
In Arumugam Servai’s case (supra) we held that people should not insult dalits by addressing them as ‘pallan’, ‘parayam’ or ‘paraparayan’ or ‘chamar’ as it hurts their feelings, just as one should not use the word ‘nigger’ or ‘negro’ for African Americans.
16. Article 14
Article 14 of the Constitution states: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”
This provision is directed against inequality (though later by judicial interpretation, in Royappa’s case, 1974 and Maneka Gandhi’s case, 1978 it was also held to be directed against arbitrariness in state action), and this is a bedrock of a modern democracy.
Difficulties, however, arise in its implementation. For instance, it has been held that it does not forbid rational classification.
In two decisions by a bench of the Supreme Court of which I was a member the court has clarified some issues relating to it.
In Transport Dock Workers Union vs. Mumbai Port Trust, 2010 the appellants filed a writ petition in the High Court alleging violation of Article 14 on the ground that those Typist-cum-Computer clerks appointed before 1.11.1996 have to work for six and half hours per day, whereas those, like the appellants, appointed thereafter have to work for seven and half hour a day. The reply of the respondents was that due to change in technology and with introduction of privatization and setting up of private ports with whom the respondent port had to compete, the respondent decided to have uniform working hours for the personnel working in the indoor establishment and outdoor establishment. From the beginning the personnel working in the outdoor establishment had to work for seven and half hours a day, and hence by a policy decision it was decided that to bring about uniformity in the duty hours all personnel working in the indoor establishment were asked to work for seven and half hours. However, in order to avoid litigation it was decided that the duty hours of those appointed in the indoor establishment before 1.11.1996 will remain unchanged, while new recruits had to work for seven and half hours a day, and it was only on acceptance of this condition that they were appointed.
The court held that there was no violation of Article 14 since there was a reasonable classification.
The court went into the question as to what would be a ‘reasonable’ or ‘rational’ classification, and held that one of the tests (though not the only one) would be: is the classification conducive to the functioning of modern society? In the modern world businesses have to face competition. To do so, they may have to have longer working hours and introduce efficiency, while avoiding labour disputes. Looked at from this point of view, the classification was held to be reasonable as it made the organization more competitive and efficient. The court also held that Article 14 could not be interpreted in a doctrinaire or dogmatic manner. Absolute and inflexible concepts are an anathema to progress and change. As observed by Justice Holmes of the U.S. Supreme Court, the machinery of the government would not work if it were not allowed some free play in the joints. Differential treatment does not per se violate Article 14. It violates Article 14 only when there is no conceivable reasonable basis for the differentiation. In view of the complexity of modern society, it was not prudent or pragmatic for the court to insist on absolute equality when there are diverse situations and contingencies, as in the present case.
The second decision, S.C. Chandra vs. State of Jharkhand, (2007) 8 S.C.C. 279 pertaining to Article 14 relates to the principle ‘equal pay for equal work’. In Dhirendra Chamoli vs. State of U.P. (1986) 1S.C.C. 637, the Supreme Court granted to the casual and daily rated employees the same pay scale as regular employees, as they were doing the same work. It was subsequently realized that the application of the principle equal pay for equal work was creating havoc. All over India different groups were claiming parity in pay with other groups e.g. government employees of one state were claiming parity with government employees of other States. Fixation of pay scales is a delicate mechanism which required various considerations including financial capacity, responsibilities, education qualifications, mode of appointment, etc., and it had a cascading effect. Hence in subsequent decisions of the Supreme Court the principle of equal pay for equal work had been considerably watered down, and it had hardly ever been applied in recent decisions of the court. Thus, in State of Haryana vs. Tilak Raj, AIR 2003 S.C. 2658 it was held that the principle applied only if there is complete and wholesale identity between the two groups i.e. in their mode of appointment, educational qualifications, responsibilities, nature of work, experience, etc. Even if the employees in the two groups are doing identical works they cannot be granted equal pay if there is no complete and wholesale identity, e.g. a daily rated employee may be doing the same work as a regular employee yet he cannot be granted the same pay scale. Moreover, even for finding out whether there is complete and wholesale identity the proper forum is an expert administrative body, and not the writ court, vide State of Haryana vs. Charanjit Singh (2006) 9 S.C.C. 321. A mechanical interpretation of the principle of equal pay for equal work creates great practical difficulties. Hence the court should exercise judicial restraint and not interfere in such an executive function, vide Indian Drug and Pharmaceuticals Ltd vs. The Workmen (vide parar34). Fixation of pay or pay scales is an executive function, and the court should not ordinarily encroach into this domain.
17. Reading Directive Principles into the Fundamental Rights
Article 37 of the Constitution specifically states that the Directive Principles of State Policy in the Constitution are non-enforceable.
However, several decisions of the Supreme Court have enforced certain Directive Principles by reading them into certain fundamental rights. Thus, the right to education mentioned in Article 41 has been held to be part of Article 21 of the Constitution, vide Unnikrishnan vs. State of Andhra Pradesh, AIR 1993 S.C. 2178 in which it was held that every child is entitled to free education upto the age of 14 years, and this right flowed from Article 21 of the Constitution. After the age of 14 years the right to education is subject to the limits of economic capacity and development of the State (by the Constitutional Amendment of 2002 the right was incorporated in Article 21 A). In effect this decision says that upto the age of 14 years free education must be given to children whether the State has the economic capacity or not. In this view correct?
It must be remembered that the Founding Fathers deliberately made the Directive Principles unenforceable by courts because India was a poor country and hence may not have the financial resources to enforce the Directive Principles, however much the state wanted to. A balanced and pragmatic view was therefore taken by making these Directive Principles non-enforceable. No doubt it would be wonderful if the Directive Principles would become a reality, but where are the finances for this? By reading Directive Principles into the Fundamental Right is one not making Article 37 nugatory?
The Supreme Court has issued several directives to the government and administrative authorities to implement the Directive Principles. Thus, in Mukesh Advani vs. State of Madhya Pradesh, AIR 1985 SC 1383 (paragraphs 17 and 21) and Bandhua Mukti Morcha vs. Union of India, AIR 1984 SC 802 the court directed the government to issue a notification under the Minimum Wages Act for the benefit of bonded and other exploited labourers. In the same decisions the court set up a Joint Committee of the Union of India and State Government as a machinery to supervise and ensure that he poor and needy employees are not exploited by unscrupulous contractors. In Sheela Barse vs. State of Maharashtra AIR 1983 SC 378 the court directed various steps for extending the benefit of Article 39A to under trial prisoners. Various other such decisions can be cited.
With respect, I am of the opinion that these decisions require reconsideration as Article 37 becomes redundant and nugatory if Directive Principles are made enforceable in this indirect way.