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Waste Management In India: An Overview

An inevitable consequence of development and industrial progress is generation of


waste. Therefore, efficient waste management is a matter of international concern and
countries have set up robust regulatory waste management regimes for balancing the
objectives of development and environment sustainability. In India, the National
Environment Policy, 2006 while suggesting measures for controlling various forms of
environmental pollution lays emphasis on the need for collection and treatment systems
for recycling wastes and devising measures for environmentally safe disposal of
residues.1 In India, waste management is governed by various sub-ordinate legislations
and the Ministry of Environment, Forest and Climate Change, Government of India
("MoEF") in conjunct with State Pollution Control Boards of different states ("SPCB")
administer the gamut of waste management regulations. This bulletin aims at providing
an overview of the various rules governing waste management in India and the issues
faced in their compliance.
1. Regulatory Regime for Waste Management

Indian waste management rules are founded on the principles of "sustainable


development", "precaution" (measures should be taken to avoid environmental
degradation and hazards) and "polluter pays" (polluter must bear costs for damages
and harm caused to environment by his own acts). These principles form an integral
part of Indian environmental law jurisprudence, as observed by the Supreme Court of
India in various decisions.2 These principles mandate companies and industrial units to
act in an environmentally accountable and responsible manner and for restoring the
balance, if the same has been disrupted by their business processes. Bearing the
essence in mind and the increased levels of waste generation as a by-product of
development, various sub-ordinate legislations for regulating the manner of disposal
and dealing with generated waste are made by MoEF under the umbrella law of
Environment
Protection
Act,
1986
("EPA").
Section 6 empowers MoEF to make rules on a wide array of issues such as standards for
ensuring environmental soundness, allowable limits for emission of environmental
pollutants, manner of dealing with hazardous substances, location of industries and
their functioning, and measures for prevention of environmental accidents and hazards.
Specific forms of waste are the subject matter of separate rules and trigger separate
compliances, mostly in the nature of authorizations, maintenance of records, and
adequate disposal mechanisms. Some rules have specific consequences for breach,
while in case of some, the general penalty under EPA applies which involves
imprisonment of person-in-charge (director, manager, officer of a company with whose
consent or connivance the breach occurred) up to 5 years and/or fine up to INR 100,000
(US$ 1574).3 A brief overview of the various rules is provided below.
1.1 Bio-medical Waste (Management and Handling) Rules, 1998

The Bio-medical Waste (Management and Handling) Rules ("BMW Rules") regulate the
manner of disposal of bio-medical wastes ("BM Waste") and provide a detailed
framework for the processes and mechanisms to be followed for their effective disposal.
BM Waste means any waste generated in health care processes like diagnosis,
treatment or immunisation of human beings or animals, research activities concerning
production or testing of 'biological'4,5 Schedule I further provides categories of BM

Waste such as human anatomical, animal, microbiological and biotechnology, discarded


medicines, cytotoxic drugs, incineration ash, chemical related waste. The BMW Rules
are applicable to a wide array of institutions such as hospitals, nursing homes, clinics,
dispensaries, veterinary institutions, animal houses, pathological laboratories, and blood
banks.6 Rule 8(1) requires every occupier7 of an establishment generating, or dealing in
BM Wastes in any other manner, and of a treatment facility to make an application for
authorization from SPCB. The authorization granted is for 3 years after which it must be
renewed. As per the BMW Rules, every occupier must take all necessary steps to ensure
that BM Waste is (i) handled in a manner not causing any adverse effect to human
health and environment, (ii) segregated in containers at point of generation, (iii)
handled and disposed off in accordance with prescribed standards. Further, as per Rule
5(2), all covered institutions are mandated to either set up treatment facilities like
incinerator, autoclave, microwave system, or to ensure that all BM Waste is treated at a
common waste treatment facility. An annual return has to be sent in prescribed format
by January 31 to SPCB providing details of categories and quantities of BM Waste
handled. There is no specific penalty provided and hence, non-compliance will invoke
general penalty under EPA i.e. imprisonment of occupier up to 5 years and/or fine up to
INR 100,000 (US$ 1574).
1.2 The Batteries (Management and Handling) Rules, 2001

The Batteries (Management and Handling) Rules ("Batteries Rules") was notified to
effect a regulatory mechanism for dealing in and disposal of used lead acid batteries
and their components. The Batteries Rules apply to every manufacturer, importer,
reconditioner, assembler, dealer, recycler, auctioneer, bulk consumer (like departments,
organisations purchasing more than 100 batteries) and consumer.8 The scope of duties
of each type of entity is provided in detail to ensure collection, recycling, transportation
and sale of batteries. For instance, Rule 10 mandates that all consumers deposit used
batteries with dealer, manufacturer, importer, assembler, recycler, re-conditioner or
designated collection centres. Further, bulk consumers are required to file half-yearly
returns with SPCB. Rule 6 requires that for importing batteries from other countries for
recycling in India, prior customs clearance must be obtained. Additionally, import of
batteries will be allowed only upon producing valid registration with Reserve Bank of
India and MoEF and providing an undertaking in prescribed format along with a copy of
the latest half-yearly return. Noncompliance with the BMW Rules also attracts
punishment under the EPA whereby the person-in-charge may be imprisoned for up to 5
years and/or fined up to INR 100,000 (US$ 15574).
1.3 The E-waste (Management and Handling) Rules, 2011

The E-waste (Management and Handling) Rules, 2011 ("E-waste Rules") aim at putting
in place an environmentally sound e-waste management system9 by regulating issues
of disposal, import and recycling of e-wastes. The E-waste Rules apply to every
producer, consumer or bulk consumer (including factories under Factories Act) involved
in the manufacture, sale, purchase, and processing of electrical and electronic
equipment or components, along with all collection centers, dismantlers and recyclers
of e-waste.10 E-waste is defined under Rule 3(k) to mean waste electrical and electronic
equipment, in whole or part or as rejects in the manufacturing and repair process which
are discarded. As per Rule 4, the producer of electrical and electronic equipments must
obtain authorization from SPCB, and is responsible for collection of e-waste generated in
the manufacturing processes or after end-of-life as part of extended producer
responsibility11, setting-up collection centres, financing costs involved for recycling,

creating awareness, and maintaining records and filings. The E-waste Rules also
delineate the responsibilities of collection centres, consumers, bulk consumers,
dismantlers and recyclers. The rules also provide for the manner of storage,
transportation, recycling of e-wastes, procedure for obtaining registration, maintaining
of records, etc. Non-compliance with the provisions of E-waste Rules may result in
cancellation or suspension of the authorization.
1.4 The Plastic Waste (Management and Handling) Rules, 2011

The Plastic Waste (Management and Handling) Rules, 2011 ("PWM Rules") set up a
regulatory framework for manufacture, usage and recycling of plastic bags to ensure
management of plastic waste. Plastic waste means any plastic product such as carry
bags, pouches, etc. which has been discarded after use or end-of-life.12 The rules are
applicable to all manufacturers, stockists, distributors, retailers and users of plastic
products. Rule 9 mandates every manufacturer of plastic carry bags, multilayered
pouches or sachets and every recycler to seek registration with SPCB. Such registration
is valid for a period of 3 years. Further, in order to ensure that price is paid for usage of
plastic, Rule 10 states that no retailer can provide plastic carry bags free of cost.
Further, the PWM Rules detail aspects of plastic bags such as thickness, colour,
classification into virgin or recyclable or compostable plastics, and responsibilities of
municipal authorities. There is no specific penalty provided for non-compliance and
thus, penalty under EPA will apply as per which the person-in-charge may be imprisoned
for up to 5 years and/or fined up to INR 100,000 (US$ 15574).
1.5 The Hazardous Wastes
Movement) Rules, 2008

(Management,

Handling

and

Trans-boundary

The Hazardous Wastes (Management, Handling and Tran- boundary Movement) Rules,
2008 ("HWM Rules") were framed for regulating generation, storage, reuse, recycling,
import, transportation and treatment of hazardous wastes. India signed and ratified the
Basel Convention, 1992 dealing with transboundary movement and disposal of
hazardous waste. The restrictions on cross-border transportation of hazardous waste for
purposes of recycling as provided in the Basel Convention are incorporated in the HWM
Rules. Rule 2(l) defines hazardous waste as any waste which by virtue of its physical or
other characteristics (described as chemical, toxic, inflammable, reactive, explosive,
etc.) causes or can cause danger to health or environment, either standalone or in
combination with other substances. A list of processes generating hazardous waste is
identified in Schedule I which inter-alia includes industries engaged in petro-chemicals,
oil & gas, petroleum, mines and minerals, zinc, copper, lead based production, textiles,
steel, asbestos, electronic, tannery, etc. Every occupier of a factory under Rule 5(1) is
required to obtain authorization from SPCB, and will be responsible for safe and
environmentally sound handling of hazardous wastes generated in the establishment.
As such it is mandated that every occupier must (i) sell hazardous waste only to a
registered recycler, (ii) transport such waste in the manner prescribed, (iii) prevent
accidents, and (iv) increase awareness.13 Further, the occupier has to file annual
returns and maintain records regarding generation of hazardous waste in prescribed
forms.
Hazardous waste treatment is a flourishing industry in India and large quantities of such
waste are imported for recycling and treatment. With the objective of regulating illegal
traffic of hazardous wastes, it is provided under Rule 17 that prior permission of Central
Government must be obtained for importing such waste and further, the import must

conform to the shipping details. In the event that the permission is obtained through
fraudulent means or the import results in dumping of waste in breach of Basel
Convention and the general principles of international environmental law (such as
sustainable development), inference of illegal traffic would be drawn. The rules provide
for detailed responsibilities for the concerned parties with respect to recycling, storing,
importing, exporting, transporting and labeling of hazardous waste. Non-compliance
vests SPCB with the power to cancel and suspend the authorization issued.
2. Issues faced by industries

Various practical problems emerge in the implementation of these rules. The applicable
law is spread over a number of rules. These rules mandate separate authorizations for
each scenario. It would have been far easier to adhere with conditions and comply with
applicable law, if a unified legislation was notified and requirement for a single license
for disposal of different kinds of wastes was put in place. Another issue faced by
industrial units is the unreasonably long time taken by SPCB and its officials to issue or
renew authorizations. Once the application is made, there is no mechanism through
which status of processing of applications can be tracked. More often than not,
facilitatory payments are resorted to obtain permits and this acts as a major
disincentive. Further, there is lack of predictability regarding the regulatory approach of
various SPCBs resulting in speculative risk assessment. Large part of inspection by SPCB
is aimed at big industrial units who are put under constant scrutiny while small and
medium enterprises are left to function in a lackadaisical manner. There is no uniform
set of conditions which are imposed under authorizations for all categories of entities
and this results in absence of a nationwide monitoring mechanism for compliances.
There are no reliable statistics on the exact number of prosecutions and revocations of
authorizations, although generally industry intensive states are more proactive in
enforcing the legal mandate. There is also a lack of professional environmental audit
firms specialising in risk assessment involved in setting up business units at particular
places. These all contribute to invoke scepticism in investors. Furthermore, maintenance
of records and filings with SPCB are yet to be adapted into an IT enabled system and the
physical maintenance becomes a mammoth task due to the sheer volume.
Conclusion
There is an increased focus from regulators towards the need for sustainable
environment and the same is evidenced from the new Companies Act which requires
certain companies to compulsorily carry out corporate social responsibility activities,
including environmental development. In order to avoid adverse consequences such as
revocation of authorization or prosecution, it is advisable that periodic internal audits
and checks are conducted for identifying non-compliances and addressing them
efficiently. Further, compliance with applicable environmental laws works to build brand
image and product value, for acting in an environmentally responsible manner.
Role of Judiciary In Strengthening PIL

In India, the Supreme Court took the lead by allowing volunteer social activists - lay and
legal, to represent the interests of the poor in judicial proceedings. By expanding the
doctrine of locus standi in filing the petition and creating epistolary jurisdiction that
enabled it to treat a letter written on behalf of a disadvantaged person as a petition and
examine
the
merits
of
the
grievances.

In India judicial activism was made possible by PIL (Public Interest Litigation). Generally
speaking, before the Court takes up a matter for adjudication, it must be satisfied that
the person who approaches it has sufficient interest in the matter. It was made so in
favour of social action and the court accepts its validity and steps in to set things right.
Ideologically, such litigation and judicial intervention born of it has transformed the
classical liberal rights model enshrined in the Constitution into a paradigm provided
rights. Undoubtedly, such litigation has provided an ordinary man an access to the
apex
court
of
the
country.
It has in a way democratised the judicial process. Furthermore, the PIL has contributed
to the rise of a form of judicial scrutiny of each and every governmental institution
ranging from hospitals, prisons, manufacturing units covering issues of health,
environment,
safety,
security,
privacy
and
welfare,
etc.
Judicial activism has been a very frequent and common phenomenon during one and a
half decade. It is said to have been born in India in 1986. Its credit goes to Justice P.N.
Bhagwati who introduced the tradition of hearing on PIL even on a postcard. Justice
Bhagwati has clearly stated, The Supreme Court has adopted a pro-active approach for
the last two years, particularly, having regards to the peculiar socio-economic
conditions prevailing in the country. Thus, judicial activism was born out of a public
litigation appeal. Judicial activism is developed in each and every aspect of life,
including social, economic, political, religious, educational, etc. Undoubtedly, it has
strengthened
the
faith
of
masses
in
the
judiciary
of
the
country.
Objective:
The important object of Public Interest Litigation is to safeguard the Public interest,
Human Rights and protect constitutional and legal rights of disadvantaged and weaker
section
of
the
society.
Thus, the dominant object is to ensure observance to the provisions of the constitution
and the other laws. It is essentially a co-operative or collaborative effort on the part of
petitioner, the state, public authority and the court to secure observance of the
constitutional or legal rights, benefits and privileges conferred upon the weaker sections
of the society.Public Interest Litigation is relating to Human Rights, Labour, Prisoners
and
Environmental
Protection.
Public Interest Litigation is a device by which public participation in judicial review of
administrative action is assured, and it also has the effect of making judicial process
little
more
democratic.
The members of the public by filing a PIL are entitled to and seek enforcement of public
duty and observance of the constitutional law or legal provisions. Such a litigation can
be initiated only for redressal of a public injury, enforcement of a public duty or
vindicating interest of public nature and it is necessary that the petition is not filed for
personal gain or private motive or for other extraneous consideration and is filed bona
fide
in
public
interest.

Intervention of the courts may be sought by way of PIL in cases where the statutory
provisions have arbitrarily and irrationally overlooked the interests of a significantly
affected group that would otherwise suffer in silence. Public interest may demand
judicial intervention in cases where the existing rules and standards are not complied
with due to indifference towards a particular group, unjustly denying them any legal
entitlements or resulting in unfair and hostile treatment. Public Interest Litigation
provides a platform for projecting social values for those who do not have a formal
access
or
voice
in
the
policy-making
processes.
A PIL can be filed against a State or Central Government, Municipal Authorities, but not
any private party. However, a Private party can be included in the PIL as Respondent,
after making concerned state authority, a party.
Matters of Public Interest

The term Public Interest is not capable of precise definition and has not a rigid
meaning and is elastic and takes its colours from the statute in which it occurs, the
concept varying with the time and state for society and its needs. Thus, what is Public
Interest
today
may
not
be
so
considered
a
decade
later.
However, Public Interest can be said to mean those interest, which concern the public at
large. A subject, in which the public or a section of the public is interested, becomes one
of public interest. Public Interest is concerned with the welfare and rights of the
community
or
a
class
thereof./
The
matters
of
public
interest
generally
include:
#
Bonded
labour
matters,
#
Matters
of
neglected
children,
# Exploitation of casual labourers and non-payment of wages to them (except in
individual
cases),
# Matters of harassment or torture of persons belonging to Scheduled Castes,
Scheduled Tribes and Economically Backward Classes, either by co-villagers or by police,
# Matters relating to environmental pollution disturbance of ecological balance, drugs,
food adulteration, maintenance of heritage and culture, antiques, forests and wild life,
#
Petitions
from
riot
victims,
and
#
Other
matters
of
public
importance.
The question of infringements of public interest can also arise in cases
relating
to:
Constitutional
validity
of
legislation;
Excess of power by a public body or a quasi- public undertaking;
Breach of statutory provisions enacted for the benefit and protection of the public;

Public
nuisance;
and
Prevention of criminal offences, enforcement of mandatory public duties, and such
other
categories
as
recognized
by
law
or
judicial
decisions.

PILs are usually not allowed in criminal matters, because criminal litigation is exclusively
between state and respondent and nobody has right to interfere by way of PIL as it
would hamper course of justice and cause prejudice to accused denying them a fair
trial. Also, PIL are not entertained in service matters.
Method of Filing

A PIL can be filed in any High Court or directly in the Supreme Court. The conventional
method of moving a Court is by filing a plaint containing a detailed list of facts that are
necessary
for
deciding
the
case.
However, now the PIL has jumped over this structural barrier. The Supreme Court has
held that a PIL need not be rejected merely on the fact that it is not in the structural
form of a plaint. The Court can admit a PIL even if it is not made in the manner of a
formal plaint. The Court can initiate a PIL even on receiving a letter addressed to the
Court
whether
with
or
without
an
affidavit.
Once a PIL has been filed it cannot be subsequently withdrawn. The Court may also
proceed suo motto. This was laid down by the Supreme Court to ensure that there is no
vested interest of the people who initiate proceedings and that the cause for which the
PIL was initiated does not suffer.
Role of the Courts

The role of the courts has been fundamentally altered by adoption of the constitutional
norms in the governance of the country. Numerous constitutional and statutory
provisions have established governmental institutions regulating their conduct along
with that of commercial enterprises and citizens, in a wide range of subjects such as,
social welfare, industrial relations, consumer protection, improvement of environment
and protection of forests, industrial health, protection of monuments and places of
national
importance,
welfare
of
children
and
women.
The fundamental choice that faces the courts in dealing with the new laws and
institutions concerned with public rights and interests is of the role that judiciary should
play in the governance of the country as an important limb of the State. The question is,
should the judiciarys role be limited to preventing illegal encroachments on the rights
of private individuals by examining the extent of infringement of individual rights and
the regularity of law and administration only to that limited extent, or does its judicial
function include a constitutional duty to confine the legislative and executive organs of
the State within their powers in the interest of the public? Lord Denning regarded it as a
matter of high constitutional principle that if there is good ground for supposing that a
government department or a public authority is transgressing the law, or is about to
transgress it in a way which offends or injures thousands of subjects, then anyone of
them offended or injured can draw it to the attention of the courts of law and seek to
have the law enforced, and the courts in their discretion can grant whatever remedy is

appropriate.
The Judiciary, on the basis of the doctrine of checks and balances, has a major part to
play in curbing excesses of power by the legislature and by the executive. The question
for consideration by the court would be whether the action challenged is unlawful being
outside the ambit of the power conferred on the relevant state authority, or whether the
prescribed mandatory procedures have not been followed in the exercise of power, or
that an error of law is involved or that the principles of natural justice have not been
followed.
On the other hand, there are obvious limits to judicial expertise and to the information
upon which judges have to decide cases. The common law adjudicatory process is not
always the best way of tackling difficult issues of law and administration, and the costs,
delays, and possible injustices to others inherent in expanding the role in the
administrative process may more than outweigh any countervailing benefit. Also, Courtordered commissions of inquiry have often been adopted as means of finding out the
relevant facts, and the relief granted sometimes takes the form of a series of quasilegislative directives, ordering governmental agencies to carry out remedial
programmes and establishing monitoring procedures whereby the Court may review
progress.
The Role of judiciary in Environmental Protection

The Indian judiciary adopted the technique of public interest litigation for the cause of
environmental protection in many cases. The Supreme Court & High Courts shaded the
inhibitions against refusing strangers to present the petitions on behalf of poor &
ignorant individuals. The basic ideology behind adopting PIL is that access to justice
ought not to be denied to the needy for the lack of knowledge or finances. In PIL a
public spirited individual or organization can maintain petition on behalf of poor &
ignorant
individuals.
In most developing countries, the legal regime of environmental laws is weak and the
laws are difficult to enforce and sometimes ambiguous. Public interest litigation has
helped
bridge
this
gap.
Public interest litigation is important where the government is not willing to
promote/protect the environment. The government may not be willing to prosecute
those who violate environmental laws and at times the government is a violator of
environmental laws. In some jurisdictions an injunction can be brought to compel or
stop
the
government
from
degrading
the
environment.
Now judiciary plays the vital role in the protection of environment. One of the main
developments in the Indian Judiciary is the Public Interest Litigation (PIL). It is the new
jurisprudence and is called "Jurisprudence of Masses". It is started in the year 1970. Writ
petitions in the form of PILs have been accepted by the High Courts

under Article 20, Article 47, Article 32 is right to constitutional remedies and Article 226
(Power of High Courts to issue certain writs) of the IndianConstitution.
Relief: Grant of Remedies

Many statutes allow courts


circumstances. While many of
general law, such as, injunction
forms
of
reliefs,
for

to grant specific remedies in a wide variety of


these remedies are similar to those available in the
and declaratory relief, some statutes have created new
example
the
environment
protection
laws.

In proceedings relating to a matter arising under the Constitution or involving its


interpretation or arising under an enactment or are against the government or other
public authority, relief in PIL would be in the nature of a statutory remedy similar to a
remedy available on judicial review and prerogative writs, and by way of a declaration
or
an
injunction.
Litigation will only fall in the category of PIL if the remedies sought are in public in
nature such as the high prerogative writs. The petitioners may seek in a PIL a
declaration that a particular statue is unconstitutional or that a rule or regulation is
invalid. They may seek an injunction to restrain a public authority from acting in excess
of its statutory powers. In some cases, the court may appoint a committee, or
commissioner to look into the matter or it may also give final orders by way of direction
to
comply
within
a
stipulated
time.
Writs of prohibition and certiorari lie on behalf of any person who is a person aggrieved
and that includes any person whose interest may be prejudicially affected by what is
taking place. It does not include a mere busy body that is interfering in things, which do
not concern him; but it includes any person who has a genuine grievance because
something
has
been
done
which
affects
him.
The writ of mandamus is a judicial command compelling the respondent to perform its
duty. The order, however, cannot direct the manner in which the duty will be performed,
although the reasons given for the order will usually guide the concerned official. When
any order/direction in nature of judicial command is sought in a PIL, it is important for
the court to consider the nature of the duty and the persons to whom it is owed.
The writ of habeas corpus is a means of safeguarding individual liberty and it is a
remedy to secure release of a person wrongfully detained. It has always been accepted
that, anyone may seek the remedy when a person is held incommunicado.
The writ of quo warranto can be issued in PIL involving determination of the validity of
appointments to offices of a public nature and may be used, for instance, to test which
of
the
two
rival
claimants
is
the
lawful
appointee.
When a private individual wishes to bring an action for an injunction or declaration to
enforce public rights, the relief may be granted only if right of a class to which that

person

belongs

has

been

simultaneously

interfered

with.

Some
of
the
concerned
cases
are
as
follows:
As pointed out earlier the locus standi concept is completely different in Public Interest
Litigation.
The
Supreme
Court
in
the
case
of:
S.P. Gupta Vs. Union of India by a 7-judge bench spoke very lucidly and it may be
quoted: It must now be regarded as well-settled law where a person who has suffered a
legal wrong or a legal injury or whose legal right or legally protected interest is violated,
is unable to approach the court on account of some disability or it is not practicable for
him to move the court for some other sufficient reasons, such as his socially or
economically disadvantaged position, some other person can invoke the assistance of
the court for the purpose of providing the judicial redress to the person wronged or
injured, so that the legal wrong or injury caused to that person does not go unredressed
and justice is done to him." The tone and tenor of these words perfectly make it clear
that the one whose legal rights or legal interests are breached may not necessarily the
person
directly
invoking
the
assistance
of
the
court.
Peoples Union for Democratic Rights v. Union of India The court now permits
Public Interest Litigation or Social Interest Litigation at the instance of " Public spirited
citizens" for the enforcement of constitutional & legal rights of any person or group of
persons who because of their socially or economically disadvantaged position are
unable to approach court for relief. Public interest litigation is a part of the process of
participate justice and standing in civil litigation of that pattern must have liberal
reception
at
the
judicial
door
steps.
In the case of M.C Mehta V. Union of India In a Public Interest Litigation brought against
Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme
court held that petitioner although not a riparian owner is entitled to move the court for
the enforcement of statutory provisions,as he is the person interested in protecting the
lives
of
the
people
who
make
use
of
Ganga
water
Shriram Food & Fertilizer case through Public Interest Litigation directed the Co.
Manufacturing hazardous & lethal chemical and gases posing danger to life and health
of workmen & to take all necessary safety measures before re-opening the plant.
Conclusion
By concluding the project, in this manner, our judiciary has used the tool of PIL quite
effectively for the cause of environmental protection. But the judiciary has shown
wisdom in denying false petitions seeking to advance private interests through PIL as
evident from the decision of the Supreme Court. Hence, PIL has proved to be a great
weapon in the hands of higher courts for protection of environment & our judiciary has
certainly
utilized
this
weapon
of
PIL
in
best
possible
manner.
Public Interest Litigants, all over the country, have not taken very kindly to some of the
courts views talking about preventing unnecessary PILs by imposition of high costs and
compensation. Since it is an extraordinary remedy available at a cheaper cost to all

citizens of the country, it ought not to be used by all litigants as a substitute for ordinary
ones
or
as
a
means
to
file
frivolous
complaints.
However, now Public Interest Litigation does require a complete rethink and
restructuring as the overuse and abuse of PIL can only make it stale and ineffective.
There is a need for some strong measures to promote and protect the actual purpose for
which the PIL came into being, i.e., the enforcement of fundamental and other legal
rights of the people who are poor, weak, ignorant of legal redressal system or otherwise
in a disadvantageous position, due to their social or economic background
Constitutional philosophy of Writs: A detailed analysis

A person whose right is infringed by an arbitrary administrative action may approach


the Court for appropriate remedy. TheConstitution of India, under Articles 32 and 226
confers writ jurisdiction on Supreme Court and High Courts, respectively for
enforcement/protection of fundamental rights of an Individual. Writ is an instrument or
order of the Court by which the Court (Supreme Court or High Courts) directs an
Individual or official or an authority to do an act or abstain from doing an act.
Article 32(2) of the Constitution of India provides: The Supreme Court shall have power
to issue directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for
the
enforcement
of
any
of
rights
conferred
by
this
Part.
Article 32 is a fundamental right under Part -III of the Constitution. Under this Article, the
Supreme Court is empowered to relax the traditional rule of Locus Standi and allow the
public interest litigation (PIL) at the instance of public-spirited citizens. The Supreme
Court can provide relief to various types of litigants such as bonded labour, undertrial
prisoners, victims of police torture etc. The Supreme Court may also award exemplary
damages by exercising its power under Article 32 as it has imposed in Bhim Singhs and
Rudul
Shahs
cases.
Article 226(1) of the Constitution of India, on the other hand says, Notwithstanding
anything in Article 32, every High Court shall have powers, throughout the territories in
relation to which it exercise jurisdiction, to issue to any person or authority, including in
appropriate cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part
III
and
for
any
other
purpose.
As is clear from the bare language, this Article guarantees an individual to move
the High Court for enforcement of the fundamental rights as well as for any other
purpose also i.e. for enforcement of any other legal right. Article 226 confers wide
powers on the High Courts. It serves as a big reservoir of judicial power to control
administration. Its power under Article 226 cannot be curtailed by legislation. Thus
powers of High Courts conferred under Article 226 are wider as compared to powers

conferred

on

the

Supreme

Court

under Article 32

of

the Constitution of

India.

Both the Articles 32 and 226 provide five types of writs namely writ of habeas corpus,
mandamus, prohibition, certiorari and quo-warranto. These are known as prerogative
writs in English Law because they had originated in the Kings prerogative power of
superintendence over the due observance of law by his officers and tribunals. The
prerogative writs are extra-ordinary remedies intended to be applied in exceptional
cases
in
which
ordinary
legal
remedies
are
not
adequate.
Now, let us discuss the prerogative writs in detail:
A) Writ of Habeas Corpus:-

The expression Habeas Corpus is a Latin term which means to have the body. If a
person is detained unlawfully, his relatives or friends or any person can move the Court
by filing an application under Article 226 in High Court or under Article 32 in Supreme
Court for the writ of Habeas Corpus. The Court on being satisfied with the contents of
the application, issues the writ. This writ is in the nature of an order calling upon the
person who has detained another to produce the latter before the Court, in order to let
the Court know on what ground he has been confined and to set him free if there is no
legal justification for the confinement. The Court may also award exemplary damages.
In Bhim Singh Vs State of Jammu& Kashmir, AIR 1986 SC 494, the Honble Apex Court
awarded the exemplary damages of Rs.50,000/-(At that time this was a very significant
amount).
An application for habeas corpus can be made by any person on the behalf of the
prisoner/detenu as well as the prisoner/detenu himself. Even a letter to the judge
mentioning illegalities committed on prisoners in jail can be admitted. In Sunil Batra
Vs Delhi Administration, AIR 1980 SC 1579, a convict had written a letter to one of
the Judges of the Supreme Court alleging inhuman torture to a fellow convict. The late
justice Krishna Iyer treated this letter as a petition of habeas corpus and passed
appropriate orders. Courts can also act suo motu in the interests of justice on any
information received by it from any quarter/source. The general principle is that a
person illegally detained in confinement without legal proceedings is entitled to seek
the
remedy
of
habeas
corpus.
However, the writ of habeas corpus is not issued in the following cases:
(i) Where the person against whom the writ is issued or the person who is detained is
not
within
the
jurisdiction
of
the
Court.
(ii) To secure the release of a person who has been imprisoned by a Court of law on a
criminal
charge.
(iii) To interfere with a proceeding for contempt by a Court of record or by Parliament.
Thus writ of habeas corpus is a bulwark of personal liberty. I has been described as a
great constitutional privilege or first security of civil liberty. The most characteristic

element of the writ is its peremptoriness i.e. a speedy and effective remedy for having
the legality of detention of the person enquired and determined by the Court.
B) Mandamus:-

The expression Mandamus is a Latin term which means We Command. Mandamus is


a Judicial order issued in the form of a command to any Constitutional, Statutory or NonStatutory authority asking to carry out a public duty imposed by law or to refrain from
doing a particular act, which the authority is not entitled to do under the law. It is an
important writ to check arbitrariness of an administrative action. It is also called Writ of
Justice
Mandamus demands some kind of activity on the part of the body or person to whom it
is addressed. Thus, when a body omits to decide a matter which it is bound to decide, it
can be commanded to decide the same. Where the Government denies to itself a
jurisdiction which it has under the law or where an authority vested with the power
improperly refuses to exercise it, mandamus can be issued. Thus, mandamus will not be
issued unless the applicant has a legal right to the performance of legal duty of a public
nature and the party against whom the writ is sought is bound to perform that duty.
The rule of Locus Standi is strictly followed in while issuing writ of mandamus. The
petitioner has to prove that he has a right to enforce public duty in his favour. The
petitioner can approach the High Court or Supreme Court for issuing the writ of
mandamus
on
the
following
grounds:(i)
(a)
(b)

Error
Lack
Excess

of
of
of

jurisdiction;
jurisdiction
jurisdiction

(ii)
Jurisdictional
facts;
(iii) Violation of the principles of natural justice i.e. principles of Rule against bias and
Rule
of
Audi
alterem
partem;
(iv)
Error
of
law
apparent
on
the
face
of
record
(v)
Abuse
of
jurisdiction
It is a discretionary remedy and the High Court may refuse to grant mandamus where
an alternative remedy is available for the redressal of the injury complained of. In the
matter of enforcement of fundamental rights, however, the question of alternative
remedy does not weigh so much with the Court since it is the duty of the High Court or
the Supreme Court to enforce the fundamental rights. In India, mandamus will lie not
only against officers who are bound to do a public duty but also against the Government
itself as Article 226 and 361 provided that appropriate proceedings may be brought
against the Government concerned. This writ is also available against inferior Courts or
other Judicial bodies when they have refused to exercise their jurisdiction and thus to
perform
their
duty

Further, Mandamus will not be granted against the following persons:


(i) The President or the Governor of a State, for the exercise and performance of the
powers and duties of his Office or for any act done or purporting to be done by him in
the
exercise
and
performance
of
those
powers
and
duties.
(ii) Mandamus does not lie against a private individual or body whether incorporated or
not except where the State is in collusion with such private party, in the matter of
contravention of any provision of the Constitution or a Statute or a Statutory instrument.
(iii) It will not lie against the State legislature to prevent from considering enacting a law
alleged
to
be
violative
of
constitutional
provisions.
(iv) It will not lie against an inferior or ministerial officer who is bound to obey the orders
of
his
superiors
Thus, Writ of Mandamus is a general remedy whenever justice has been denied to any
person.
C) Prohibition:-

The expression prohibition literally means to prohibit. The Writ of Prohibition is a


Judicial order issued by the Supreme Court or a High Court to an inferior Court or quasijudicial body forbidding the latter to continue proceedings therein in excess of its
jurisdiction or to usurp a jurisdiction with which it is not legally vested. Thus, object of
the writ is to compel inferior courts to keep themselves within the limits of their
jurisdiction.
Earlier, this writ was used to issue only to judicial and quasi-judicial bodies. But such
requirement is no longer valid. With the expanding dimensions of natural justice and the
requirement of fairness in administrative functions, the rigidity about prohibition has
been liberalized. This writ can now lie to anybody, irrespective of the nature of function
exercised by it, if any of the grounds on which the writ is issued is present.
The
(i)
(ii)
(iii)
(iv)

writ

of prohibition can
Absence
or
Violation
of
the
Unconstitutionality
Infraction

be

issued on the following grounds:


Excess
of
jurisdiction;
principles
of
natural
justice;
of
a
Statute;
of
Fundamental
Rights

Thus, writ of prohibition is available during the pendency of the proceedings and before
the order is made. The object is to secure that the jurisdiction of an inferior court or
tribunal is properly exercised and that it does not usurp the jurisdiction which it does not
possess.
D) Certiorari:-

The expression certiorari is a Latin word which means to certify. This writ confers
power on the Supreme Court and High Courts to correct illegality of their decisions.
Certiorari is a judicial order issued by the Supreme Court under Article 32 and/or by
the High Court under Article 226 of the Constitution to an inferior Court or quasi-judicial

or any administrative body to transmit to the Court of records of proceedings pending


therein for scrutiny and decide the legality and validity of the orders passed by them. If
the
decision
is
bad
in
law,
it
is
quashed.
The conditions necessary for the issue of the writ of certiorari are:(i)
Any
body
of
persons;
(ii)
Having
legal
authority;
(iii)
To
determine
questions
affecting
the
rights
of
subjects;
(iv)
Having
the
duty
to
act
judicially;
(v)
Act
in
excess
of
legal
authority
The
(a)
(i)
(ii)
(b)
(d)
(e)

grounds

on

Error
of
Violation

which the writ of certiorari may be issued are:


Error
of
Jurisdiction
Lack
of
jurisdiction
Excess
of
jurisdiction
Abuse
of
jurisdiction
law
apparent
on
the
face
of
the
record
of
principles
of
natural
justice

The purpose of the writ of certiorari is not only negative in the sense that it is used to
quash an action but it contains affirmative action as well. It is preventive as well as
curative in nature. The power of judicial review is not restricted where glaring injustice
demands
affirmative
action.
Case study:- In A.K. Kripak Vs Union of India, AIR 1970 SC 150, the Supreme Court
issued the writ of certiorari to quash the selection list of the Indian Forest Service on the
ground that one of the selected candidates was the ex-officio member of the selection
committee.
E) Writ of Quo Warranto:- The Writ of Quo Warranto questions the title as to the
holder of an office. The term Quo Warranto means what is your authority It is a
judicial order asking a person, who occupies public office, to show by what authority
s/he holds the office. If it is found that the holder of the office has no valid title, then this
writ
is
issued
to
him
to
oust
from
the
office.
Thus writ of Quo Warranto is a mode of judicial control in the sense that the proceedings
review the actions of the administrative authority which appointed the person. The writ
is issued to the person ousting him from holding a public post to which he has no right.
It is used to try the civil right to a public post. Accordingly, the use of the writ is made in
cases of usurpation of a public office and removal of such usurper. Conversely, it
protects citizen from being deprived of public office to which he may have a right. A
petition for the writ of Quo Warranto can be filed by any person though he is not an
aggrieved person.
The conditions necessary for the issue of a writ of Quo Warranto are:

(i) The office must be public and it must be created by a statute or by the constitution
itself.
(ii) The office must be a substantive one and not merely the function or employment of
a
servant
at
the
will
and
during
the
pleasure
of
another.
(iii) There has been a contravention of the Constitution or a statute or statutory
instrument,
in
appointing
such
person
to
that
office.
The fundamental basis of the proceeding of Quo Warranto is that the public has an
interest to see that an unlawful claimant does not usurp a public office. It is, however, a
discretionary remedy which the Court may grant or refuse according to the facts and
circumstances of each case. Thus, it may be refused when it is vexatious or where it
would be futile in its result or where the petitioner is guilty of laches or where there is
an alternative remedy for ousting the usurper. In P.L. Lakhan Pal Vs A.N.Ray, AIR 1975
Del.66, the Delhi High Court refused to issue writ against Chief Justice of India, Justice
Ray because it would be futile in its result as the three Judges senior to him already
resigned. Justice Ray becomes the seniormost and as such can be re-appointed even it
were assumed that the appointment of Chief Justice of India should be on the basis of
seniority
rule.
Conclusion: Thus it is clear that vast powers are vested with the Judiciary to control an
administrative action when it infringes fundamental rights of the citizens or when it
goes beyond the spirit of Grundnorm of our country i.e Constitution of India. It ensures
the Rule of Law and proper check and balances between the three organs of our
democratic system.The philosophy of writs is well synchronized in our Constitutional
provisions to ensure that rights of citizens are not suppressed by an arbitrary
administrative or Judicial action.
Public Interest Litigation - A Critical Evaluation
Abstract

Public Interest Litigation (PIL) has a vital role in the civil justice system in that it could
achieve those objects which could hardly be achieved through convictional private
litigation. PIL, for instance, offers a ladder to justice to disadvantaged section of society,
provides an avenue to enforce diffused or collect rights, and enables civil society to not
only spread awareness about human rights but also allows them to participate in
government decision making. PIL could also contribute to good governance by keeping
the
government
accountable.
Public interest litigation has historically been an innovative judicial procedure for
enhancing the social and economic rights of disadvantaged and marginalized groups in
India. In recent years, however, a number of criticisms of public interest litigation have
emerged, including concerns related to separation of powers, judicial capacity, and
inequality. These criticisms have tended to abstraction, and the sheer number of cases

has complicated empirical assessments. This paper finds that public interest litigation
cases constitute less than 1 percent of the overall case load. The paper argues that
complaints related to concerns having to do with separation of powers are better
understood as criticisms of the impact of judicial interventions on sector governance. On
the issue of inequality, the analysis finds that win rates for fundamental rights claims
are significantly higher when the claimant is from an advantaged social group than
when he or she is from a marginalized group, which constitutes a social reversal, both
from the original objective of public interest litigation and from the relative win rates in
the
1980s.
Introduction
One of the overarching aims of law and legal systems has been to achieve justice in the
society and public interest litigation (PIL) has proved to be a useful tool in achieving this
objective. For example, PILin which the focus is not on vindicating private rights but
on matters of general public interestextends the reach of judicial system to
disadvantaged sections of society. It also facilitates an effective realization of collective,
diffused rights for which individual litigation is neither practicable nor an efficient
method.
Nevertheless, PIL has generally received peripheral attention in debates on civil justice
reforms around the world.1 This is not to suggest that the evolution of PIL in various
jurisdictions
has
missed
the
attention
of
scholars.2
To continue this tradition, this article aims to critically examine the evolution and
development of PIL in Indian Judicial System. The main objective of this examination is
to highlight the dark side of PIL so that other jurisdictions could learn useful lessons
from the Indian experience. The choice of Indiaa democracy of over 1 billion people
governed by a common law system, rule of law and independent judiciaryfor learning
lessons in the area of PIL is an obvious one given the contribution of India to the PIL
jurisprudence.
Although this article aims to highlight the dark side of PIL, it will not be fair if the
positive contributions of PIL are not acknowledged. After all, the dark side could only be
discussed in the backdrop of a bright side. The section on Positive contributions,
therefore, briefly highlights the positive contributions that the PIL project has made
within and outside India. The dark side then offers critical insights into various aspects
of PIL, which together constitute its dark side. Here again, before mapping these facets
of the dark side, I will take readers to a quick tour of some recent PIL cases in India. The
conclusion will sum up the discussion and also throw some light on how other
jurisdictions could benefit from the Indian PIL experience.
Public Interest Litigation Defined

The phrase Public interest Litigation relates to the very term Public Interest. Generally
the litigation by someone for the interest of the public is the Public Interest Litigation. It
does not mean that mere a stranger can move to court for a Public Interest litigation

and

thats

why

it

is

carving

need

to

define

Public

Interest.

In Strounds Judicial Dictionary3, Public Interest is defined as, a matter of public or


general interest does not mean that which is interesting as gratifying curiosity or a love
of information or amusement; but that in which a class of the community have a
pecuniary interest, or some interest by which their legal rights or liabilities are affected.
Much wider definition has been given by the American Bar Association. According to this
definition,
Public
Interest
Law
Means;
Legal services provide without fee or a substantially reduced fee which falls into one or
more
of
the
following
areas:
1)
Property
Law;
2)
Civil
Rights
Law;
3)
Public
Rights
Law;
4)
Charitable
Organization
Representation;
5)
Administration
of
Justice.4
In fact, a PIL is generally instituted for the enforcement of the Constitutional and Legal
Rights of the poor and Excluded groups as well as ensuring accountability of concerned
government and public authorities towards issues of public importance. Persistent
efforts by the NGOs and social action groups through PIL has, in many occasions,
prompted the High Court Division to issue directives and orders that in turn addressed
the socio-economic concerns of the poor and the marginalized groups.
Historical Background of the Origion of Public Interest Litigation

The initial inspiration for PIL came from the American concept of Public Interest
Litigation and the class actions of the 1960s.5 In U.S.A. it is called the Public Interest
Law whereas in the Indian Subcontinent it is known as Public Interest Litigation. In
fact, it is the U.S.A., the real pioneer in the path of PIL which influenced some PIL activist
of some countries of the world to work for PIL in 1960s and 70s.6 Commentators
frequently date the emergence of Public Law Litigation (in USA Public Interest Litigation
is named as Public Law Litigation) in the U.S.A. to the celebrated campaign that resulted
in the decision in Brown Vs. Board of Education,7 in which U.S. Supreme Court declared
unconstitutional a ststes segregation of public school students by race. Brown includes
many procedural features since associated with Public Law Litigation: the defendant was
a public institution; the claimants comprised a self-constituted group with membership
that changed over time; relief was prospective, seeking to reform future action by
government agents; and the judge played a leadership role complemented by the
parties effort at negotiation. The literature distinguishes this form of litigation from the
classical model of adjudication, which is conceptualized as a private, bipolar dispute
marked by individual participation and the imposition of retrospective relief involving a
tight
fit
between
right
and
remedy.8
Brown provided inspiration to a generation of lawyers who saw law as a source of

liberation as well as transformation for marginalized groups. Courts, mostly federal but
state as well, became involved in a broad range of social issues, including voting and
apportionment, contraception and abortion, employment and housing discrimination,
environmental regulation, and prison conditions. Prison reform litigation illustrates the
extent of the judiciarys involvement in Public Law cases: after years of taking a hands
off approach to prison conditions, courts imposed remedial decrees in 48 of the
nations 53 jurisdictions (the 50 states, the District of Columbia, Puerto Rico and the
Virgin Island).9
Evolution of Public Interest Litigation In India

It should be noted at outset that PIL, at least as it had developed in India, is different
from class action or group litigation. Whereas the latter is driven primarily by efficiency
consideration, the PIL is concerned at providing access to justice to all societal
constituents. PIL in India has been a part of the constitutional litigation and not civil
litigation.10 Therefore, in order to appreciate the evolution of PIL in India, it is desirable
to have a basic understanding of the constitutional framework and the Indian
Judiciary.11
After gaining independence from the British rule on August 15, 1947, the people of India
adopted a Constitution in November 1949 with the hope to establish a sovereign
socialist secular democratic republic.12 Among others, the Constitution aims to secure
to all its citizens justice (social, economic and political), liberty (of thought, expression,
belief, faith and worship) and equality(of status and of opportunity).13 These aims were
not merely aspirational because the founding fathers wanted to achieve a social
revolution through the Constitution.14 The main tool employed to achieve such social
change were the provisions on Fundamental Rights (FRs) and the Directive Principles of
State Policy (DPs). Which Austin Described as the conscience of the Constitution.15 In
order to ensure that FRs did not remain empty declarations, the founding fathers made
various provisions in the Constitution to establish an independent judiciary. As we will
see below, provisions related to FRs, DPs and independent judiciary together provided a
firm
constitutional
foundation
to
the
evolution
of
PIL
in
India.
Part III of the Constitution lays down various FRs and also specifies grounds for limiting
these rights. As a right without a remedy does not have much substance,16 the remedy
to approach the Supreme Court directly for the enforcement of any of the Pt III rights
has also been made a FR.17 The holder of the FRs cannot waive them.18 Nor can the
FRs be curtailed by an amendment of the Constitution if such curtailment is against the
basic
structure
of
the Constitution.19
Some of the Some of the FRs are available only to citizens20 while others are available
to citizens as well as non-citizens,21 including juristic persons. Notably, some of the FRs
are expressly conferred on groups of people or community.22 Not all FRs are guaranteed
specifically against the state and some of them are expressly guaranteed against nonstate bodies.23 Even the state is liberally defined in art.12 of the Constitution to
include,

the Government and Parliament of India and the Government and the legislature of
each of the states and all local or other authorities within the territory of India or under
the
control
of
the
Government
of
India.
The expression other authorities has been expansively interpreted, and any agency or
instrumentality
of
the
state
will
fall
within
its
ambit.24
The DPs find a place in Pt IV of the Constitution. Although the DPs are not justiciable,25
they
are,
nevertheless fundamental in the governance of the country and it shall be the duty of
the
state
to
apply
these
principles
in
making
laws.24
After initial deviation,27 the Supreme Court accepted that FRs are not superior to DPs
on Account of the latter being non-justiciable: rater FRs and DPs are complementary and
the former are a means to achieve the goals indicated in the latter.28 The issue was put
beyond any controversy in Minerva Mills Ltd v Union of India where the Court held that
the, harmony and balance between fundamental rights and directive principles is an
essential feature of the basic structure of theConstitution.29 Since then the judiciary has
employed
DPs
to
derive
the
contents
of
various
FRs.30
The founding fathers envisaged the judiciary as a bastion of rights and justice.31 An
independent judiciary armed with the power of judicial review was the constitutional
device chosen to achieve this objective. The power to enforce the FRs was conferred on
both the Supreme Court and the High Courts32 the courts that have entertained all
the PIL cases. The judiciary can test not only the validity of laws and executive actions
but also of constitutional amendments. It has the final say on the interpretation of
the Constitution and its orders, supported with the power to punish for contempt, can
reach everyone throughout the territory of the country. Since its inception, the Supreme
Court has delivered judgments of far-reaching importance involving not only
adjudication of disputes but also determination of public policies and establishment of
rule of law and constitutionalism.33
Public Interest Litigation And Judiciary

A very interesting PIL relating to first ever strike by the judges of Punjab and Haryana
high court on 19.4.2004led the Supreme Court to strikingly contradictory stand. The PIL
was filed on the same day praying that the judges should return to their duties
immediately in public interest. In Vikas Vashisht v. Punjab and Haryana High Court3 a
division bench of the Supreme Court consisting of R.C. Lahoti CJ and G.P. Mathur J
dismissed a PIL on July 2004 on the ground that what purported to have been filed by
way of PIL was nothing more than a publicity interest litigation as it was filed on the
basis of a newspaper report. It was argued in this case thatproceeding on en masse
casual leave by 25 judges amounted to strike by the judges. In September 2004 in
S.S. Dahiya v. Punjab and HaryanaHigh Court35 a bench of S.N. Vairava and H.K. Sema JJ
held that the facts alleged by the petitioner were not based on newspaper report but on
the personal knowledge of the petitioner and it was genuine PIL and there was a need to

lay down guidelines pertaining to judicial propriety and hence this was a matter of
public interest. On 3.12.2004 the same bench dismissed the PIL as infructous. The
reason: the court realized only then that the judges had already resumed their duties on
20.4.2004, just a day after they went on en masse casual leave to protest against the
direction of their Chief Justice to desist from accepting any freebies such as membership
of a club. In its one para order, the Vairava bench said that the court had issued notice
on 26.4.2004 without noticing that the judges had already resumed their judicial
work.36
Before the judiciary a set of questions arises, such as; whether courts should be
involved in environmental, social, and economic matters at all: Are not the legislative
and executive branches better equipped to address these matters, and does not
judicial activism, precisely because the courts do not and cannot enforce many of
their broad directives in these areas, erode the legitimacy of the courts? Are not PIL
cases draining substantial resources from an already overburdened legal system in
which ordinary civil cases can languish in courts for many years? Since many PIL cases
are patently frivolous and many others never enforced, is not PIL a device for the
judiciary to expand its own powers and autonomy under the mantle of a popular social
justice agenda? A separate set of questions involves the beneficiaries of PIL: Do PIL
cases continue to benefit the poor and disadvantaged, or have not lifestyle issues and
middle class concerns become predominant in PIL cases? Are not judges manifestly less
disposed to the interests of the poor and marginalized than they were two decades ago,
during
the
heroic
years
when
PIL
originated?
These queries regarding PIL are fundamentally normative claims, and are based on
principled understandings of the role of judges and courts in Indias democracy. At the
same time, the validity of some of them rests on facts, albeit complex ones. For
instance, the challenge related to separation of powers raises questions about judicial
capacity critics charge that courts cannot monitor and supervise complex polycentric
disputes37, whereas others respond that they can, or at least as well as parliaments
can.38 The relative effectiveness of judicial supervision, if observed accurately and at
scale, could help resolve this disagreement, at least for a subset of cases and in certain
contexts. Similarly, whether or not PIL cases still address the concerns of the poor, and
whether decisions are as supportive of their interests as in the past, are empirical
questions. To date, the debate over PIL has largely been abstract (with some exceptions,
to be described below). It has helped generate a set of normatively significant
questions, but at this stage of the research cycle, empirical work may be more pressing.
This paper contributes to that task by assessing PIL with empirical data.
The next section of this paper analyzes the argument that PIL constitutes a case of
judicial overreach. The contention that PIL weakens policy formulation and
implementation in the legislative and executive branches is typically dressed up as a
separation of powers concern, but a more apt framework involves an assessment of the
impact of PIL on sectoral governance, which is fundamentally an empirical matter, not a
doctrinal one. The following section describes the charge that PIL favors middle class
interests rather than the concerns of the poor and marginalized. That section than

presents estimates, based on original data taken from Supreme Court records an online
legal database, to assess that claim.
1.1.Public Interest Litigation: Is The Judiciary Overreaching?

An old-fashioned view of legal rights holds that most social and economic matters do
not involve genuine right because they require positive action, not merely restraint, and
have no single, identifiable duty holder. Positive obligations, moreover, entail significant
expenditures that are the purview of the other branches of government. Courts,
therefore, should steer clear of the social, economic, and environmental concern at the
heart of PIL. More contemporary views39 hold that for their fulfillment all rights require
restraint, protection, and aid from the entity from whom rights are claimed, and that a
reasonably effective and well funded state is a sine qua non for all rights.40
Most of the criticisms of PIL in the Indian Courts have not taken this somewhat oldfashioned form perhaps became in a country where the scale of needs is so large it is
hard to say that social and economic priorities are less commanding that civil and
political ones. They have rather argued that the social and economic domain should be
largely the prerogative of the other branches of government, which are better equipped
to analyze, formulate, and implement complex policies, and that much of PIL is
inappropriate judicial activism or adventurism. For instance, in an assessment of the
activities of the Supreme Court in the Delhi Vehicular Pollution and Municipal Solid
Waste case, Rajamani admonishes that policy, environmental and social, must emerge
from a socio political process and must be considered in a legitimate forum not a judicial
one.41 Citing cases in which courts formulated explicit guidelines, such as cases
related to vehicular pollution, the management of the Central Bureau of Investigation,
adoption by foreign nationals, custodial torture, and sexual harassment, Desai and
Muralidhar note that while in some cases, the Court has expressed its reluctance to
step into the legislative field, in others it has laid down detailed guidelines and explicitly
formulated policy42 In their 2003 article, Rosencranz and Jackson welcome the
environmental and health impact of the Supreme Courts 2001 decision requiring the
Delhi government to convert its commercial vehicles to a fleet running on compressed
natural gas (CNG), but then plead for leadership on the part of the regulatory and
legislative authorities: Some of the roadblocks to CNG implementation could have been
avoided, or at least minimized, had the conversion been originally mandated through
the normal legislative process.43 Thiruvengadam documents a spate of similarly
motivated criticism of PIL as an incursion into lawmaking from sitting and former judges
on Indias Supreme and High Courts, including comments from Justice Hidyatullah in
1984, Justice Srikrishna in 2005, and, perhaps most intemperately, Justice Kaju in 2008,
who
said
PIL
has
developed
into
an
uncontrollable
Frankenstein.44
A motivation for some of this criticism is a suspicion that the courts have used their
post-Emergency popularity, to which PIL has significantly contributed, to expand their
own powers and shield themselves from scrutiny and accountability. To some, it appears
as though the courts may be spending time on frivolous and ineffectual PIL cases at the
expense of the real administration of justice, and choose to do so because PIL burnishes

their popularity. Reported instances of frivolous PIL include prayers to rename India
Hindustan, rename the Arabian Sea Sindhu Sagar, and replace the national anthem
for one offered by the petitioner (and partly sung before the Chief Justice).45 At the
same time, the systems of civil and criminal justice suffer enormous delays and
arbitrary
pre-trial
detentions.
These concerns are echoed widely enough that there is now visible a clear backlash
against this perceived usurpation of powers by the courts, including a bill tabled in the
Rajya Sabha in 1996 to regulate PIL, a 2007 statement by Prime Minister warning
against judicial overreaching46, recent calls from the bench to set parameters for PIL
(Times of India, December 12, 2007), and efforts to establish the National Judicial
Council, a body to investigate complaints against judges. Some of these complaints
involve corruption: there have been allegations that some 20% of Judges are corrupt.47
Related complaints include the use of the law of privileges and contempt on the part of
courts to shield themselves from criticism, resistance to efforts to require sitting judges
to disclose their financial assets, and the uncomfortably close relationship between
some members of the judiciary and the Bar.48 Roy goes so far as to assert that judicial
accountability is so low that we live in a sort of judicial dictatorship.49
A few comments about separation of powers are in order. First, policy formulation by the
courts or its agents is, to some extent, inevitable. Judicial review of any sort requires
ongoing commentary on laws and policies, including guidelines regarding their proper
content. Because dispute resolution entails an elaboration and application of the
normative structures of society as the necessary ground for the dispute resolvers
decision, judges inevitably involve themselves in rule making, which is a form of
lawmaking whether in common law or civil law jurisdictions.50 Courts have not
traditionally been significant actors in the area of social and economic policy; and
resistance to public interest litigation and the court directives it prompts in these areas
may stem more from the novelty of the phenomenon than from anything like a real
judicial dictatorship. Reluctance on the part of the Indian judiciary to be held
accountable for performance and probity is certainly problematic from the point of
view of democratic theory it limits the power of the people to review public action. The
expansion of judicial power in the area of social and economic concerns, on the other
hand, catalyzes legislative and executive activity more often than it paralyzes it. That is
because, as an empirical matter the world over, public interest litigation typically spurs
judicial dialogue with the other branches: rarely do courts issue all or nothing demands,
backed with common law contempt power or its civil law counterparts, in a way that
requires the state to restructure its policy framework. Courts decisions do not so much
stop or hijack the policy debate as inject the language of rights into it and add another
forum for debate.51 As Fredman puts it, PIL allows the judicial forum to become,
potentially, a space for democratic deliberation among equal citizens, rather than a
place of interest group bargaining, which prevails in the legislature.52
In addition, an important use of public interest litigation is to make public and scrutinize
hidden or obfuscatory information, including cost of potential social programs, which the
state and corporate entities on occasion have reasons to exaggerate or hide. In India,

PIL during droughts in Rajasthan and Orissa in 2001 disclosed the extent of unreleased
government grain stocks, and subsequent PIL disclosed that state governments could in
fact afford to widen several statutory food and nutrition programs, including the midday
meals scheme in schools, despite official protests to the contrary. In the Delhi vehicular
pollution debate, the Delhi Health Minister claimed that air pollution did not increase the
risks of heart or lung disease, the Delhi government said that the timely installation of
CNG stations would be impossible, the Ministry of Petroleum and Natural Gas argued
that CNG bus conversion would not be sustainable in the long run, producers of
commercial vehicles stated that the conversion to CNG was not economically
costeffective, and other argued that CNG is explosive. The court, largely by empowering
certain technical committees, played a significant role in helping to ascertain accurate
information on these issues. It was, moreover, not an instance of judicial fiat but rather
a judicial-executive branch collaboration: Government experts essentially became
advisors
to
the
Court
as
it
drove
policy
implementation
forward.53
The argument that PIL constitutes judicial overreach, resulting in poor or inefficient
decision making, is not really a separation of powers claim. The balance of power
among government organs, as Madison conceived it, was not primarily about a strict
separation of powers but the partial interpenetration of relatively autonomous and
balanced powers. (O'Donnell, 2003) In other words, the separation of powers was not
conceived as a design for the promotion of efficient decision making by preventing
undue encroachment from one institution upon the prerogatives of another, but rather a
check on the ability of any group or faction to dominate government from its enclave in
a specific organization. The doctrine of separation of powers seeks to accomplish this
precisely by opening certain governmental tasks to competing competences and
concurrent powers of review. Despite occasionally hyperbolic claims on the part of
critics, Indian judges and their professional social classes are not using the courts as a
staging ground to threaten the Indian state. There have been specific rulings, such as
Kesavananda Bharati or Advocates-on-Record, or the ruling on the Jharkhand legislative
procedures, in which courts assumed powers not delineated in the Constitution. Even in
those cases, it arguable that in so doing the Court restored a constitutional balance
because the executive and legislature had themselves been engaging in extraconstitutional
activities.
These criticisms regarding separation of powers are better cast as concerns related to
the impact of judicial intervention on sectoral governance. Does judicial involvement
through PIL improve state performance in a given sector. Is forest policy, for example,
more equitable, efficient, and effective as a result of court involvement? That is an
empirical question, but most treatments of the issue do not take the empirical challenge
seriously. (A. Rosencranz & Ll, 2008) believe that the Supreme Courts intervention
following the TN Godavaraman vs Union of India case (1996) hurts the process of
governance, but adduce little evidence about the capacity and authority of central and
state executive agencies prior to and after the courts assumption of powers. Writing in
2003 on the Delhi vehicular pollution case, Rosencranz and Jackson speculated that
strengthening the pollution control boards (PCBs), rather than Supreme Court action,
would seem to provide the most effective long-term solutions [to air pollution in India]

and worried that the Courts action seems likely to impede capacity building in the
pollution control agencies, and thereby to compromise the development of sustained
environmental management in India.54 This is a fundamentally an empirical claim, and
one can examine whether PCBs are weaker now than they were before the Court got
involved in the Delhi pollution case. A cursory review suggests that it is not obvious that
they are weaker the budget of the Central Pollution Control Board has nearly tripled
since the year of the Courts order in 2002, and a number of efforts are underway to
strengthen them and fill staffing vacancies in central and state PCBs.5 Another problem
with criticisms like these is that they compare an ideal or hypothetical legislative
intervention to a real judicial one when it is often the real-world failings of the other
branches that prompted litigation in the first place. Thiruvengadam describes the
deliberative failings of Indias Parliament, noting that of the total 36 Bills passed in
2008, 16 were passed in less than 20 minutes, most without any debate
whatsoever.55
Why do analysts tend to describe issues of sectoral governance with the language of
the separation of powers? The motivation stems in part from a belief, sometimes
inarticulate, that governance should look similar the world over. In this case, courts, in
order to be courts properly understood, must limit their tasks to interpreting laws,
rather than writing or enforcing them. But it is a mistake to speak of courts as such.
The task of judicial institutions depends on the way they interact with the other
institutions of their society. It is less useful to assess judicial activity against a
preconceived institutional design than to evaluate, using normative benchmarks, the
(positive or negative) contribution of courts to the key tasks of governance in any
specific sector.56 In the same way that careful studies of the institutional foundations of
economic growth in East Asia have challenged the rule of law orthodoxy, showing that
successful market-sustaining institutions need not take the specific form that courts,
corporate boards, and bureaucratic agencies have taken in, say, the United States or
the United Kingdom57, studies of public interest litigation should recognize that courts
may play a variety of roles in different settings. There is less institutional convergence
in the world than believed, and it is important not to confuse institutional function and
institutional
form
(emphasis
in
original).58
What, then, are the normative benchmarks that should be used to assess the
contribution, or lack thereof, courts toward sectoral governance? Those depend on the
sector, of course they would look different in health than in forestry. But, generalizing,
one can identify three key elements of governance for the broad category of tasks in
government service delivery: the capacity and authority of the organizations charged
with delivery or oversight, the availability of information and transparency regarding
service delivery, and state accountability for performance. An empirically minded
assessment of PIL in India, then, would take the form of a series of case studies based
on those normative benchmarks. The case studies would focus on these questions:
Did the capacity and authority of institutions tasked with addressing the social problems
increase
or
decline
as
a
result
of
PIL?
Was accurate information on sectoral concerns more widely available before or after

judicial
intervention?
Were mechanisms of accountability, including legal and hierarchical oversight, markets
and the power of actors to pursue their own interests, and social assessments of the
motives of public officials, functioning more effectively before or after judicial
intervention?
The Dark Side

PIL has, however, led to new problem such as an unanticipated increase in the workload
of the superior courts, lack of judicial infrastructure to determine factual matter, gap
between the promise and reality, abuse of power, friction and confrontation with fellow
organs of the government, and dangerous inherent in judicial populism.59 before
elaborating these problems, let me take to a quick tour of some recent PIL cases that
would
offer
an
indication
of
this
dark
side.
A
quick
tour
of
some
recent
PIL
cases
In the last three decades, the Indian Supreme Court and High Courts have been
approached through PIL to redress a variety of issues, not all of which related to alleged
violation of FRs. The judiciary, for instance, has addressed issues such as60: the
constitutionality of the Governments privatization61 and disinvestment policies,62
defacing of rocks by painted advertisements,63the danger to the Taj Mahal from a
refinery,64 pollution of reviers,65 relocation of industries out of Delhi,66 lack of access
to food,67 deaths due to starvation,68 use of environment-friendly fuel in Delhi buses69
and regulation of traffic,70 out of- turn allotment of government accommodation,71
prohibition of smoking in public places,72 arbitrary allotment of petrol outlets,73
investigation of alleged bribe taking,74 employment of children in hazardous
industries,75 rights of children and bonded labours,76 extent of the right to strike,77
right to health,78 right to education,79 sexual harassment in the workplace,80 and
female
foeticide
and
infanticide
through
modern
technology.81
Although a review of the above sample of PIL cases may surprise those who are not
familiar with PIL in India, it should be noted that in all the above cases the judiciary did
actually entertain the PIL and took these cases to their logical conclusion. But there
have been instances of more blatant misuse of the process of PIL. For instance, the
courts were approached to call back the Indian cricket team from Australia after the
controversial Sydney test match.82 PILs were initiated to regulate the treatment of wild
monkeys in Delhi and the practice of private schools to conduct admission interviews for
very
young
children.83
A PIL was also filed in the Supreme Court to seek ban on the publication of allegedly
obscene and nude photographs in newspapers.84 Some so-called publicspirited lawyers knocked at the door of the courts against: (i) Richard Geres public
kissing of an Indian actress, Ms Shilpa Shetty; (ii) an alleged indecent live stage show on
New Years Eve; and (iii) the marriage of former Miss World, Ms Aishwarya Rai, with a
tree
to
overcome
certain
astrological
obstacles
in
her
marriage.85

More recently, the PIL discourse was employed to request the Indian government to
send technical experts to work with the Nepal government in strengthening the
Bhimnagar barrage to prevent recurrence of flood86 and to challenge the constitutional
validity
of
the
IndoUS
civil
nuclear
agreement.87
The
Dark
Side
It seems that the misuse of PIL in India, which started in the 1990s, has reached to such
a stage where it has started undermining the various purpose for which PIL was
introduced. In other words, the dark side is slowly moving to overshadow the brighter
side
of
PIL
project.
Ulterior purpose: public in PIL stands substituted by private or publicity
One major rationale why the courts supported PIL was its usefulness in serving the
public interest. It is doubtful, however, if PIL is still wedded to that goal. As we have
seen above, almost any issue is presented to the courts in the guise of public interest
because of the allurements that the PIL jurisprudence offers (e.g. inexpensive, quick
response, and high impact). Of course, it is not always easy to differentiate public
interest from private interest, but it is arguable that courts have not rigorously
enforced the requirement of PILs being aimed at espousing some public interest. Desai
and
Muralidhar
confirm
the
perception
that;
PIL is being misused by people agitating for private grievances in the grab of public
interest and seeking publicity rather than espousing public causes. 88
It is critical that courts do not allow public in PIL to be substituted by private or
publicity
by
doing
more
vigilant
gate-keeping.
Inefficient
use
of
limited
judicial
resources
If properly managed, the PIL has the potential to contribute to an efficient disposal of
peoples grievances. But considering that the number of per capita judges in India is
mushLower than many other countries and given that the Indian Supreme Court as well
as High Court are facing a huge backlog of cases,89 it is puzzling why the courts have
not done enough to stop non-genuine PIL cases. In fact, by allowing frivolous PIL
plaintiffs to waste the time and energy of the courts, the judiciary might be violating the
right to speedy trial of those who are waiting for the vindication of their private interests
through
conventional
adversarial
litigation.
A related problem is that the courts are taking unduly long time in finally disposing of
even PIL cases. This might render many leading judgments merely of [an] academic
value.90 The fact that courts need years to settle cases might also suggest that
probably courts were not the most appropriate forum to deal with the issues in hand as
PIL.
Judicial
populism
Judges are human beings, but it would be unfortunate if they admit PIL cases on
account of raising an issue that is (or might become) popular in the society. Conversely,

the desire to become peoples judges in a democracy should not hinder admitting PIL
cases which involve an important public interest but are potentially unpopular. The fear
of judicial populism is not merely academic is clear from the following observation of
Dwivedi
J.
in
Kesavnanda
Bharathi
v
Union
of
India:
The court is not chosen by the people and is not responsible to them in the sense in
which the House of People is. However, it will win for itself a permanent place in the
hearts of the people and augment its moral authority if it can shift the focus of judicial
review from the numerical concept of minority protection to the humanitarian concept
of
the
protection
of
the
weaker
section
of
the
people.91
It is submitted that courts should refrain from perceiving themselves as crusaders
constitutionally obliged to redress all failures of democracy. Neither they have this
authority
nor
could
they
achieve
this
goal.
Symbolic
justice
Another major problem with the PIL project in India has been of PIL cases often doing
only symbolic justice. Two facets of this problem could be noted here. First, judiciary is
often unable to ensure that its guidelines or directions in PIL cases are complied with,
for instance, regarding sexual harassment at workplace (Vishaka case) or the procedure
of arrest by police (D.K. Basu case). No doubt, more empirical research is needed to
investigate the extent of compliance and the difference made by the Supreme Courts
guidelines.92 But it seems that the judicial intervention in these cases have made little
progress in combating sexual harassment of women and in limiting police atrocities in
matter
of
arrest
and
detention.
The second instance of symbolic justice is provided by the futility of over-conversion of
DPs into FRs and thus making them justiciable. Not much is gained by recognizing rights
which cannot be enforced devalues the very notion of rights as trump.93 Singh aptly
notes
that,
a judge may talk of right to life as including right to food, education, health, shelter
and a horde of social rights without exactly determining who has the duty and how such
duty
to
provide
positive
social
benefits
could
be
enforced.94
So, the PIL project might dupe disadvantaged sections of society in believing that justice
has been done to them, but without making a real difference to their situation.
Disturbing
the
constitutional
balance
of
power
Although the Indian Constitution does not follow any strict separation of power, it still
embodies the doctrine of checks and balances, which even the judiciary should respect.
However, the judiciary on several occasions did not exercise self-restraint and moved on
to legislate, settle policy questions, take over governance, or monitor executive
agencies.
Jain
cautions
against
such
tendency:
PIL is a weapon which must be used with great care and circumspection; the courts

need to keep in view that under the guise of redressing a public grievance PIL does not
encroach upon the sphere reserved by the Constitution to the executive and the
legislature.95
Moreover, there has been a lack of consistency as well in that in some cases, the
Supreme Court did not hesitate to intrude on policy questions but in other cases it hid
behind the shield of policy questions.96 Just to illustrate, the judiciary intervened to
tackle sexual harassment as well as custodial torture and to regulate the adoption of
children by foreigners, but it did not intervene to introduce a uniform civil code, to
combat ragging in educational institutions, to adjust the height of the Narmada dam
and to provide a humane face to liberalisation-disinvestment polices. No clear or sound
theoretical basis for such selective intervention is discernable from judicial decisions.97
It is also suspect if the judiciary has been (or would be) able to enhance the
accountability of the other two wings of the government through PIL. In fact, the reverse
might be true: the judicial usurpation of executive and legislative functions might make
these institutions more unaccountable, for they know that judiciary is always there to
step
in
should
they
fail
to
act.
Overuse-induced
non-seriousness
PIL should not be the first step in redressing all kinds of grievances even if they involve
public interest. In order to remain effective, PIL should not be allowed to become a
routine affair which is not taken seriously by the Bench, the Bar, and most importantly
by
the
masses:
The overuse of PIL for every conceivable public interest might dilute the original
commitment to use this remedy only for enforcing human rights of the victimised and
the
disadvantaged
groups.98
If civil society and disadvantaged groups lose faith in the efficacy of PIL, that would
sound a death knell for it.
Checking The Dark Side

One might ask if the dark side of PIL is so visible, why has something not been done
about this by the government or the judiciary? An attempt to curb the misuse of the PIL
was made, though not strictly on the part of the Government, in 1996 when a private
member Bill was introduced in the Rajya Sabha, the Upper House of the Indian
Parliament. The Public Interest Litigation (Regulation) Bill had proposed that petitioners
filing frivolous PIL cases should be put behind bars and pay the damages.99 However,
the Billwhich raised concerns of interfering with judicial independencecould not
receive the support of all political parties. As the Bill lapsed, this attempt to control the
misuse
of
PIL
failed.
On the other hand, the judiciary too is well-aware of the problems associated with PIL
and has responded to the dark side of PIL in two ways. First, the Indian Supreme Court

as well as High Courts have tried to send strong messages on a case-to-case basis
whenever they noticed that the process of PIL was misused. In some cases, the courts
have gone to the extent of imposing a fine on plaintiffs who abused the judicial
process.100 On a few occasions, the Supreme Court also expressed its displeasure on
how
the High
Courts
have
admitted
PIL
cases.101
The second, and a more systematic, step that the Supreme Court has taken was to
compile a set of Guidelines to be Followed for Entertaining Letters/Petitions Received by
it as PIL. The Guidelines, which were based on the full-court decision of December 1,
1988, have been modified on the orders/directions of the Chief Justice of India in 1993
and 2003. The Guidelines provide that ordinarily letter/petitions falling under one of the
following
10
categories
will
be
entertained
as
PIL:
a.
Bonded
labour
matters;
b.
Neglected
children;
c.
Non-payment
of
minimum
wages;
d. Petitions from jails complaining of harassment, death in jail, speedy trial as a
fundamental
right,
etc.;
e. Petitions against police for refusing to register a case, harassment by police and
death
in
police
custody;
f. Petitions against atrocities on women, in particular harassment of bride, bride-burning,
rape,
murder,
kidnapping,
etc.;
g. Petitions complaining harassment or torture of persons belonging to scheduled caste
and
scheduled
tribes;
h. Petitions pertaining to environmental pollution, disturbance of ecological balance,
drugs, food adulteration, maintenance of heritage and culture, antiques, forest and
wildlife
and
other
matters
of
public
importance;
i.
Petitions
from
riot-victims;
and
j.
Family
pensions.
The Guidelines also prescribe that petitions related to certain matterssuch as related
to landlord-tenant matters, service matters and admission to educational institutions
will not be admitted as PIL.102 The PIL Cell has been entrusted the task of screening
letters/petitions as per these Guidelines and then placing them before a judge to be
nominated by the Chief Justice of India. As noted before, in view of the epistolary
jurisdiction developed by the courts, PIL petitions need not follow the required format; a
mere postcard could suffice. However, in order to balance this exceptional
power/procedure, the Guidelines were amended in 2003 to provide that it,
may be worthwhile to require an affidavit to be filed in support of the statements
contained in the petition whenever it is not too onerous a requirement.103
Despite the twin-strategy employed by the judiciary to curb the misuse of PIL, it seems
that still many frivolous PIL cases reach before the courts. For example, while hearing a
bunch of PILs seeking guidelines on premature release of convicts serving life
imprisonment in various prisons, the Supreme Court recently expressed its frustration
on the misuse of the PIL device. Noting that around 95 per cent PILs are frivolous, the

Court observed that PIL has become a nuisance and that time has come to impose a
penalty
on
those
who
file
PIL
for
frivolous
reasons.104
One possible explanation why it has proved difficult to curb the misuse of PIL could be
that because the very notion of PIL is based on flexibility (i.e. relaxing the general
procedures as to standing, form and evidence), it is not easy for the courts to keep the
door open and at the same time stop busybodies at the gate. For instance, the judiciary
might not like to roll-back the PIL project so as to lose its power to intervene as guardian
of the interests of disadvantaged sections or to make the Government accountable in
selected cases.105 It might prefer a situation in which no single genuine PIL case is
excluded, even if that results in some non-serious PIL cases being entertained. This
approach is arguably reflected in the broad ambit of the above Guidelines, which seem
more like facilitating rather than curtailing PIL cases. This perhaps also explains why, for
example, the Supreme Court Rules do not yet deal with the PIL cases.
Conclusion
PIL has an important role to play in the civil justice system in that it affords a ladder to
justice to disadvantaged sections of society, some of which might not even be wellinformed about their rights. Furthermore, it provides an avenue to enforce diffused
rights for which either it is difficult to identify an aggrieved person or where aggrieved
persons have no incentives to knock at the doors of the courts. PIL could also contribute
to good governance by keeping the government accountable. Last but not least, PIL
enables civil society to play an active role in spreading social awareness about human
rights, in providing voice to the marginalized sections of society, and in allowing their
participation
in
government
decision
making.
As I have tried to show, with reference to the Indian experience, that PIL could achieve
all or many of these important policy objectives. However, the Indian PIL experience
also shows us that it is critical to ensure that PIL does not become a back-door to enter
the temple of justice to fulfill private interests, settle political scores or simply to gain
easy publicity. Courts should also not use PIL as a device to run the country on a day-today basis or enter the legitimate domain of the executive and legislature.
Also, a number of criticisms of PIL have been voiced in recent years, including concerns
related to separation of powers, judicial capacity, and inequality. While critics have been
persuasive when pointing to particular cases, the sheer number of cases, as well as the
variation in tendencies over time and among court benches, have made reaching a
general conclusion difficult. This paper has argued that complaints related to separation
of powers concerns are better understood as criticisms of the impact of judicial
interventions on sectoral governance, and that structured case studies of sectoral
governance are necessary to assess those criticisms. On the issue of inequality, this
paper contributes to an overall assessment by systematically examining the relative
magnitude, case composition, and geographical origins of, as well as legal
representation and the claimants social class in, PIL and Fundamental Rights cases that
reached the Indian Supreme Court.

Law and Morality

In general view morality is the quality of being in accord with standards of right or
wrong conduct. Morality, speaks of a system of behavior in regards to standards of right
or wrong. The word carries the concepts of: (1) moral standards, with regard to
behavior; (2) moral responsibility, referring to our conscience; and (3) a moral identity,
or one who is capable of right or wrong action. Morality has become a complicated issue
in the multi-cultural world we live in today. Timeless wisdom explains that there cannot
be a complete law unless there lays the effect and inclusion of morality. My Project
explores what is Moores concept of morality and how he explains its affects on our
behavior,
our
conscience,
our
society,
and
our
ultimate
destiny.
Law and morality are too vague to understand. It must be added here that the notions
of law and justice can't be captured and presented before us within a few sentences.
These notions are too vast that even words are not sufficient to define them. Many
jurists from the ancient Greek period to the modern and even the post-modern era have
attempted numerously to define these concepts, but have failed. One of the reasons
may be that the roots of these concepts lie somewhere within the human psyche, which
is extremely random and versatile. Well it is required to describe the tenets of the two
main
schools
of
law.
Legal
The start of the nineteenth century may be regarded
movement. The term positivism has many meanings,
H.L.A.
Hart
1. Laws are commands. This meaning is associated
Positivism,
Bentham
and
his
2.
*
*
*

The
distinct

analysis
from
distinct

of
worth
sociological
from

Positivism:as the beginning of the positivist


which are tabulated by Professor
as
follows:
with the two founders of British
disciple
John
Austin,

legal
and

concepts
historical

critical

is:
pursuing
inquiries,
evaluation,

3. Decisions can be deduced logically from the predetermined rules without recourse to
social
aims,
policy
and
morality,
4. Moral judgments cannot be established or defended by rational argument, evidence
or
proof,
5. The law as it is actually laid down, positum, has to be kept separate from the law that
ought
to
be.
The positive law school has its main pillars as, Jermy Bentham, John Austin, Prof. H.L.A.
Hart, Kelson. Actually positivism has grown out of the ashes of renascence in Europe. It
is hence a liberal thought or a liberal ideology whose main aim is to bring positive
reforms in the society through the instrument of state and not through the clergy. What
positivism represents is the intellectual reaction against naturalism and a love of order

and

precision.

After having a brief idea of legal positivism, we should move to the Natural Law school.
Natural
Law
School:The term "natural law", like positivism, has been variously applied by different people at
different
times.
1.
Ideas
which
guide
legal
development
and
administration.
2. A basic moral quality in law which prevents a total separation of the "is" from the
"ought".
3.
The
method
of
discovering
perfect
law.
4.
The
content
of
perfect
law
deducible
by
reason.
5.
The
conditions
sine
quibus
non
for
the
existence
of
law4.
The question of how law is related to morality is best approached through judicial
obligation that obligates judges in their role as judges, and then to further consider how
ought judges to use morality in their decision of disputed law cases? How should
morality
properly
enter
into
judicial
decisions.
Idea to understand the judicial reasoning is by considering the obvious law. This can
be understood with the help of certain examples, which he cites. When statutes award
custody of minor children to a parent it is most likely in the best interest of the child,
award citizenship only to those applicants who possess good moral character, deport
those who are convicted of crimes of moral turpitude. This shows that judges in legal
systems with obvious law like ours have to make some kind of moral decisions in order
to
apply
such
laws
to
the
cases
before
them.
With the force of the state behind them, they coerce people into giving up their money,
their liberty and their lives. Such coercion requires justification, which is of course the
(obvious) law, which lays down certain doctrines of legislative supremacy and the ban
on common law crimes. Some political ideals such as democracy, the separation of
powers, and the rule of law make those doctrines a source of judicial obligation.
Natural law school dominated till the nineteenth century, beginning from the ancient
Greek period. Natural law school discussed what law is etc., but never discussed law as
an empirical formula, and never made strict separation between what law is and what
law ought to be. Natural law thinkers while talking of law talk about law made by man's
mind consciously, as opposed to law made as a result of morality lacking conscious
element. Natural law thinking is one form or other is pervasive and is encountered in
various contexts. Values, for instance, as pointed out, play an indispensable part in the
development and day to day administration of law. In a different sphere natural law
theory has tried to meet the paramount needs of successive ages through history, and
an account has been given of the ways in which it supported power or freedom from
power according to the social need of the time. Further natural law school offers a
indirect help with two contemporary problems, namely, the abuse of power and the
abuse
of
liberty.

Positivism on the other hand, by seeking to insulate legal theory from such
considerations refuses to give battle where battle is needed perhaps wisely, perhaps to
its own discredit, depending on the point of view. The Natural law thinkers have always
considered the principles of morality as higher law and they look at man made law
contempt and ridicule. Law and morality have always been at loggerheads with each
other. The positivists led by Bentham and Austin deliberately keep justice and morality
out of the purview of legal system. Their formalistic attitude is concerned with law as it
is and not law as it ought to be. They emphasize law from the point of source and
implementation. So, the natural law system depends upon the standards and yardsticks
of morality to formulate any law, whereas the positivist system of law depends upon the
conscious and deliberate attempt of law making.
Morality and our Behaviour

We are constantly talking about law and morality, so let us know the meaning of these
two concepts. Law is continuously evolving norm or rather we should say that it is a part
of a normative system whose work is to regulate certain norms in society. It is dynamic
and is never at any point of time static. Law has to change from time to time as
according to the ever changing demands of society. Law doesn't exist for its own
state. It has to achieve certain objectives, which may be short term or long term. Law
aims to create an order in society (in all units of society). Law tries to create a working
environment which is equally just to all sections of society. On the other hand, there is
the vague concept of morality which is a sought of norm or a part of normative system.
Morals are actually certain yardstick standards in our society which work as
prescriptions to human behavior. The starting of preaching of morals start from the very
basic unit of our society i.e. family. As in a Hindu family, young people touch the feet of
elders to wish them. There is no logic behind these morals but still these morals do
prevail in our society. This is fully ones own private practice in which nowhere law has to
intervene. A morality can be one which throws a negative impact on society and the
other which can benefit the society. Law or morality both are normative systems of our
society as both are normative and institutionalized by nature. The only difference
between law and morality is that law is coercive by nature but morality is not. Law is
enforced by coercion and its constant application on a society leads to the
internalization of law in human soul. Initially, law gives only an external behavior or an
overt effect, but with the pace of time the forceful obedience of laws takes the shape of
an internalized realization of habitual obedience. For example, the road traffic laws,
when are applied on a society get internalized in a citizen's behavior after certain time7.
Law has got a coercive backing which works through institutions. So, idea of sanction,
that, one will be punished by god as is being propagated by religion and the so called
contractors of morality from years, has become very loose. That is the reason, why
religion and morality has become loose and ineffective. So, constitutionalism has taken
a front foot. I prove this point of mine by the following example of our contemporary
society. Today in our present society, morality and religion are facing challenges put
forward by technology, fast urban life, secularism, equality before law, democracy, and
constitutionalism.

Since today people are educated in a liberal atmosphere, we are able to think on our
own, we know the difference between right and wrong, truth and false. So, as in earlier
society it was possible to create an easy fear factor in the minds of people on the name
of god. This clash is bound to take place as people are now not dominated by anybodies
whims and fancies or any religious or moral sanctions, but they are capable of taking
their own free decisions. When one tries to analyze the distinction between law and
morality, one feels vaguely that somehow law is connected with reason and conscience.
Therefore law has the characteristic of binding whereas morality has the characteristic
of
being
bound.
The great jurist asserts that force is necessary to control human behaviour because
humanity as a whole is not governed by reason. If everyone thinks reasonably and acts
rationally there is no need of binding one's behaviour. But the experiences in history do
not provide clear evidence of such rational behaviour and so the idea of law has
developed on the assumption that it is necessary to compel the behaviour of individuals
in a particular direction to achieve certain specific ends. Justice and conscience seem to
be personal and individualistic. Hence there cannot be system attached within any
order. Therefore one recognizes, at any point in the history of any social organization, a
legal system but one fails to locate such a system of justice or morality.
Conceptualizing what judges ought to do as judges becomes important. This can be
done by finding that whether judges while performing their duties are following the law.
Moore here discusses, the ideas of legal positivists. They admit that judges should look
to such incorporated moral standards but deny that such standards are part of the law,
which raises an analogy. Likewise for cases where the obvious law is indeterminate a
positivist advises judges to look to morality because there is no law in such cases. When
the judge makes some law by his decision, the law that is made may be morally correct,
but it will still be law only because the judge laid it down and not because it is morally
correct. On the other hand, the natural lawyer denies both, that the obvious law is all
the law, and that the obvious law is in fact always law. According to this school of
thought there should inclusion of morality in law. We thus face a conceptual choice that
is
not
obvious.
Morality, describes the principles that govern our behavior. Without these principles in
place, societies cannot survive for long. In today's world, morality is frequently thought
of as belonging to a particular religious point of view, but by definition, we see that this
is not the case. Everyone adheres to a moral doctrine of some kind to ensure fair play
and harmony between individuals; (2) to help make us good people in order to have a
good society; and (3) to keep us in a good relationship with the power that created us.
Unless we live in a dictatorial society, we are free to choose our own personal moral
code. The question is, what happens when our choices conflict with each other? If we do
not have an absolute standard of truth, chaos and conflict will result as we are all left to
our own devices and desires.
Morality and Law

There seems to be no distinction between law and morality. Greek writers, he quotes,
suggest that the good person is the one who will do what is lawful. It is the lawgivers, in
these early societies, who determine what is right and wrong. What should be legal
roughly corresponds to what is really right or just, that is, what we would call morally
right. We find, for instance, the distinction between what is legally or conventionally
right and what is naturally or morally right. Sometimes this is expressed as an
opposition between what the gods command (i.e., what is morally right) and what the
political authorities command (i.e., what is legally right). The knowledge of what is just
or moral, and the ability to distinguish true justice or morality from what is merely
apparently just depends on the full development and use of human reason.
Moving forward from the relation of morality to the law that binds judges, to the relation
of morality to the content of what ought to be law in a liberal, democratic state. He
thus, moves from the judicial role to the legislative role. Legislators no less than judges
need a theory of their role, a theory about what are and are not proper ends to be
sought via legislation. A legislator should simply represent accurately the views of his or
her constituents, whatever those views might be with respect to the new law proposed
to be created. But where do we find a theory of proper legislative ends? The obvious
answer for Moore, is, morality. Where there is no obvious law available to a judge
morality
is
referred
on
the
subject.
Mill thought that one of the aims forbidden to legislators in a liberal democracy was the
aim to legislate morality. Only legislation aimed at preventing behavior harmful to
others was proper; legislation aimed at promoting morality was as much condemned, as
was paternalistically motivated legislation. E.g.: the state should not coerce or
encourage any moral conception of the good life; or the state should refrain from
legislation on moral matters where there is no overlapping consensus; or the state
should only provide the fair framework in which differing moral visions can compete;
etc.
The critique of Mill and these Post-Millian liberalisms is very simple. If something is
morally good, that gives each of us a reason to promote its attainment. That is as true
of legislators as of anyone else. If laws can be made that promote justice, there is good
reason to make such laws. How liberal they are depends on the structure of morality
they would enact into law. If that morality contains such items as a general right to
liberty, then a moralist legislator should respect that part of morality too. Mills harm
principle is not a limit on proper legislative aim rather it is a theory of when behavior is
morally wrong. Most harming of others without their consent is morally wrong, and most
seriously immoral wrongs consist of causing such harms. According to Moore, Austin had
it right, when he held that we should legislate morality. The law we ought to have should
be as near to morally correct as we can make it. But Moore can be criticized here, when
he supports legislation of morality, which is practically impossible.
How Does Morality Relate To The Law We Ought To Have?

Most probably, because justice and conscienceless are experiences and intuitions of the
mind. We cannot think of an external system to regulate the activities of the mind. On
the contrary, human behaviour, in its rudimentary nature is physical and superficial.
And so a legal system can find a methodology of directing it or guiding it or even
governing it. therefore a legal system having rules and regulations with regard to trade,
commerce, finance and employment will be greatly successful because the writer
thinks, there are the areas in which human behaviour is physically; desirable. In these
areas an external force, law is such an external force, a system in more
comprehensively physical. Moreover the external element of deciding, adjudication,
administration or even policing is possible. On he other hand, the definition of morality
or the concept of morality changes from person to person. May be what is morality for
me, that is not moral for you. For e.g. the viewing of porn sites in the scenario of the
society existing in Indian subcontinent is not considered to be a moral act, but the
viewing of the same porn site is considered to be a legible and conveniently acceptable
in
European
and
American
societies.
If we look at the form and content of law, we find that a legal norm may be common
with that of religious and moral norm. For example, all religious and moral norms say
not to kill or not to steel, and it is the same here in law. So, we have almost the same
content between law and morality. Then the question arises that, if it is so, then what is
the difference between law and morality? The answer is that, the legal system is distinct
from
religion
and
morality
in
the
form
and
not
in
the
content.
Law is influenced from both religion and morality and hence their takes place a sought
of interaction between the legal system and the moral and religious faculty of our
society. In a traditional society laws have never had a very dominating character, but
religion
and
morality
had
always
had
a
very
predominant
role.
But in a modern society life changes very fast, hence morality and religion are under a
great
pressure.
Hence,
law
is
the
only.
alternative to human development. In a multi religious, liberal and multi communitarian
society, law can only work in a impartial and efficient manner. The greatest examples
are the world's biggest democracies. Being more specific and illustrative, I would like to
quote the example of India, U.S.A., England, and France etc. which have successfully
established a deliberate and conscious mode of law making process through
constitutionalism and this is done out of an age old monarchical and religious morality.
In Russia, before the 1917 Bolshevik Revolution, the morality among general masses
was that the Czar is having divine powers to rule over them. Laws were used to enforce
such moral standards, but after long period of exploitation mass revolution broke up in
1917 and finally the negative effects of morality were overthrown and a constitutional
setup was established. The same happened during French revolution. In India, in the
ancient Vedic period, the common morality was that society was unequal and hence
caste system and untouchability grew. This moral standard was given the institutional
shape of law. But, after independence in 1947 we have stopped the legal enforcement
of such illegitimate morals.

Is law responsible for the enforcement of religion and morality?

Pornography, prostitution, homosexuality etc. are areas of ones own consciousness and
hence it is an area of conflict which is still continuing. So, does law has got the right to
intervene with religious and moral feelings among people? For example, there is a moral
notion in our Indian society that love marriages or inter caste marriages are not feasible
enough and hence should not take place. Consider the claim that homosexuality is
immoral. I strongly disagree. Now what In a contest between a majority of state
legislators and me and those who agree with me, what privileges the legislature's
judgment of morality. In what way are they experts How does being elected to the
legislature qualify them to make these judgments. Do they hold hearings on the
morality of homosexuality and offer reasons for their conclusions. Or do they just press
a button and register their vote. Most importantly, how can we assess the merits of their
claim. If we cannot, then in reality they can prohibit whatever they want (and for
whatever reason they want). No matter how objective morality may be, any such
doctrine of constitutional law is recipe for tyranny. Take the issue of living relationships,
which carries a moral ban on it. I don't understand that if two major individuals with
their exercise of free consent decide to live together, where the question of
infringement of any rational standards arises. This shows that the moral standards are
never
rational
by
effect13.
Now I ask the question that, should a law be made to enforce such moral standards. Is
such a law not repugnant with the constitutional principles of liberty and freedom.
The legal positivists like, Bentham, Austin, Kelson have always said that law must never
be used as an instrument of enforcement of any moral standards. Therefore, as one
cannot see the mind and conscience, elements of morality become weak and not
determinable. But law is convenient, the present writer asserts again that it is only
convenient; it has withstood the test of time. At any particular time, for any situation,
law becomes a technique to establish a certain expected social behaviour. Morals may
be for enlightenment and would facilitate individual peruses. Therefore it is thought and
envisaged by the present writer, as compulsions and aspirations influence life, a legal
system should consist of principles of convenience and feasibility whereas morality
should be left to individual freedom and practice. Legal enforcement of these moralities
which causes negative impact in the growth of our society must never be determined.
Recently a pastor informed his congregation that Christians can no longer seek to
impose their moral values on a society which does not accept Christianity. The second
part of the statement, at least, is quite wrong. While Church membership and
attendance has sharply decreased, the Roy Morgan Study of the Values of the Australian
People
demonstrates
that
80%
believe
in
God.
Should Christians seek to impose their moral values on law and society. There are some
who are forcibly and aggressively arguing that Christian values must be expelled from
law, society and politics. Gareth Evans (now Senator Evans) is reported in The Sydney
Morning Herald, May 7th, 1976, as stating at a convention of the South Australian
Council for Civil Liberties that children wanted a right to sexual freedom and education

and

"protection

from

the

influence

of

Christianity.

The same article referred to Mr Richard Neville (of Oz fame) as stating that "promiscuity
is one beneficial way of breaking up the family structure, which has led children to
become the property of their parents. Law cannot be an instrument of expression of
moral standards, rather law has to be independent of all sought of moral dogmas except
certain areas in which law is dominated by morality. e.g. Legal areas like the business
laws, cyber laws, tax laws, company laws, trade laws, etc are exclusively a legal treatise
and morality has got nothing to do with that of law in such areas. Take the historical
example of SITA whose fundamental and moral instinct has now changed it into PITA.
But on the other hand we can never deny that a major content of law derives its content
from that of morality. Like that criminal law is a product of moral notions. For example,
all religious and moral norms say not to kill or not to steel, and it is the same here in
law. So, we have almost the same content between law and morality. The positive
thinkers have thought in a narrow interpretation of law because they overlooked
religious
and
moral
values.
The actual conclusive situation is that religion, morality or law all have the work of
controlling the behaviour of individuals of our society, hence we must not exclude the
importance of morality in our society. In the case of International Humanitarian Laws,
certain moral standards are also recognized as a part of law. So, the absolute separation
of law and morality is not possible in these areas where morality produces a positive
effect
in
society
which
is
prospective
in
nature.
There seems to be quite a strong connection between law and morality. Although people
sometimes say "you shouldn't legislate morality", they presumably don't really mean
this - why would we outlaw rape and murder if they weren't wrong? Instead, I suppose
they mean that people shouldn't impose their personal moral views (especially
regarding sexuality) upon others. I would agree with that sentiment, though my reason
is precisely because I think legislation should be morally informed, and the "moral
views"
in
question
are
entirely
misled.
As a quick aside: it is unfortunate that the word "morality" has become associated with
conservative values, because the obvious invalidity of those values to many people
tarnishes their attitude towards morality as a whole. And that is a damn shame. When
conservative groups advocate bigotry masquerading as "family values", we need to
recognise the injustice of this, and instead stand up for what is right. But I digress - this
isn't intended as a post about how liberals need to reclaim the moral high ground.
So we accept that there is a connection between law and morality, but what sort of
connection is it. Their domains are clearly not entirely identical - for example, it may be
wrong to lie to your parents, but it certainly is no business of the law. Perhaps the best
way to explain this is to acknowledge that the law is an extremely blunt tool, and so will
be
of
no
help
when
dealing
with
minor
or
subtle
moral
issues.

But even if some morality is outside the scope of Law, could Law's domain be a subset
of the Moral? That is, should we only ever outlaw immoral acts, and never morally
permissible
ones?
I would like to say 'yes', as it does seem like a good principle. But I can't, because it
contradicts my position on some other issues. That is, I think morality is purely 'otherregarding' in nature, and merely harming yourself (e.g. smoking in private) is not
immoral. On the other hand, I previously suggested that state paternalism could be
acceptable.
To approach this topic from a slightly different angle now, the intriguing suggestion that
we understand law and morality in terms of belief-desire psychological theory. That
theory claims that any human action can be explained solely in terms of the beliefs and
desires of the agent. For example, if I turn on a heater, this may be because I desire to
be warm, and I believe that turning on the heater will achieve this end. To apply this to
our current topic, consider how society can influence the actions of its members.
According to belief-desire psychology, there are two broad options: change someone's
beliefs,
or
change
their
desires.
Morality, by this understanding, corresponds to the latter option. That is, morality is a
system of socialisation whereby society instills in its members the desire certain ways.
The other method of influence is to alter people's beliefs about how best to fulfil their
desires. This is where Law comes in. Its role (according to this interpretation) is to serve
as a deterrent for those who, for whatever reason, fail to be bound by morality. It
achieves this through the threat of punishment, i.e. by instilling in citizens the belief
that breaking the law is not in their own best interests - they could get caught and sent
to jail, which would surely thwart many of their other desires.
Should Real Or Conventional Morality Be Part Of The Law?

We further discuss here a meta-ethical issue: that whether is and ought which is to be
a part of the law, real or conventional morality? Is it so that the moral beliefs shared by
citizens are the mores of our society? Or is it what some call critical morality, and
what Moore calls real (or the correct) morality? The second issue is a substantively
ethical question: is that morality utilitarian including justice as something to be
maximized?
Moore examines the first issue here and the second in the succeeding section. He
assumes that meta-ethical relativism is false. The argument for use of conventional
moral beliefs that interests him proceeds not from necessity but from desirability. The
idea is that it is right to look to popular, generally accepted moral beliefs when
questions of morality arise in the law. That at least is the shape of the conclusion.
1.
Supposed
wisdom
of
many
Everyone has quite a few firmly held moral beliefs. Is it likely that they can render those
beliefs doubtful because many others disagree with them? If truth in morality is really so
hard to achieve, why defer to others, who surely are as muddled as are you? There is

another argument for use of conventional morality in law, but it is distinct and merits
separate mention. This is the idea that perhaps, conventional morals are a good
heuristic to true morality. Whether a particular murderer really deserves to die, for
example. In this case we use conventional morality, not because it is more likely true,
but because thinking about conventional morality gets us to our own best views of what
true
morality
requires.
Somewhat more plausible, perhaps, is deference based, not on the fact that
conventional moral beliefs are correct, but on the fact that they are conventional, i.e.,
they are what most people think. Social peace and harmony is worth the price of living
under incorrect moral beliefs. In the Law We Ought to Have Supposed these democratic
and peace-at-any-cost ideals, which convince one to use conventional morals
whenever morality enters the law. This conventionalist legal moralism would mean that
there are no principled limits to what may be legislated by a majority. Lord Devlin
showed us this in his debate with Herbert Hart in the 1960s. Seeing this makes it easy
to see why Mill thought he should be arguing against legal moralism as much as against
legal paternalism. Mill took this to be an example of legal moralism doing its pernicious
work. Yet what if Mill thought that polygamy was deeply immoral, perhaps like female
circumcision in certain African tribes. Wouldnt his outrage have been eliminated
because then, the Americans would have been legislating true morality and not (a
largely incorrect) conventional morality about sex. Mill surely thought (as also Moore)
that polygamy was no big deal morally speaking, and therefore that using the coercive
force of the law to stamp it out was unjustified. In this case, Mills real target was the
use of conventional morals as the basis of legislation, not the use of morals as such.
___________________________________________________________________________
2.
In
the
Law
We
Have
Now turn to morality in the law we have, the law that obligates judges in their roles as
judges. As we saw, there are few ways by which morality enters into the law we have,
and let us consider how it looks if we plug conventional morality in them.
The

explicit

incorporation

of

moral

standards

into

legal

standards.

Consider the constitutional case first. As noted earlier, the U.S. Constitution explicitly
requires moral judgments by judges as they exercise the great power of judicial
review. Despite the rhetoric of many Supreme Court opinions that judges should look
to the canons of decency and fairness which express the notions of justice of Englishspeaking peoples (Frankfurter), the canons of decency that mark the progress of a
maturing society (Earl Warren), the values, so rooted in the traditions and conscience
of our people as to be ranked as fundamental (Cardozo), the narrowest social
tradition (Scalia), etc. using conventional morality in exercising the power of judicial
review makes no sense. For remember, what is being reviewed is the product of
consensus moral beliefs, a statute enacted by a representative legislature. It makes
little sense for a court to use that same conventional morality to review an expression of
it
by
a
more
representative
body.

This general point is reinforced by a point specific to the rights-protecting clauses of the
U.S. Constitution. Such rights become important when their support does not command
a majority so that they will not win out in the political process. The idea that there are
such minority rights against majority views again makes little sense if these rights are
given conventional i.e., majoritarian interpretations. A right good against the majority
only when the majority agrees with it is not much of a right. These arguments are
unavailable when it is not constitutional law that incorporates moral standards, but is
common law or statutory law. One argument common to all three kinds of law is based
in language use. On the theory of meaning Moore have long thought correct, he says,
when we speak we ordinarily refer to things whose nature guides our meaning. If I
request that you prospect for gold, I expect you to bring me stuff that is really gold;
fools gold, or other stuff commonly thought to be gold, will not be what is meant. The
same is true of moral usages. If legislatures direct judges to find wherein lies the best
interest of a child, or whether a petitioner for citizenship does or does not possess good
moral character, they like all other speakers should be construed to mean what is really
best
or
good,
not
what
most
people
think
is
best
or
good19.
It is possible of course, for prior judges, legislatures, or constitutional conventions to
mean something else. It is possible they meant for judges to look to popular moral
beliefs. It is even possible they meant for judges to look to their (the law-givers) moral
beliefs on these matters, whether such beliefs were conventionally accepted or not. But
absent some special context making the existence of these special interpretive intents
plausible, surely law-givers should be seen like other language users. Judges are to
ascertain where the child will really be better off, not guess at what most people would
think on the matter.
The justification of the obvious law by the thoughtful judge

As we have seen, the thoughtful judge justifies the use of obvious law like statutes by
political ideals such as democracy and the rule of the law. It is this exercise that justifies
judges in using the coercive power of the state to order the litigants before them to give
up their property, their liberty, their children, and their lives. It is inconceivable to Moore
that judges could ever feel satisfied in this justificatory task, if they repaired only to
conventionally accepted versions of democracy, the rule of law, etc. For notice how
personal is this question: what justifies me in doing what I am about to do? That
others think it fine cannot answer for me. Do I think its fine? is the relevant question,
and for that question only ideals that I accept as true can fit the bill.
Filling in the indeterminacies in the law in hard cases

In cases of conflicting legal standards, cases of first impression, and cases of penumbral
application of legal standards Fullers hard cases conventional morals has perhaps
its most plausible use. The fact that these legislators i.e., judges in hard cases, are not
subject to the discipline of frequent, regular election might incline one away from the
conception for which Moore had earlier argued. As many legal philosophers have noted
that the views of judges in hard cases doesnt reflect the continuity judges rightly sense,

between what they do in hard cases and what they do in easier ones. On the molecular
legislation view, judges do two quite different things: in easy cases they apply the law,
and in hard cases they make new law. In hard cases there is an extension of what went
before, not the fresh beginning suggested by the phrase, judicial legislation. Judges
owe an obligation to extend the past in a way legislators do not.
Therefore, conventional morality should not be used in doing the
interpretation required in hard cases. But how are we to conceive of the
past to which judges owe fidelity in hard cases? Should we see the obvious
law
that
is
to
be
extended
in
hard
cases
as:
(1)
a
reflection
of
the
communitys
moral
beliefs?
(2) an imposition of the law-givers moral beliefs at the time that law was laid down? Or
(3) a reflection of some underlying ideal of justice, partially and somewhat inaccurately
expressed
by
the
obvious
law?
If it is the first, then judges might well seek to extend that past consensus by bringing it
up
to
date
with
the
present
consensus.
If it is the second, then judges might well seek to extend that past imposition in light of
those
lawgivers
own
views
of
what
they
did.
If it is the third, then judges should seek to extend that attempt to capture justice with
their
own
best
insights
as
to
what
justice
requires.
Which of these views to adopt is not be settled by history. It should not matter much
how law-givers of the past viewed what they were doing. The question for judges is a
more straight forwarding normative one. In Moores vicarious judging, judges should see
law makers of the past as striving for justice, and should thus join them in the task of
achieving
it.
So by this view, law and morality are just two sides of the same coin namely, that of socialisation. Morality seeks to influence our behaviour by way of our
desires, whereas law is the 'back-up' option, and targets our beliefs.
This is true in the United States as well, and not only in how our legally mandated
school systems and our criminal laws contribute to the shaping, including the moral
training, of citizens. Yet the typical opinions in a contemporary liberal democracy are
likely
to
be:
(1)
that
morality
cannot
be
legislated;
and
(2) that even if morality could be legislated, it should not be...that to do so is somehow
improper, even tyrannical, either because there is no morality objective enough to
justify legal enforcement or because one's autonomy and individuality would be violated
by attempts to legislate morality or perhaps even because one really has no autonomy
that
can
respond
to
any
external
directive.
Such concerns are not evident in the Ethics: law is needed both to help habituate
citizens to virtuous actions and to help maintain the salutary habits they acquire. These
needs can be recognized even by those who are aware that the virtues generally
fostered by law are not the highest. The opinions one may have about the good, the

true, and the beautiful are a secondary concern of most laws. Still, it is well to keep in
mind Aristotle's counsel that one who is "to listen intelligently to lectures about what is
noble and just must have been brought up in good habits." For proper habituation, laws
can be most useful, if not indispensable. Although intellectuals of liberal democratic
sympathies may not believe that morality depends on law, it is almost impossible for
any regime that takes itself, and is to be taken, seriously not to shape its citizens with
respect to morality. To deny that legislation of morality can or should take place does
not eliminate such legislation; it merely conceals it, perhaps distorts it, and otherwise
confuses and misleads rulers and ruled alike. (Here, as in physics, much that Aristotle
noticed and relied upon is tacitly relied upon by us as well, but relied upon haphazardly
because
it
is
not
properly
noticed.)
It would be useful, therefore, to indicate how pervasive Aristotle understands the law to
be with respect to morality in a community. When we see what law can mean, and how
it works, we may better appreciate what the law does in the service of morality, even in
such a liberal democracy as ours. To speak of the influence of the law is, we shall see, to
speak of the many ways that the community forms the citizen and guides the human
being.
For us, however, the term law does tend to be limited to what "government" does, to
the statutes and decrees that governments issue. We have noticed the most
conspicuous way, drawn upon at the end of the Ethics, in which morality is dependent
on law. It should be added here that not only is morality somewhat dependent on law,
but also that the law itself is to a considerable extent dependent on morality. A properly
trained, morally alert citizen-body tends to be appalled by the lawbreaker. But does not
this response (which can help keep many would-be lawbreakers in line) rest, in turn,
upon the presumption that the law is likely to be, and in fact usually appears to be, itself
moral and in the service of the common good. There is a critical reciprocity between law
and morality. Reciprocity, we recall from the Ethics, can be vital to justice as a particular
virtue. The exercise of most virtues requires a stable community, one in which one's
body and life as well as property are fairly secure...and, of course, the law is essential
here.
To become or to remain a civilized human being usually requires a sound
community...that is, one in which the law plays a considerable part. Is there not an
intimate relation, at home and abroad, between justice and peace? To recognize this is
not to deny that friendship also seems to hold communities together nor that legislators
may care more for it than for justice. Even so, is not proper habituation needed for
reliable friendships, as well as for justice. Who but the legislator, who must always be
distinguished
from
the
tyrant,
can
insure
such
habituation.
If law is not based on morality, on what can it be based - Christian morality, derived
from the Ten Commandments, underlies the common law. Criminal law is based on the
Ten Commandments, which also underlie the law of contract and the law of civil wrongs.
The common law inherited by the British Colonies on the Australian continent and by
the Commonwealth established in 1901, was developed over many centuries by British

judges, who reacted to particular human situations on the basis of Christian values. In
an
essay
entitled
"morals
and
the
Criminal
Law,
Lord
Devlin
wrote:"Society means a community of ideas; without shared ideas on politics morals and
ethics, no society can exist. Each one of us has ideas about what is good and what is
evil; they cannot be kept private from the society in which we live. If men and women
try to create a society in which there is no fundamental agreement about good and evil
they will fail; if, having based it on common agreement, the agreement goes, the
society
will
disintegrate.
"For society is not something that is kept together physically; it is held by the invisible
bonds of common thought. If the bonds were too far relaxed. The members would drift
apart. A common morality is part of the bondage. The bondage is part of the price of
society; and mankind, which needs society, must pay its price "
Expanding Horizons of Right to Information

Every citizen has a right to impart and receive information as part of his right to
information. The State is not only under an obligation to respect this right of the citizen,
but equally under an obligation to ensure conditions under which this right can be
meaningfully and effectively enjoyed by one and all. Right to information is basic to and
indivisible from a democratic polity. This right includes right to acquire information and
to disseminate it. Right to information is necessary for self-expression, which is an
important means of free conscience and self-fulfillment. It enables people to contribute
on social and moral issues. It is the best way to find a truest model of anything, since it
is only through it that the widest possible range of ideas can be circulated. This right
can be limited only by reasonable restrictions under a law for the purposes mentioned
inArticle 19(2) of our constitution. Hence no restriction can be placed on the Right to
information on the grounds other than those specified under Article 19(2). The said right
cannot be denied by creating a monopoly in favour of the government or any other
authority.
RIGHT
TO
INFORMATION
MEANING
The right to impart and receive information is a species of the right to freedom of
speech and expression guaranteed by Article 19(1) (a) of the constitution of India. A
citizen has a Fundamental Right to use the best means of imparting and receiving
information. The State is not only under an obligation to respect the Fundamental Rights
of the citizens, but also equally under an obligation to ensure conditions under which
the Right can be meaningfully and effectively be enjoyed by one and all. Freedom of
speech and expression is basic to and indivisible from a democratic polity. A true
democracy cannot exist unless all citizens have a right to participate in the affairs of the
polity of the country. The right to participate in the affairs of the country is meaningless
unless the citizens are well informed on all sides of the issues, in respect of which they
are called upon to express their views. One sided information, disinformation,
misinformation and non-information all equally create an uninformed citizenry which

makes democracy a farce when medium of information is monopolized either by a


partisan central authority or by private individuals. Hence to have a representative
central agency to ensure the viewers right to be informed adequately and truthfully is a
part
of
the
right
of
the
viewers
under Article 19(1)
(a).
Legal
Response
The Indian response towards conferment of right to information can be
classified
under
the
following
two
categories:
(a) Constitutional
response,
and
(b)
Statutory
response.
CONSTITUTIONAL
RESPONSE:
(i)
Freedom
of
information
(ii) Right to know under Article 21.

This
under Article 19(1)

(a),

includes:
and

Freedom of information under Article 19(1) (a):

Article 19(1)(a) of the constitution guarantees to all citizens freedom of speech and
expression. At the same time, Article 19(2) permits the State to make any law in so far
as such law imposes reasonable restrictions on the exercise of the rights conferred
byArticle 19(1)(a) of the constitution in the interest of sovereignty and integrity of India,
the security of the State, friendly relations with foreign States, public order, decency,
morality, contempt of court, defamation and incitement of offence. Thus, a citizen has a
right to receive information and that right is derived from the concept of freedom of
speech and expression comprised in Article19(1) (a)2. It must, however, be noted that
freedoms under Article 19, including Article 19(1) (a), are available only to citizens of
India. An alien or foreigner has no rights under this Article because he is not a citizen of
India. Thus to confer protection upon non-citizens one has to depend upon and
apply Article 21 which is available to all persons, whether citizen or non-citizen.
Right to know under Article 21:

Article 21 enshrines right to life and personal liberty. The expressions right to life and
personal liberty are compendious terms, which include within themselves variety of
rights and attributes. Some of them are also found in Article 19 and thus have two
sources at the same time. In R.P.Limited v Indian Express Newspapers the Supreme
Court read into Article 21 the right to know. The Supreme Court held that right to know
is a necessary ingredient of participatory democracy. In view of transnational
developments when distances are shrinking, international communities are coming
together for cooperation in various spheres and they are moving towards global
perspective in various fields including Human Rights, the expression liberty must
receive an expanded meaning. The expression cannot be limited to mere absence of
bodily restraint. It is wide enough to expand to full range of rights including right to hold
a particular opinion and right to sustain and nurture that opinion. For sustaining and
nurturing that opinion it becomes necessary to receive information. Article 21 confers
on all persons a right to know which include a right to receive information. The ambit

and

scope

of Article 21

is

much

wider

as

compared

to Article 19(1)

(a).

Thus, the courts are required to expand its scope by way of judicial activism. In P.U.C.L v
U.O.I the Supreme Court observed that Fundamental Rights themselves have no fixed
contents, most of them are empty vessels into which each generation must pour its
contents in the light of its experience. The attempt of the court should be to expand the
reach and ambit of the Fundamental Rights by process of judicial interpretation. There
cannot be any distinction between the Fundamental Rights mentioned in Chapter-III of
the constitution and the declaration of such rights on the basis of the judgments
rendered
by
the
Supreme
Court.
Further, it is well settled that while interpreting the constitutional provisions dealing with
Fundamental Rights the courts must not forget the principles embodied in the
international conventions and instruments and as far as possible the courts must give
effect to the principles contained in those instruments. The courts are under an
obligation to give due regard to the international conventions and norms while
construing the domestic laws, more so when there is no inconsistency or conflict
between
them
and
the
domestic
law.
STATUTORY
RESPONSE:
Besides constitutional provisions we have certain statutory provisions also, which confer
right to information upon the citizens. The notable one among them are:
Right to information in case of Food and Drugs:

Section 23 r/w Rule 32 of the Prevention of Food Adulteration Act, 1954 confers on
consumers of food products a right to be informed whether or not the article of food is
vegetarian or non-vegetarian. As regards drugs and cosmetics, necessary amendments
have not been made in the relevant statute. In Ozir Husain v U.O.I a division bench of
Delhi High court observed that it is the Fundamental Right of the consumers to know
whether the food products, cosmetics and drugs are of non-vegetarian or vegetarian
origin, as otherwise it will violate their Fundamental Right under Article 19(1) (a), 21 and
25 of the constitution. The packages of non-vegetarian products should bear a symbol
giving their non-vegetarian origin; and a package of a vegetarian product should also
bear a symbol. To enable a person to practise the beliefs and opinions, which he holds,
in a meaningful manner, it is essential for him to receive the relevant information;
otherwise he may be prevented from acting in consonance with his beliefs and opinions.
In case a vegetarian consumer does not know the ingredients of the drugs or food
products which he/she wishes to buy, it will be difficult for him/her to practise
vegetarianism. Moreover, reading Article 19(1) (a) along with International Covenant on
Civil and Political Rights, it must be recognized that right to freedom of speech and
expression includes freedom to seek, receive and impart information of ideas.
Further Article 21 confers on every person right to receive information and also a right
to know the ingredients or the constituents of drugs and food products. However, as far
as life saving drugs are concerned a limited exception will apply because a patient, who
is suffering from serious ailment, which can be fatal if a life saving drug is not

administered to him, need not be informed in his own interest as to whether or not the
drug contains part of any animal as it is conducive to the preservation of life and,
therefore, in tune with Article 21 of the constitution. Thus the High Court issued certain
directions about declarations and different coloured symbols to be displayed on
packages of drugs and cosmetics regarding their vegetarian or nonvegetarian origin, till
amendments are made in the Act.
Right to information in cases of venereal or infectious diseases:

The welfare of the society is the primary duty of every civilized State. Sections 269 to
271 of the Indian Penal Code, 1860 make an act, which is likely to spread infection,
punishable by considering it as an offence. These sections are framed in order to
prevent people from doing acts, which are likely to spread infectious diseases. Thus a
person suffering from an infectious disease is under an obligation to disclose the same
to the other person and if he fails to do so he will be liable to be prosecuted under these
sections. As a corollary, the other person has a right to know about such infectious
disease. In Mr. X v Hospital Z the Supreme Court held that it was open to the hospital
authorities or the doctor concerned to reveal such information to the persons related to
the girl whom he intended to marry and she had a right to know about the HIV Positive
status of the appellant. A question may, however, be raised that if the person suffering
from HIV Positive marries with a willing partner after disclosing the factum of disease to
that partner, will he still commit an offence within the meaning of Section 269 and 270
of I.P.C. It is submitted that there should be no bar for such a marriage if the healthy
spouse consents to marry despite of being aware of the fact that the other spouse is
suffering from the said disease. The courts should not interfere with the choice of two
consenting adults who are willing to marry each other with full knowledge about the
disease. It must be noted that in Mr. X v Hospital Z a three judge bench of the Supreme
Court held that once the division bench10 of the Supreme Court held that the disclosure
of HIV Positive status was justified as the girl has a right to know, there was no need for
this court to go further and declare in general as to what rights and obligations arise in
such context as to right to privacy or whether such persons are entitled to marry or not
or in the event such persons marry they would commit an offence under the law or
whether such right is suspended during the period of illness. Therefore, all those
observations made by the court in the aforesaid matter were unnecessary. Thus, the
court held that the observations made by this court, except to the extent of holding that
the appellants right was not affected in any manner by revealing his HIV Positive status
to the relatives of his fiance, are uncalled for. It seems that the court has realized the
untenablity of the earlier observations and the practical difficulties, which may arise
after the disclosure of HIV status.
Right to know about the information under the control of a public authority:

In our present democratic framework, free flow of the information for the citizens suffers
from several bottlenecks including the existing legal framework, lack of infrastructure at
the grass root levels and an attitude and tendency of maintaining secrecy in the day to
day governmental functioning. To remove these unreasonable restrictions the Right to

Information Act, 2005 (RTIA-05) has been enacted by the Parliament. The Act provides
for freedom to every citizen to secure access to information under the control of public
authorities consistent with public interest, in order to promote openness, transparency
and accountability in administration and in relations to matters connected therewith or
incidental thereto. The Act is in accord with both Article 19 of the constitution as well
as Article 19 of the Universal Declaration of Human Rights, 1948.The act will enable the
citizens to have an access to information on a statutory basis. With a view to further this
objective, Section 3 of the Act specifies that subject to the provisions of this Act, every
citizen shall have the right to freedom of information. Obligation is cast upon every
public authority u/s 4 to provide information and to maintain all records consistent with
its operational requirements duly cataloged, indexed and published. It must be noted
that right to receive information from public authorities, which includes judiciary, is not
an absolute right but is subject to statutory and constitutional restrictions. For instance,
freedom to speech and expression as provided underArticle 19(1) (a) of the constitution
is subject to reasonable restrictions as provided under Article 19(2). Similarly, right to
know under Article 21 can be restricted by a procedure established by law which is just,
fair and reasonable. On the statutory side, under the Right to Information Act, 2005
(RTIA-05), a citizen is not entitled to an absolute freedom of information. In certain
cases information can be withheld from a citizen. Besides the RTIA-05 there may be
other statutes also where information may be withheld from a citizen. For instance, the
report of an inquiry made against a judge of High Court under the provisions of the
Judges Enquiry Act, 1968 may be withheld from the public by the Chief Justice of India
(CJI). In Indira Jaising v Registrar General, Supreme Court of Indiaan inquiry report was
made by the committee to the CJI, in respect of alleged involvement of sitting judges of
the High Court of Karnataka in certain incidents. The petitioner seeked the publication of
the inquiry report. The supreme Court held that it is not appropriate for the petitioner to
approach this court for relief or direction for release of the report, for what the CJI has
done is only to get information from peer judges of those who are accused and the
report made to the CJI is wholly confidential. It is purely preliminary in nature, adhoc and
not final. The court further held that in a democratic framework free flow of information
to the citizens is necessary for proper functioning, particularly in matters, which form
part of public record. The right to information is, however, not absolute. There are
several areas where such information need not be furnished. Even the Freedom of
Information Act, 2002 (now RTIA-05) does not say in absolute terms that information
gathered at any level, in any manner and for any purpose shall be disclosed to the
public. The inquiry ordered and the report made to the CJI being confidential and
discreet is only for the purpose of his information and not for the purpose of disclosure
to any other person. The court thus rejected the contention torelease the said report.
The court, however, made it clear that if the petitioner can substantiate that any
criminal offence has been committed by any of the judges mentioned in the course of
the petition, appropriate complaint can be lodged before a competent authority for
taking action by complying with requirements of law.
Right to information and Electronic governance:

Digital technologies and new communication systems have made dramatic changes in
our lives. Business transactions are being made with the help of computers. Information
stored in electronic form is cheaper and easier to store. Thus, keeping in view the
urgent need to bring suitable amendments in the existing laws to facilitate electronic
commerce and electronic governance, the Information Technology Act, 2000 was
enacted by the Parliament. The aim of the e-governance is to make the interaction of
the citizens with the government offices hassle free and to share information in a free
and transparent manner. It further makes the right to information a meaningful reality.
In a democracy, people govern themselves and they cannot govern themselves properly
unless they are aware of social, political, economic and other issues confronting them.
To enable them to make a proper judgment on those issues, they must have the benefit
of a range of opinions on those issues. This plurality of opinions, views and ideas is
indispensable for enabling them to make an informed judgment on those issues, to
know what is their true interest, to make them responsible citizens, to safeguard their
rights as also the interests of society and State. All the constitutional courts of leading
democracies have recognized and reiteratedthis aspect. In U.O.I v Association for
Democratic Reform the Supreme Court observed that the citizens of India have a right
to know every public act, everything that is done in public way by the public
functionaries. Public education is essential for functioning of the process of popular
government and to assist the discovery of truth and strengthening the capacity of an
individual in participating in the decision making process. The right to get information in
a democracy is recognized all throughout and it is a natural right flowing from the
concept of democracy. Thus e-governance and right to information are interrelated and
are two sides of the same coin. With the enactment of the Information Technology Act,
2000 more and more transparency is expected in governmental functioning by keeping
people aware of the States plan, policies, objectives and achievements.
Right to know about antecedents of election candidates:

In a democratic form of government, voters are of utmost importance. They have right
to elect or re-elect on the basis of the antecedents and past performance of the
candidate. For maintaining purity of elections and a healthy democracy, voters are
required to be educated and well informed about the contesting candidates. Such
information would include assets held by the candidate, his qualification including
educational qualification and antecedents of his life including whether he was involved
in a criminal case and if the case is decided, its result, if pending whether charge has
been framed or cognizance has been taken by the court. There is no necessity of
suppressing the relevant facts from the voters. In U.O.I v Association for Democratic
Reform the Supreme Court recognized this right of the voter. The court held that the
decision making process of a voter would include his right to know about the public
functionaries who are required to be elected by him. Moreover, Article (19) (1) (a) of the
constitution provides for freedom of speech and expression. Voters speech and
expression in case of election would include casting of vote. For this purpose,
information about the candidate to be selected is a must. In P.U.C.L v U.O.Ithe Supreme
Court held that in an election petition challenging the validity of an election of a
particular candidate, the statutory provisions would govern the respective rights of the

parties. However, voters Fundamental Right to know antecedents of a candidate is


independent of statutory rights under the election laws. Members of a democratic
society should be sufficiently informed so that they may cast their votes intelligently in
favour of persons who are to govern them. There can be little doubt that exposure to
public gaze and scrutiny is one of the surest means to cleanse our democratic
governing system and to have competent legislatures. The court further observed that
securing information on the basic details concerning the candidates contesting for
elections to the Parliament or State legislatures promotes freedom of expression and
therefore the Right to information forms an integral part ofArticle 19(1) (a). This Right to
information is, however, qualitatively different from the right to get information about
public affairs or the right to receive information through the press or e-media, though,
to a certain extent, there may be overlapping. The right to vote is a constitutional right
but not merely a statutory right; freedom of voting as distinct from right to vote is a
facet
of
the
Fundamental
Right
enshrined
in Article 19(1)
(a).
Overall
analysis
Human history is witness to the fact that all evolution and all progress is because of
power of thought and that every attempt at thought control is doomed to failure. An
idea can never be killed. Suppression can never be a successful permanent policy. It will
erupt one day. The Constitution of India guarantees freedom of thought and expression
and the only limitation being a law in terms of Article 19(2) of the constitution. Thought
control is alien to our constitutional scheme. Further, people at large have a right to
know in order to be able to take part in a participatory development in the industrial life
and democracy. Right to know is a basic right which people of a free country aspire in
the broaden horizon of the right to life in this age on our land under Article 21 of
the Constitution. That right has reached new dimensions and urgency. That right puts
greater responsibility upon those who take upon the responsibility to inform.
Thus it can be concluded that citizens have a right to information and right to know
about public affairs and governmental functioning. The legislature, realizing the need
and urgency of this requirement, has shown its sensitivity and positive attitude by
conferring upon citizens of India various statutory rights, which advance the Right to
information and expand its horizons to the deserving limits

Critical Appraisal To The Existing Framework of Freedom of Speech and Expression In India

I. Important Development In The Field of Freedom of Speech And Expression

Many important developments have taken place so far in the field of freedom of speech
and expression. For example- The Information and Broadcasting Ministry has recently
relaxed the empanelment norms of the Directorate of Advertising and Visual Publicity
which handles the advertisement activities for the government. As a result of that, a
large number of regional news and general entertainment channels would get

empanelled with the Directorate and would be given a greater share in the
governments
annual
advertisement
pie.
As freedom of speech includes the right to reply, thus, an initiative has been taken by
the Indian Express wherein it provides a column known as @ Write Back, in which an
opportunity is afforded to individuals to publish their replies against any report
pertaining to them. There is a need for a legal framework to check complaints and
criticism against judges. The public cannot scrutinize each and every decision given by
every
Court,
thus,
an
agency
should
be
there
to
monitor
this.
Another important development is The Judges (Inquiry) Bill, 2006 which seeks to
establish a National Judicial Council. The proposed Council would investigate complaints
by any person or upon receiving a reference from Parliament based on a motion. A
major drawback of the proposed Bill is that the Council would consist solely of the
members of the judiciary (CJI, two Supreme Court judges and two High Court Chief
Justices). Thus, the dream of an independent monitoring agency seemed far-fetched.
In present Bill, there is attempt only on accountability wherein, too, a prolonged allJudge affair renders it unfair. If a common man cannot chose the Court for his own trial
then how Judges can be allowed to choose the forum of their own choice for their own
scrutiny? Committee after committee, the Bill has made it extensively an all-Judge affair
knowing well the fact that a Judge hardly ever punishes a Judge. The ghost of
impeachment not only survives and exists but made more laborious, uncertain and
expensive. There is not even a provision that errant Judge under inquiry will be placed
under suspension and that after having found guilty will be compulsorily retired. Certain
suggestions
in
this
regard
are
welcome:
The possibly injurious scrutiny panel needs to be scrapped when investigation
committee is there. Provision for suspension of Judge under inquiry is a must if dignity of
jury and of the nation is to be maintained. Role of MPs be certainly excluded which can
sabotage entire remedial exercise just by raising the hands for no justifiable ground.
Impeachment provision should be by passed and deleted from the Bill. In the present
form,
the
Bill
deserves
to
be
withdrawn
for
redrafting,
accordingly.
Similarly, The Cinematograph Bill, 2010 has been lying in Parliament for quite some
time now. It is a timely exercise and an extremely relevant one. With the Ministry of
Information and Broadcasting seeking the participation of civil society and the general
public in suggesting and incorporating changes in the Bill, it is hoped that the Bill and
the subsequent amended Act shall serve to be an empowering piece of legislation that
shall allow Indian film-makers to build upon the base of excellence that they have
already created for themselves, and to experiment in newer and more thoughtprovoking
types
of
cinema.
Further, there is a growing acceptance of the phenomenon of whistleblower. A
whistleblower is a person who raises a concern about wrongdoing occurring in an
organization or body of people. Usually this person would be from that same

organization. The revealed misconduct may be classified in many ways; for example, a
violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud,
health/safety violations and corruption. Whistleblowers may make their allegations
internally (for example, to other people within the accused organization) or externally
(to regulators, law enforcement agencies, to the media or to groups concerned with the
issues). The whistleblower is considered a hero or a traitor, a do-gooder or a crank, a
role model or a non-conformist troublemaker depending on ones point of view.
Whistle blowing is a universal phenomenon. India has also had its share of prominent
whistleblowers
from
V.
P.
Singh
to
Manoj
Prabhakar
to
P.
Dinakar.
It is true that under normal circumstances, an organisation is entitled to total loyalty
and confidentiality from its employees. But when there is serious malpractice or when
peoples lives are at stake as in corruption and fraud in defence procurement; deaths
in encounter of innocent persons; toxic leaks from a chemical factory; non-adherence
to flight safety standards by an airline; creative accounting and false declarations by a
company; cheating and plagiarism in scientific research, for example the overriding
public interest may lie in protecting the publics right to be told, and the whistleblowers
right not to be punished for doing so. Whistleblower protection in India refers to
provisions put in place in order to protect someone who exposes alleged wrongdoing.
The wrongdoing might take the form of fraud, corruption or mismanagement. Initially,
India did not have a law to protect whistleblowers; however, the Public Interest
Disclosure and Protection to Persons Making the Disclosure Bill, 2010 was approved by
the Cabinet of India as part of a drive to eliminate corruption in the countrys
bureaucracy.
As far as the issue of trial by media is concerned, recently the Supreme Court has begun
to frame guidelines for reporting of cases in Media and it has taken up hearing in this
matter before a Constitution Bench from March 27, 2012 onwards. In this case, an
eminent senior counsel Fali S. Nariman appearing for Sahara India complained to the
Apex Court Bench regarding telecast of a news on a leading business news channel
concerning the above two parties. The channel allegedly aired the contents of a
proposal sent by two real estate companies of the Sahara group through their counsel to
Securities and Exchange Board of India (SEBI) although the same was at a very nascent
or preliminary stage. The Court expressed its distress over increase of such unfortunate
incidents where sub-judice matters are improperly (mis)reported in the media thus
affecting both the business sentiments as well as interfering with the administration of
justice.
Unfortunately, we have no system wherein judicial proceedings before a Court of law
are duly video-recorded much less than live coverage of Court proceedings as is the
practice in certain western countries like the U.S. If at least, there is an official recording
of a days proceeding, it to present a days proceeding, it to present a clear and
unambiguous picture of what actually transpired in the Court during a particular period
and the instances of misreporting (not biased reporting) would be wiped out to a large
extent. Noteworthy that the media has also received a pat from the higher judiciary
where it has done a yeomans service in bringing the real ruth before the Court by way

of sting operations or investigative journalism and thus facilitating in the conviction of


real culprits. Having said that, as it is wisely said that there is always a room for
improvement; hence suitable corrective measures are surely needed in cases where the
media goes berserk either for sensationalism or other reasons. After all, the role of
media is to supplement and not supplant an ongoing trial pending adjudication
before
an
appropriate
Court
of
justice.
The final verdict of the Court is awaited and, truly, it shall be a benchmark for
everybody to follow. Till any specific legislation, these guidelines would be the law on
this subject. The Honble Chief Justice has also directed that any party, who desires to
make submissions in the matter, may do so by way of intervention. Further, this
information has been put on the website for the notice of everyone. As far as internet
censorship is concerned, recently the Indian government asked the U.S. to ensure that
India-specific objectionable content are removed from the social networking such as
Face book, Google and YouTube. The government also wanted these service providers to
set up servers in India to order to regulate the content locally. The government had
previously also made attempts to get access to Yahoo and Gmail chatting/e-mails.
However, such attempts by the government to regulate the internet often failed
because of failure to fix liability, jurisdictional issues, clashes in public policies among
different nations, anonymity on the web etc. For example, it is not easy to sue a foreign
company with an address abroad in our Courts, similarly the issue of lack of jurisdiction
of Indian Courts also arise when a suit is to be filed against a foreign website.
As far as the electronic media is concerned, the Indian Broadcasting Foundation (IBF)
has adopted with suitable modifications the Ministry of Information Broadcasting Self
Regulation Guidelines for Broadcasting Sector draft version of 2008, which has been
formulated after a comprehensive consultative process by over 40 stakeholders from
across the overnment, civil society, NGOs, Industry. These Self Regulation Guidelines
(Guidelines), Content Code & certification rules sets out principles, guidelines and
ethical practices, which shall guide the Broadcasting Service Provider (BSP) in offering
their programming services in India so as to conform to the Programme Code prescribed
under the Cable Television Networks (Regulations) Act, 1995, irrespective of the
medium/platform used for broadcasting of the programme. These Guidelines have been
drafted to introduce greater specificity and detail with a view to facilitate self regulation
by the broadcasting industry and minimize scope for subjective decision by regulatory
authorities or the broadcasting service providers. The basic underlying principle of these
Guidelines is that the responsibility of complying with the provisions of the Certification
Rules vests with the BSP. The principles in these Guidelines are sought to be
implemented at the first instance through a self-regulatory mechanism of the BSP.
Regulation by forbearance, as present in the telecommunications industry, shall guide
the Broadcasting Content Complaints Council (BCCC) whilst enforcing adherence by the
BSP, with the guidelines. Such self-regulatory mechanism shall be subject to a credible
and time bound default/ grievance redressal mechanism, which shall function under the
guidance
of
the
BCCC.
The BCCC, a self regulatory mechanism of the broadcasting industry claimed to have

received 3,441 complaints in six months since its inception in June 2011, with maximum
against a Rakhi Sawant hosted programme and appearance of porn star Sunny Leone in
reality show Big Boss and that it had disposed of a majority of the complaints.
It is submitted that as far as television censorship is concerned, some concrete steps
need to be taken. As uniform guidelines cannot be formulated for every channel, a
system should be evolved where viewership segments are segregated. Additionally, the
public should be made aware as to what kind of programming could be expected on
each channel. Of course, some information must be provided with regard to what would
be suitable for children etc. A rating system could be very beneficial. Moreover, there
should be a strictly prescribed time slot for more adult programming.
The existing system is not free from lacunas and the researcher has identified the
following problem areas which need to be tackled for the smooth functioning of our
democratic framework.
II. No Provision Dealing With Protection of Individual Privacy

Privacy is that sphere of the life of an individual into which the Government cannot
interfere. It may at times be a pure right i.e. the right literally to be left alone in the
confines of ones house, so long as no unlawful activity is carried out. It may also be the
right to an unhindered exercise of some or the other constitutional right, so long as the
right is exercised in a private or personal arena. It is a protection of the basic inviolable
nature
of
the
human
personality.
In the Indian context, it embodies a freedom from unwarranted, arbitrary and
unnecessary surveillance, search and seizure. It signifies the power to decide what kind
of personal information may be disclosed, and the choice of whom the disclosure may
be made to. It is a safeguard of the exercise of choice in matters fundamental to our
existence. It is not merely an informational right, but a truly substantive right. However,
there is no specific legislation in India that affords to an individual protection of his
individual
privacy.
The exponential growth of the media, particularly the electronic media in recent years,
has brought into focus issues of privacy. The media has made it possible to bring the
private life of an individual into the public domain, exposing him to the risk of an
invasion of his space and his privacy. At a time when information was not so easily
accessible to the public, the risk of such an invasion was relatively remote. In India,
newspapers were, for many years, the primary source of information to the public. Even
then, newspapers had a relatively limited impact given that the vast majority of the
population was illiterate. This has changed today with a growth in public consciousness,
a rise in literacy and perhaps most importantly, an explosion of visual and electronic
media
which
have
facilitated
an
unprecedented
information
revolution.
This is not a hidden fact that media reporting often results in the invasion of individual
privacy. In an age of revolutionized communications and aggressive voyeurism, the

individuals privacy is under siege. But the law makers in India have shown scarce
concern on the issue. While in many other countries, there are now a variety of statutes
in place that seeks to protect these rights, Indian laws on the subject lag far behind. The
Indian Supreme Court has already made much headway in giving constitutional
protection to privacy by including it within the penumbra of personal liberty as
guaranteed by Article 21 and by inserting the wedge of judicial review to test the
reasonableness of penal laws authorized by Article 21. Of course, this aspect of privacy
concerns an individuals relation with the State but not with the media.
Investigative journalism is based on recognition of right to know. The Age of
Information is a ground reality today and a lot of power rises with the electronic media.
Issues like pornography and sleaze, and the right to air have emerged. In this context
it is useful to recall that a number of thinkers have cautioned against over-use of the
right to know. Mahatma Gandhi discouraged the publishing of too many books since
quality could not be ensured. Granting that the right to know may provide an
appropriate framework, yet rights adhere in an ethical groundwork which has never
been sufficiently recognized. As there are limits to the right to expression, so also there
should be limits to the right to know. At present, public institutions can continuously
collect information for the surveillance and control of individuals. The right to privacy is
infringed upon. In this context, should the right to know take precedence over the Right
to Secrecy? Constitutional safeguards already exist for this. But the problem is one of
ethics and rational cooperation, which are not seen much today and in the absence of
which
no
solution
is
possible.
Today, unlike yesterday, personal confidentiality is the subject of state-run robbery and,
therefore, the nation needs national privacy policy to protect individual rights in the
instant and automated information communication age.
III. No Specific Definition of Decency or Morality

The terms morality and decency come with their own baggage of value-laden
subjectivity and as such hold the potential to be the harbingers of denial of right to
freedom of speech and expression on the basis of transitory sentiments.
The Constitution permits the enactment of laws in the interest of morality and decency,
but the present laws fail to achieve this objective, because they are uncertain,
frequently oppressive and are prone to curb the legitimate expression of literary, artistic
and cultural ideas. The various laws and codes aimed at censoring pornography are
most unsatisfactory. The laws are mostly administered by executive officers who are not
familiar with literary and aesthetic values, and are not aware of modern trends in
creative art, and the psychological impact of erotic matter on the majority of people.
From time and again, starting from the Hicklin test to the preponderating social purpose
test, the Apex Court has devised a number of tests to judge whether a work is obscene
or not. There is so much that is vague, uncertain and undefined that it is impossible to
the objective about what is to be declared obscene and what should be held

unobjectionable. An even greater flaw in the law is that the evidence of experts cannot
be admitted to support the defence of public good. Therefore, all that an accused
person can say in his defence is that the material he has published was good literature
or good science, and it is left to the judge, who may know very little of literature or
science, to come to the conclusion whether the defence plea is good or not.
Undoubtedly, there are several legislations which put a check on the obscene element
in speech. There are laws which embody restrictions on the right to free speech in the
interest
of
decency
and
morality.
However, on a closer look, some loopholes appear to the forefront. For example- there is
no definite and clear definition of obscenity in law and it is required that the legislature
must remove this anomaly by giving a proper definition of obscenity. Secondly, in no
legislations has anywhere the men or women been categorized as the perpetrators of
such offences and hence no punishments prescribed. Further, the exceptions of law of
indecent representation permit such a depiction on good faith, however, good faith,
again has not been defined in any statute. Thus, many such anomalies make their
presence and they need to be attended by proper solutions. For example- the terms like
decency and morality can be given a wide connotation in the interest of the society.
Similarly, any indecent representation, if permitted for advancing the cause of art,
literature, science etc., must be looked at and interpreted by the judiciary very strictly.
Moreover, a National level Regulatory body is the requirement of the day which shall
oversee the public and private broadcasting of issues in order to sieve from them what
is indecent, and present before the public, a decent expression of ones freedom of
speech. Finally, the media fraternity is itself required to take a serious look of the issue
and do self- regulation and self monitoring with extreme care and caution. The system
of reward and punishment may be introduced by way of policies by The Press Council of
India whereby reward may be given to those who are able to portray women in a decent
manner; and likewise, punitive action may be taken against those who defy the norm.
Derived from Article 19 (2), constitutional morality is as a concept, very different from
traditional societal notions of morality or decency, which as public perceptions are everchanging and should not be held as the index for imposing restrictions on the rights
given by Article 19 (1)(a).It is also to be pointed out that the phrase decency or
morality has been, generally, interpreted in terms of the phrase obscenity, whereas
there may be certain expressions which have nothing to do with inculcating prurient
interests; nevertheless, they need to be prevented in the interest of decency or
morality. For example, subtle expressions preaching falsehoods, corruption, disregard
for marginalized Sections etc. Further, the latest version of obscenity is hard core
pornography and no provision covers the phrase and the problem gets aggravated in
the internet age. Thus, immediate steps are needed to tackle this issue.
IV. Too Broad A Definition of Official Secrets

It is pitiable that certain Secrecy laws are still continuing in the age of Right to
Information. It is a reality that punitive processes are sometimes unleashed even

against truthful publications including privacy of official secrets, defamation of persons,


spreading of disharmony or violation of censorship laws plus more severe penalties
under penal laws relating to national security, breach of privileges of the Legislature,
contempt of the Court and the like. Apart from the statutory secrecy provisions, the
state has other tactics to thwart the free flow information by gagging the press and also
by supplying false or half-true information through its electronic media i.e. Doordarshan
and Akashvani. The state power attempts to gag the press by putting economic
pressure and professional interference and thereby obstruct the free flow of information.
The citizens have a right to know but the government sometimes wishes to be
secretive. The object of Right to Information, 2005 is to balance peoples right to know
and interests of Government to preserve the confidentiality of sensitive information.
However, what information is sensitive is the prerogative of the government to
decide. While commenting on the Official Secrets Act, 1923, Ms. Rani Advani had once
said that in its application and interpretation the executive and judiciary have allowed
the interest of the State to be read as the interest of theGovernment currently in
power. Thus, the phrases like official secrets, sensitive information etc. give
considerable room to the government to be secretive under the garb of protecting the
national interest. What constitute public interest disclosures need to be clearly defined.
The legal protection should apply to specific disclosures only involving an illegality,
criminality, and breach of regulatory law, miscarriage of justice, danger to public health
or safety and damage to environment, including attempts to cover up such
malpractices. It is submitted that this issue needs to be addressed at all levels at the
earliest so that gagging orders by the government or even by the Courts do not
become a rule but an exception for truthful publications in public interest.
The fifth pay Commission in its report in 1997 advocated amendment in Official Secrets
Act to ensure transparency in Government functioning. The United Front government
constituted a committee to look into the atter and give necessary recommendations.
However, nothing concrete came out of it. There is lack of will power coming in the way
of concrete action. Analysts believe that the government must not delay repealing
Official Secrets Act particularly when there is right to information available now.
Recently there was a report in the Indian Express Newspaper wherein it was published
that two military units began moving towards Delhi without notifying to the government
of India raised a considerable alarm at highest levels in government and highlighted
issues about top level politico-military relation. The entire establishment tried to keep
this report under wraps; nevertheless, the same got published. The army called it a
routine fog time exercise but so many questions revolved around the movement. Given
the sensitive nature of the news, the vital question that arose was whether the alleged
leak of the report and its subsequent publication is covered within the free speech
protection or should it have been restricted on the grounds of security of state? Further,
should media have exercised some restraint while reporting the news?
In this regard, a public interest litigation was filed by a social activist and a freelance
journalist Nutan Thakur seeking a direction to the Prime Ministers Office to conduct an

inquiry to ascertain the veracity of the report and if the report was false, action should
be taken against those responsible for the publication of a false report on a sensitive
matter dealing with national security. The Indian Express Newspaper, on the other hand,
in
a
statement
said
that
it
stands
by
the
report.
The Allahabad High Court noted that the petitioner had expressed grave concern that
reporting on the subject, if permitted to continue may seriously interfere with the
handling of security matters by the army, particularly the movement of troops from the
strategic point of view in the field as well as peace areas. As a result, the High
Court passed an order banning the reporting of any news item by the print as well as
electronic media regarding the movement of army troops. The Court held that this is
not a matter of the kind which should require public discussion at the cost of defence,
official secrecy and the security of the country. The Court, however, dismissed the
Public interest litigation saying that it was issuing directions without interfering with
the independence of media and keeping in view the fact that the news items relating to
movement of troops has already engaged attention at the highest level in the defence
as
well
as
government.
As a result, the Ministry of Information and Broadcasting issued an advisory to all
private satellite TV Channels to strictly follow the High Courts order. However, the
Press Council of India Chairman Justice Markandey Katju said that the Council would
challenge the High Courts gag order in the Supreme Court holding that:
With respect to the High Court, I am of the opinion that the orders of the High Court are
not correct. The media has a fundamental right under Article 19(1)(a) of
the Constitution to make such publications, as it did not endanger national security. I
may add that the Indian army is not a colonial army, but the army of the Indian people
who pay the taxes for the entire defence budget. Hence, the people of India have a right
to know about army affairs, except where that may compromise national security. The
media did an excellent job in exposing the Adarsh and Sukhna scams in which senior
army officers were involved, and they were well within their right under Article 19(1)(a)
to do so. The PCI is a statutory body set up to preserve the freedom of press and for
maintaining and improving the standard of newspapers and news agencies.
Justice Katju defended the Indian Express Newspaper saying that the newspaper is a
responsible one which took eleven weeks to complete the investigation of the reported
troop investigation before deciding to publish the report. Thus, he rejected the blanket
ban on reporting troop movement citing national security and observed:
I am of the opinion that reporting troop movements near the Indian border or during war
time should be prohibited as that may aid the enemy and cause harm to our armed
forces by compromising national security. However, there can be no general prohibition
of
reporting
of
all
troop
movements.
It is submitted that the prohibition by the High Court was in the nature of a gag order

and the prohibition order was warranted only by going into the question whether the
news reporting was factually correct or not.30
V. Medias Interference With The Administration of Justice

The tension between the Courts and the media revolves around two general concerns.
The first isthat there should be no trial by media; and the second is that it is not for the
press or anyone else to prejudge a case. Justice demands that people should be tried
by
Courts
of
law
and
not
be
pilloried
by
the
press.
The power and reach of the media, both print as well as electronic is tremendous. It has
to be exercised in the interest of the public good. A free press is one of very important
pillar on which the foundation of Rule of Law and democracy rests. At the same time, it
is also necessary that freedom must be exercised with utmost responsibility. It must not
be abused. It should not be treated as a licence to denigrate other institutions.
Sensationalism is not unknown. Any attempt to make news out of nothing just for the
sake of sensationalisation has to be deprecated. When there is temptation to
sensationalize particularly at the expense of those institutions or persons who from the
nature of the office cannot reply, such temptation has to be resisted and if not it would
be the task of the law to give clear guidance as to what is and what is not permitted.
The judgments of Courts are public documents and can be commented upon, analyzed
and criticized, but it has to be in dignified manner without attributing motives. Before
placing before public, whether on print or electronic media, all concerned have to see
whether any such criticism has crossed the limits as aforesaid and if it has, then resist
every temptation to make it public. In every case, it would be no answer to plead that
publication, publisher, editor or other concerned did not know or it was done in haste.
Some mechanism may have to be devised to check the publication which has the
tendency
to
undermine
the
institution
of
judiciary.
It is imperative that Courts bear in mind that even judicial injunctions ought not to
breach constitutional guarantees. There is a public interest in the dissemination of
information. Information and opinions, however improbable they sound, are entitled to
be published. In cases where the subject matter of publication deals with issues of
governance, corruption, maladministration or issues of misconduct, a judicial gag order
ought never to be granted. Except in the rarest of rare cases, judicial gag orders are as
abhorrent
as
executive
restraints
on
the
media.
However, there is another viewpoint also to it according to which neither does media
reporting influences judges nor does it lead to miscarriage of justice. Admittedly, the
media has the right to be present and report Court proceedings, which presumably is
based on the medias role as a conveyor of information. It is no secret that the content
presented to the public is often inextricably laced with opinions, bias and subjective
notions of justice. Every effort should, therefore, be made by media to maintain the
distinction between trial by media and information media.

VI. Lack of Control on The Objectionable Contents on The Internet

Internet communications cross national territorial boundaries. Their global character is


one of their principal characteristics, so much so that, in the view of some
commentators, effective regulation by state authorities is impossible. Moreover, it is
arguably undesirable to attempt it. Website operators and ISPs might not know which
legal systems they will become subject to. As a result they might be prosecuted under
the obscenity or hate speech laws of, say, France or Germany, for communications
intended for computer users in the United States or England. Communicators in
cyberspace, it has been argued, would have to be aware of the libel laws in every
country from Afghanistan to Zimbabwe, if the Courts in any state where a defamatory
message was accessible could claim jurisdiction and apply its law. Attempts by one
jurisdiction to regulate communication on the Net would inevitably chill the exercise of
free speech rights in others, particularly in the United States where speech is very
strongly protected.Conflicts may occur, arising from the inconsistency between the
decision of a Court in one country regulating speech on the Net and that of a Court in
another
state
refusing
to
enforce
that
judgment.
When the Constitution of India was written, the outer space was safe and secure
because highly sophisticated equipments were not invented to encroach upon the
culture of our country. High-tech communication satellites in the outer space have
invaded most of our homes. Everyone knows that pornography is made available at a
very cheap rate. Nudity, sex, vulgarity and violence have gone abnormal, extreme and
beyond imagination. As a result, eve-teasing rape, house-breaking, pick-pocketing,
stabbing, killing and mass-massacre have become a part of daily news in our country.
The viewers are increasing and there is no possibility of their return. They print
everything they wish to poison our minds. Enemy countries vomit out poisonous
propaganda through their satellite channels. Our country is at a gross disadvantage
because we do not have any provision of law to stop them doing wrong, notorious,
nefarious, illegal and anti-national activities. This cannot be tolerated under the name of
any
international
treaty
or
universal
brotherhood
or
humanity.
To add to the problem, the identity of bloggers or persons posting comments on the
internet is protected, some people feel free to abuse, attack, defame, hate, hurt and
harm
others
without
fear
of
being
held
accountable.
The question arises is this the purported free speech which Google is
protecting?
Recently, a meeting of the officials from Google, Microsoft, Face book and Yahoo was
held with the Telecom Minister Mr. Kapil Sibal wherein, Mr. Sibal asked these internet
companies to screen from the web some derogatory, defamatory and inflammatory
content about religious figures and Indian leaders such as Prime Minister Manmohan
Singh and Congress President Sonia Gandhi. However, the executives showed their
inability to control the user generated content coming from India. The internet
companies argued that given the volume of user-generated content coming forming the
people, they cannot be held responsible for determiningwhat is and isnt defamatory as

disparaging Nevertheless, they assured the minister of looking into any specific
complaint
which
may
be
brought
to
their
notice.
It is submitted that our country should take a lead as the developing country and find
out a proper forum where the objectionable matters are heard. Otherwise what will
happen to the coming generation who do not respect moral, ethical, cultural, social and
human values? That is why there is a dire need to amend the Constitution abolishing the
distinction of inner space jurisdiction and outer space jurisdiction.
VII. Governments Unwarranted Control over The Media

Control of the media by government does not make any sense in times when we have
been overwhelmed by satellite television and the information revolution. The internet
brings all the newspapers of the world to our personal computer. The information
monopoly of the State violates the basics of the open society to which many of the
developing countries seem to be attuned with. The right to know actually becomes real
for the citizens when the media informs the public about what the government is doing.
People now look to satellite channels for information and entertainment and
conveniently sidetrack the state-run electronic media, which manipulates the news and
views to a great extent. Our press lacks maturity and needs training. Simultaneously we
need to work on the media ethics. Guidelines for journalists should be developed and
published, even circulated to the government and non-government organizations. Right
to know is too important to be entrusted to the media alone. The media must rise above
the personal interest and must cater to the larger national interest. Recently, on the
occasion of the launch of Kashmir Tribune, the Jammu and Kashmir Governor Mr. N.N.
Vohra
observed:
The role of media has increased manifold over the years and the impact of media
reports has acquired enhanced significance. It is a responsibility of media to maintain
visible impartiality through unbiased reporting. The media impacts governance, society
and the course of events. An objective and a balanced media coverage of varied
important issues relating to socio-economic development, governance and democracy
would make an important contribution in protecting and enlarging the public interest. An
excessive zeal to praise or blame cannot be the basis of good reporting.
On the same occasion, the Jammu and Kashmir Chief Minister Mr. Omar Abdullah
opined:
If there is too much harmony between the media and the politicians than either we are
not doing our job or you arent doing your job or perhaps both of us arent doing what is
expected of us. Competition is good in government, in the private sector and even in
the media and I hope that it will allow an honest reportage. I have always believed that
critical coverage is in fact far more beneficial than coverage that is based purely on
praise. My aversion comes to not critical coverage but unnecessarily or unfairly critical
coverage.

However, it is also true that the Government, sometimes, has to adopt the tool of
censorship to control expression which is against good taste and causes annoyance. An
example is the very recent announcement by the Union Human Resource Development
Minister Kapil Sibal of removal of a cartoon made back in 1949 by legendary political
cartoonist K. Shankar Pillai from an NCERT Book, Indian Constitution at Work. The
cartoon showed Ambedkar sitting on a snail with the word Constitution written on it,
holding a whip. Behind the snail stood Jawaharlal Nehru, apparently trying to goad the
snail on. The cartoon was meant to be comment on the slow pace of the framing of
the Constitution. The cartoon created uproar in the Parliament and was termed
insulting to Dr. Bhimrao Ambedkar. As a result, the minister assured the members that
the cartoon shall be removed from the NCERT textbooks. A similar incident happened
also during the days of Emergency when the famous cartoonist Abu Abraham made a
cartoon depicting the censorship regime of Indira Gandhi and the same was banned by
the
Indira
Gandhi
government.
All of over 50 cartoons liberally sprinkled through the pages of political science and
social science textbooks for classes IX to XII that have invited the ire of Parliament
target politicians, in particular former prime ministers Jawaharlal Nehru and Indira
Gandhi. Politicians are the subject of satire over pleading for votes to ticket distribution
to relatives, the possible criminal-politician nexus to walkouts in Parliament, being
evicted from the House by the Speaker and toppling of State Governments, to haggling
over a particular portfolio and supporting and opposing Bills and so on. As many as 13
cartoons, the sharpest in the book target Indira Gandhi. They show her presiding over
and overpowering an emaciated Cabinet, depict the Emergency, her picking state chief
ministers of her choice and crowning Sheikh Abdullah J&K chief minister, her pushing
V.V. Giri as president, and make a note of her literally sweeping polls post the Janta
Party rule, her discomfiture just before Emergency as well as her tiffs with the
Syndicate.
The 14 cartoons on Nehru make a reference to the China war, which was a big blow to
the former PM, the tiny opposition he faced, as well as the issue of states
reorganisation. Compared to the cartoons on Indira Gandhi, these are more goodnatured. There are at least two-three cartoons on Prime Minister Manmohan Singh, his
steering of the new economic policy along with Narsimha Rao, on the dialogue with
former Pakistan president Pervez Musharraf, the policy on East-Asian nations and so on.
Former PM Atal Behari Vajpayee, L.K. Advani, Jagjivan Ram, Charan Singh, Sardar
Vallabhbhai Patel, Morarji Desai, Lal Bahadur Shastri, V.P. Singh, M. Karunanidhi and
Rajiv
Gandhi
also
find
space
amongst
cartoons.
Following MPs objections to political cartoons in the NCERT textbooks of social science
and political science, the government set up a committee in May, 2012 headed by
ICSSR Chairman, S.K. Thorat. The Committee finally recommended the deletion of 21
cartoons and replacement of around 22 captions/notes. Further, it suggested several
modifications to be made in the text of the books from next year. E.g. it proposed that
the word Dalit should be replaced with SC, and apartheid with untouchability or
caste discrimination. The Committee noted that while cartoons are meant to provide

visual relief and to improve teaching and learning, sensitivity with respect to various
groups,
too,
has
to
be
taken
into
account.
However, it is submitted that there should be some rigorous researchbased method to
guide the decision-making process, as opposed to rejecting cartoons on the anaemic
grounds of political sensitivity and ambiguity. Then the discussion can turn away
from narrow considerations of personal interests and sensitivities, and towards a
rational debate that can serve as a vivid example of politics at its best.
The censorship regime in India, besides being state controlled is also, many a times,
influenced by social pressure. Though laws are there to govern and guide those in
charge of executing the legal censorship, but once the masses resort to protests,
attacks, verbal and physical, on those making the expression then the rule of law gives
up. Often, either the State buckles to public pressure to impose some sort of ban on the
expression, or those making the expression themselves step down. In rare
circumstances, the expression is allowed to prevail. Thus, in this area of extra-legal
censorship, strict policies and regulations are required, so that censorship is governed
by reason and not by popular sentiments.
VIII. Lack of Codification of Parliamentary Privilege

The very concept of Parliamentary and legislative privilege is outdated in an age of


information and accountability. The publics right to full knowledge about the
performance of their elected representatives in Parliament or in the assemblies is a
matter of larger public interest and must override unwarranted privileges and
immunities. Unfettered immunity yields opacity, not transparency, and is, therefore,
clearly
anathema
to
the
spirit
of
a
modern
democracy.
The authors of the Constitution intended that Parliament would define its privileges. This
is clear from the words of Article 105(3). It is time that privileges are precisely defined
and limited to the minimum that is necessary for protecting free debate in the House.
There is a need for codification of the privileges of the members of Parliament and
legislators and appropriate amendments to the Official Secrets Act to enable the press
to function properly and effectively.
IX. Unfair And Unethical Media Behaviour

With a view to create sensationalism in the era of TRPS, the media often indulges in
unethical behaviour, sometimes crossing the limits of decency. There is no dearth of
data to suggest that these kinds of reporting generate a lot of revenue for the media. Be
it circulation figures for the papers or TRP ratings for the TV channels, all of them take a
hike. The centrality of the issue is often lost in the way the media sometimes treats
certain incidents. There is no law which can compel a media outlet to give full and fair
information or prevent suppression, varnishing, garbling and distortion of facts, or
motivated reportage or mixing comments with facts. Only journalistic ethics may be
invoked against such misconduct. However, there is another side to it also. Freedom of

the press stems from the right of the public, in a democracy, to be informed on the
issues
of
the
day,
which
affect
the
public.
However, the impact of media is not always positive especially on young minds. In a
programme on Star Plus Satyamev Jayate, the host Aamir Khan teaches the children
how to protect themselves against sexual abuse. Same day, Sony premieres the
Kareena Kapoor-Imran Khan starrer Ekk Main Aur Ekk Tu. Without any warning from
the censor bosses or the TV channel, one watches in a party scene at the films
beginning, a matronly lady touch Imrans derriere in the most improper manner, while
winking lewdly. Surfing channels, one finds Zee TVs reality show Dance India Dance,
featuring child artistes. A five-year old girl shakes her hips, spreads her arms to do belly
dance while shaking something that was absent in the anatomy of a child of her age,
and winks suggestively. The important question that arises is what kinds of values is a
child
inheriting
from
the
popular
media?
Very recently, a cartoon of a famous Italian football striker Mario Balotelly published in
the Italian daily newspaper Gazzetta dello sport received a lot of criticism from the
readers. The cartoon of the black Italy striker portrayed him as King Kong on top of
Londons Bigben swatting away footballs, showing the striker who had conquered
England in the quarter final football match of Euro Cup 2012. The incident raised a lot of
hue and cry in Europe as it was considered a racist comment on the Italian player.
However,
the
newspaper
later
published
an
apology
for
the
same.
It is submitted that once the damage is already done, whether publishing an apology
can undo the harm. Further, is there any mechanism hereby the media could be
prevented from committing such a blunder rather than taking a corrective measure later
on? Thus, the regulatory framework on the media needs to be evaluated. There is
definitely a need of self regulation in the media, besides framing the code of ethics to
be observed by it. Moreover, failure to observe the code should result in penal
sanctions.
Recently in India, the Maharashtra Home Minister R.R.Patil took cognizance of media
coverage of rave parties busted by the police. It was alleged that police officials
themselves tip off the media before conducting such raids, and often people not
involved in such parties are also filmed as they happen to be in the vicinity. The
sensationalising of such events has triggered fear in the minds of the general public and
the Home Minister assured that guidelines would be issued to the media regarding
reporting
about
such
events.
The media industry has established tribunals that affect to regulate media ethics
through adjudicating complaints by members of the public who claim to have been
unfairly treated by journalists and editors. Complaints about newspapers and journals
may be made to the Press Complaints Commission, a private body funded by
newspaper proprietors. The Press Complaints Commission has formulated a Code of
Practice to be followed by the press. It has no legal powers, but its adjudications will be
published by the paper complained against, albeit usually in small print and without

prominence. The Press Complaints Commission has been regarded as public relations
operation, funded by media industries to give the impression to Parliament that the
media organizations can really put their houses in ethical order without the need for
legislation. Similarly the National Union of Journalists has a code for its members, which
they are all expected to follow. However, the code is seldom enforced.
Movies today seem to explore explicit themes of sex and violence unabashedly, and not
surprisingly, attract an audience too. But how these are advertised in the public space
needs to be examined. Gun holding and scruffy hooliganism have become sexy, cool
and commonplace in our movies. And randomly shooting at people is seen as fun. It is,
undoubtedly, true that one can decide on not watching or taking ones children to watch
such movies. But when newspapers, traditionally seen as family reading give pride of
place to such ads and posters, it makes it much harder to explain why being rowdy and
using
guns
is
not
right.
The trend of media houses reporting murders, rapes and burglaries accompanied by
graphic descriptions that outshadow much of the other news. An unfamiliar reader
might even believe that we are a nation of bad governance punctuated by perverted
and violent actions. And one shudders to think what children who read these
newspapers might be thinking. It is, no doubt, difficult to raise ones children totally
sheltered from the negative influences of the world; but to be forced into believing that
violence
is
a
natural
way
of
life
is
undesirable
and
wrong.
The film industry and media need to review this with more responsible intentions.
Sensational headlines that insinuate excessive sex and violence are irresponsible
attempts to garner readership or viewership, and influence impressionable minds.
Surely, there is a lucrative market for such content. But there must be a way so as not
to bring it so openly into the public sphere and to stop glorifying it. Should media too
start getting ratings of A, U/A and U? Or can we introduce some regulations for how
headlines and movie posters and advertisements appear in newspapers? The Indian
Broadcasting federation has made a positive attempt to address public opinion on the
objectionable content. Can the print media dare to follow a self-regulated code of
ethics?
The integrity of electronic media was questioned very recently when a Pakistans TV
Channel Dunya telecasted a two hour interview of a real estate tycoon Malik Riaz
Hussain who, on an earlier occasion, had alleged having paid to Chief Justice Iftikhar
Chaudharys son Arsalan Iftikhar, Rs. 342.5 million to influence cases in the Supreme
Court. A two-judge bench of Pakistan Supreme Court had asked the Attorney General to
take strict action under the law against the Chief Justices son, the tycoon and his soninlaw. Meanwhile, an interview was aired between Hussain and two top TV anchors
Mubashir Lucman and Meher Bukhari regarding this episode. However, the said
interview was trapped in a controversy when certain videos got leaked and emerged on
YouTube and other social media, appearing to have been shot during advertisement
breaks in the interview. The videos showed the TV anchors discussing questions and
rehearsing answers with Hussain. The anchors were seen coaching Hussain, so much so

that the videos gave the impression that the entire video with Hussain, who is known to
be close to political parties and security establishment was scripted. There had also
been rumours regarding Hussain paying off several top TV anchors for years to ensure
positive coverage for himself. All this episode has, infact, raised serious issues regarding
lack
of
accountability
in
the
electronic
media.
Reacting sharply to the aforementioned incident, the full Court of 16 judges of the
Pakistan Supreme Court formed a two-member committee to investigate the
controversial off-air clips during a two-hour interview with Riaz aired by a private
television apparently designed to further malign the Chief Justice and the Court. The
controversial clips brought to the surface inner rivalries of media men and barons and
indicated that the interview was a fix in which Riaz was found feeding anti-Chief Justice
questions to two anchors and receiving calls from the management and government
figures prompting the anchors. The registrar of the Apex Court said the intention of the
programme was to defame the judiciary as planted questions were asked from Riaz in
the interview. The Apex Court directed Pakistan Electronic Media Regulatory Authority
(PEMRA) to present a complete report on the issue to the Supreme Courts Registrar.
Again, one Pakistani channel Ary Digital TV incurred a lot of criticism from the public for
showing live on the television the conversion ceremony of a Pakistani Hindu to Islam.
The incident raised questions about media ethics as allegations were casted on the
channel for showing such a live coverage of an individuals personal matter for TRPs.
The Lahore Hindu Sabha felt hurt because of the telecast and alleged that such an
incident has created a lot of pressure on it. It was argued that religious conversion is a
very personal matter and the electronic media should refrain from the telecast of such
like
incidents.
Another recent incident involving the sexual assault of a woman on the streets of Assam
Capital brought into focus NewsLive, an Assamese television channel, for the role it
played in reporting the said incident. In fact, there were allegations that one of its
reporters orchestrated the molestation. As a result, the reporter and the editor-in-chief
resigned from their posts. The whole incident raised a lot of questions regarding media
ethics, sensationalizing of trivial incidents, dichotomy between print and electronic
media etc. The Assam channels beamed graphic images of the slaughter, assault and
stripping and the question was whether such incidents really need to be shown in such
graphic detail? Further, who is to take responsibility for the mental trauma suffered by
the victim whose images were shown, time and again, on the channels? And, how is it
always the camera crew that gets the news in open public spaces and not the police?
It is further submitted that while reporting any incident of national importance, nobody
can hijack the spirit of national interest under the guise of news, interview or opinion
through the media. The Cable Television Network Act should be modified for public
good. The government must have powers at first-hand to stop any type of anti-Indian
propaganda
with
beautiful
and
misleading
coverage.
In recent years, corruption in the Indian media has gone way beyond the corruption of

individual journalists and specific media organizations, from planting information and
views in lieu of favours received in cash or kind, to more institutionalized and organized
forms of corruption wherein newspapers and television channels receive funds for
publishing or Broadcastting information in favour of particular individuals, corporate
entities, representatives of political parties and candidates contesting election, that is
sought
to
be
disguised
as
news.
Such like incidents raise concerns about how media is flouting ethics in the race of
becoming big power houses. Thus, there is a need to ensure that the right of freedom of
media is exercised responsibly. It is for media itself and other concerned to consider as
how to achieve it.
X. Lack of An Effective Media Policy

The increasingly complex and elusive media landscape has thrown fresh challenges to
an unsettled ecosystem of media policy in India. Advanced communications
technologies have fundamentally altered the ways in which information and meanings
are delivered, organized and received. These new advancements call into question the
efficacy of existing policy approaches to media, including the still-dominant
conventional media. The multiple bills introduced in the last decade reveal a
fragmented framework shaped as much by the Indian states staggered acquiescence to
corporate interests as by the entrenched colonial structures of governance aimed at
reining in the media, or using the technologies for targeted surveillance. Regulatory
authority is currently divided between several government departments, even as the
Communication Convergence Bill (2001) and Broadcasting Service Regulation Bill (2007)
are still far from realizing their stated objective of introducing a comprehensive and
coherent policy framework. It is thus one of the most crucial moments for media policy
discussions to funnel their energy towards a meaningful debate, since the unsettled
character of todays advanced communication systems is not our burden; it is our
chance
to
act.
The Press Council of India (PCI) Chairman Markandey Katju, very strongly argues that an
independent body is needed to monitor Indian media, because self-regulation bodies
(like the News Broadcasters Association and Indian Broadcasting Foundation) dont
work. Media people often talk of self-regulation. But media houses are owned by
businessmen who want profit. There is nothing wrong in making profits, but this must be
coupled with social responsibilities. The way much of the media has been behaving is
often irresponsible, reckless and callous. Yellow journalism, cheap sensationalism,
highlighting frivolous issues (like lives of film stars and cricketers) and superstitions and
damaging people and reputations, while neglecting or underplaying serious socioeconomic issues like massive poverty, unemployment, malnourishment, farmers
suicides, health care, education, dowry deaths, female foeticide, etc., are hallmarks of
much of the media today. Astrology, cricket (the opium of the Indian masses), babas
befooling the public, etc., are a common sight on Television channels. Therefore, Katju
suggests:

If the electronic media also comes under the Press Council (which can be renamed the
Media Council), representatives of the electronic media will also be on this body, which
will
be
totally
democratic.
He further, observed that if the broadcast media claims selfregulation, then on the same
logic everyone should be allowed selfregulation. Why then have laws at all, why have a
law against theft, rape or murder? Why not abolish the Indian Penal Code and ask
everyone to practise self-regulation? The very fact that there are laws proves that
selfregulation is not sufficient; there must also be some external regulation and fear of
punishment. At the same time, he clarified that he wants regulation of the media, not
control. The difference between the two is that in control there is no freedom, in
regulation there is freedom but subject to reasonable restrictions in the public interest.
The media has become very powerful in India and can strongly impact peoples lives.
Hence
it
must
be
regulated
in
the
public
interest.
It is true that currently Press Council of India (PCI) has no control ver electronic or digital
media though of late a high demand is being raised for the same particularly by present
PCI Chairman, Markandey Katju. Undoubtedly, in the contemporary times, we do need
an integrated National Media Council which has adequate control over every aspect of
news dissemination whether by press, news broadcasters or news websites.
Capital Punishment V. Human Rights

Does the society need capital punishment to punish its convicts or are we taking away
the lives of convicts who have every right to live on this earth.
I think life is sacred whether it is abortion or death penalty- Tim Kaine
Death penalty or capital punishment is a legal process wherein a person is put to death
by a state in accordance to a crime committed. The word capital comes from the Latin
word capitalis (of the head). Crimes that result in death penalty are known as capital
offences
or
capital
crimes.
Capital punishment has been used over the years by almost every society in order to
punish the guilty for some particular crimes such as punishment for premeditated
murder, espionage, treason, or as part of military justice. In some countries sexual
crimes such as rape, adultery and sodomy carry the death penalty, so does religious
crimes such as apostasy (the formal renunciation of the State religion). In many
retentionist countries (countries that use death penalty) drug trafficking is also a capital
offense. In China, human trafficking and serious cases of corruption are also punished
by
the
death
penalty.
Only 58 nations (including India) are actively practicing capital punishment, whereas 95
countries
have
abolished
the
use
of
capital
punishment.
Back in 1947 India retained the 1861 penal code which provides death penalty for

murder. It has been estimated that 1422 executions have taken place in 16 Indian states
between 1953 and 1963; and it is hard to measure the rate of death sentence execution
between 1980 and 1990. It is estimated that 2 to 3 persons were hung to death every
year.
In the Judgment of Bachan Singh v/s State of Punjab (1980)2SCJ475, 1980, the
Supreme Court ruled that death penalty should only be used in the rarest of rare
cases, but does not give a definition as to what rarest of rare means.
There has been a huge debate around the world over the use of death penalty; whether
it should exist or not. Every man has a right to live. Article 21 of the Indian constitution
provides to its citizens protection of life and personal liberty no person shall be
deprived of his life or personal liberty except according to procedure established by law.
This
exception
to
life
has
created
a
dilemma
across
the
world.
Is the judiciary valuing innocent lives which have perished to that of a person
committing a heinous crime such as murder? Do criminals who commit a heinous crime
such as murder lose the right to live on this earth? Are innocent convicts being
executed? Does death penalty take away the right for future appeal that would have
been filed by the convict? What is the remedy to wrong executions? Does death penalty
to a convict provide proper remedy to the family that has lost its member and gone
through the horror and pain of losing its loved one? These are just the few questions
that are being debated across the world in every society over the legality or legitimacy
of
death
penalty
whether
it
must
exist
or
be
eradicated.
Crime rates have not decreased in spite of death penalty or capital punishment in India
or any other country with such practices. The death rate in India per 1000 people was
reported at 8.04% in 2010 where half of it were criminal homicide, the inclusion of death
penalty hasnt provided any Midas touch to bring down the death rates.
Many writers and thinkers are to a conclusion that death penalty is partial to individuals
because Ajmal Kasab a terrorist from Pakistan who was one of the accused in the
Mumbai attack, 2008 (also known as 26/11), who was captured alive by the police and
after due legal process and production of proper evidence he was found guilty for the
terrorist attack and was charged for possession of dangerous weapons, was sentenced
to death by the Supreme Court of India on 29th August 2012 but has not yet been
executed. Instead he had filed a mercy petition to the President of India but was
substantively hanged after much delay on November 21,2012, this delay has kept the
convicts in death row for several years. There are 26 mercy petitions pending before the
President of India where some are dated back to 1992. The common people are
executed faster. This brings about a sense of partiality and forms a loophole in our own
judicial system. The death penalty is implemented or executed rarely. Out of 300
murderers only 1 gets a death penalty. Studies have shown that death penalty has not
been a deterrent because according statics death penalty and murder rates have a
positive co-relation which means; where death penalty lies murder rates are high.
According to a survey report many police chiefs and other law enforcement officers

death

penalty

is

not

deterrent

to

people

who

commit

violent

crimes.

People who commit murders do not think of the consequences or the punishment that
they might go through. The reason behind this is that the act done is mostly
spontaneous or an emotional outburst and is at the spur of the moment, it is very
unlikely
that
they
are
mentally
stable.
According to recent studies, life imprisonment costs 10 times lesser than when a person
is executed after a long process or the bureaucratic process that has to be undergone
for
a
person
to
be
executed.
There is a speculation that death penalty is the worst way of violating human rights,
because right to live is the most important right. A few believe that judicial hanging is
one of the forms of legal murder.. The mental torture that a person goes through while
being executed is far beyond imagination. It is inhuman and a monster within the
society
some
believe.
I think capital punishment works great. Every killer you kill never kills again Bill
Mayer
But then there would be total anarchy if death penalty would be abolished because
everyone fears death, who would want to end their life? So death penalty may act as a
deterrent for future crimes that are going to be committed. Abolitionists may contend
that death penalty should be abolished because human life is precious and cannot be
valued for anything, but then it is the article of faith it treats the human not like animal,
instead of death penalty honor humans with dignity. A person who has committed a
crime is aware of his mistakes and he is alone responsible for his act and consequences.
Executions
are
done
keeping
in
mind
the
safety
of
the
public.
Executing a convict may not bring back a person who is already dead , but executing
the convict, future acts may be prevented. In order to ban death penalty in India, the
public should be convinced that justice can be provided without executing the convict
by brutality (there are attempts being made for painless executions, but death is death
and it is inevitable). However, abolishing death penalty may lead to rise in crime rates,
laws will be broken more often and various kinds of illegal vigilante style justice may
rise.
There can be no end to this debate because until heinous crime exits, there will be
capital punishments.
Right To Information Act Boon Or Bane

The Right to Information Act, 2005 (RTI) is a Central Legislation to provide for setting
out the particular regime of right to information for citizens. The government of India
enacted Right to Information Act in the year 2005 and which came into force on October
12, 2005. It has replaced the Freedom of Information Act 2002. This act is applicable
throughout India except the state of Jammu and Kashmir. (Jammu and Kashmir has a

similar

act

which

was

enacted

in

2009.)

The enactment of this Act encouraged participatory democracy where people have the
right to know. In the case of R.P.Limited v. Indian Express newspapers the Supreme
Court has read into article 21 of the the constitution regarding the right to know. To
quote the Supreme Court Right to know is a basic right which citizens of a free country
aspire in the broader horizon of the right to live in this age in our land under Article 21
of
the Constitution.
India has the worlds largest democracy where people elect their own representatives.
So people have a right to know what the representatives elected by them are doing for
their welfare. People have got the powers to obtain copies of permissible government
documents, inspect permissible documents and inspect permissible government works
and samples. People can submit a request to the P.I.O or to the A.P.I.O who forwards the
request to the P.I.O to obtain the desired information with the prescribed fee in writing
or electronically. The tax payers of the country have a right to know how the funds are
being utilized by the government for their welfare. It builds trust on the government as
almost every action and rationale behind every decision of the government is clearly
visible
to
the
people.
It is a sad state of affairs that we need an act to enforce our basic rights. Right to
information is a fundamental right of all human beings. Right to information was
provided to all citizens in Article 19 though it was not expressly stated. This Act is an
extension of the article 19(1) (a) right to freedom of speech and expression.
The Act is one of the means of arousing the public opinion by spreading public
awareness. It is now very easy for the masses to find out the reason behind the delay in
the government works and projects taken up by the public bodies. The large number of
RTI applications that are being filed is a clear proof of the interest of the general public
in the functioning of public bodies. Many NGO s and social activists have made good use
of
this
Act
to
help
the
public.
RTI is not an expensive affair as it involves a nominal charge of just Rupees Two per
page for the information sought and Rupees Ten in cash to be paid with the application
for court fees stamp. However, if the information seeker falls under the below poverty
(BPL) line information given to him will not be charged. This makes the Act accessible to
all i.e. the rich and the poor. In case there are additional efforts in gathering the
information extra charges can be levied. It is not only necessary for the people to abide
by the decisions taken by the public bodies they also have a right to know how these
decisions were arrived at. Therefore, this Act has given the people the right to inspect
the
file
notings.
The RTI act has helped in promoting transparency and accountability. Public dealings are
no more a secret as this was the main cause of misuse and abuse of power and
corruption. The Act has put a check on all this. It makes the elected representatives
accountable to the people for the promises made by them and the works and projects

taken up and executed by them. Any work or any project that is useful or beneficial to
the public which has been held up due to vested interests of the elected
representatives, through this act people can obtain the information and question the
delay. It also helps in curbing bureaucratic red-tapism. By promoting transparency and
accountability there has been a reduction in corruption. The funds of the country cannot
be diverted for private use of people in power as it is easy to obtain any kind of
information.
The RTI Act provides for the establishment of central information (Section 8) and state
information commission (Section 10) through gazette notification of the central
government and state government respectively. The information commission has the
duty to receive complaints from persons who have not been able to submit their request
for information as there is no PIO appointed in their area, who has been refused the
information requested for or received no response within the stipulated time, who feels
the fees charged is not reasonable and who feels the information received is false
incomplete or misleading. The commissions are vested with the powers of civil court
also. This provision of the act makes the act more citizens friendly.
Central Information Commission will send an annual report to the Central Government
on the implementation of the provisions of this law at the end of the year. The State
Information Commission will send a report to the state government on the same.
Central Government will table the Central Information Commission report before
Parliament after the end of each year. The concerned State Government will table the
report of the State Information Commission before the Vidhan Sabha. This makes the
administration of the country and the state more transparent. A track of the number of
requests received by the PIOs number of requests rejected etc can be kept)
Section 20 of the Information Act has imposed penalties on the public information
officers who fail in providing information in time. So this acts as a deterrent in the minds
of the officers which enables them to work properly without any bias. Though the RTI
Act has been an effective tool for the public it does have a few loopholes which may
prove dangerous to the smooth functioning of the democratic machinery.
Misuse of the information by people for their ulterior motive or vengeance is the biggest
drawback of the act. Section 6(2) of this act states that there is no need for the
information seeker to give any reason as to why he requires the particular information
and he need no give any personal detail also. It is practically also impossible to check
the background and credentials of every person who files an application under this act
to seek information. In the case of V.V. Minerals V. Department of Mining geology and
others3 Madras High Court held that the information seeker can obtain information for
any purpose and the information can be put to any use. Unless the information sought
comes under the exemption clause under the Act it should be provided to the applicant.
He can himself misuse the information or leak the information to an external agency
which may take undue advantage of the information given. By providing the information
about the government officers they are put to risk. The information seekers who apply
electronically or by hand through printed application forms can be made to upload or

write their adhar card number or may be asked to provide any identity proof so that the
details of the person are with the government. This creates a sense of responsibility on
the information seeker and he would make only the right use of the information
obtained
by
him.
Sometimes the public information officers disclose only part of the information and not
the full information because of prejudices and biases stating reason s that it is in the
best interest of the public. In the case of R.K. Gupta v. ITAT the full bench stated that
when a specific law lays down the scope the range of information to be disclosed to a
person facing specified action, it will be a sure interference if larger range of information
is
allowed
under
the
RTI
Act.
Right to information is not absolute. Section 8 of the RTI A excludes matters relating to
national security, sovereignty, foreign government and law enforcement. Information on
defense is available to all foreign countries through newspapers but it is exempted from
this Act and our own citizens do not have access to such information. Such exemptions
must be reduced for the proper functioning of this act. Section 4(2) of the RTI Act allows
the public authority to reveal information that is personal though it infringes the right to
privacy
of
an
individual
in
the
interest
of
larger
public.
According to section 23 of the Act, lower courts are barred from entertaining suits or
applications
against
any
order
made
under
this
Act.
In order to harness the potential of the RTI it is necessary for the public to be made
aware
of
the
act.
The
state
government
under
section
26(1)(a)(b)
& (c) required to organize awareness programmes to educate the public but in reality
nothing of this sort is done. Conducting training workshops for PIOs will help in better
implementation
of
the
act.
It is difficult to decide as to if right to information is a boon or a bane to our country. The
RTI Act has helped to raise the feeble and unheard voice of the Indian public. It has
created a sense of responsibility not only on the officials but also on the people. It is
encouraging participative democracy. It has built a sense of involvement in the people.
At the same time RTI might cause the breakdown of the constitutional machinery which
may prove dangerous to our country if it continues to function with the existing
loopholes. However measures have to be taken to improve this Act and make sure that
it serves the ultimate purpose for which it was enacted. The RTI Act has been enacted to
do good to the society and the people. Hope the RTI Act is utilized to the fullest extent
for the welfare of the public.
John Lockes Social Contract Theory and the Constitution of India: Convergence and
Divergence

Social Contract Theory, nearly as old as philosophy itself, is the view that persons moral
and/or political obligations are dependent upon a contract or agreement among them to
form the society in which they live. Socratesuses something quite like a Social Contract

argument to explain to Critowhy he must remain in prison and accept the death penalty.
However, Social Contract Theory is rightly associated with modern moral and political
theory and is given its first full exposition and defense by Thomas Hobbes. After
Hobbes, John Locke and Jean-Jacques Rousseau are the best known proponents of this
enormously influential theory, which has been one of the most dominant theories within
moral and political theory throughout the history of the modern West. In the twentieth
century, moral and political theory regained philosophical momentum as a result of John
Rawls Kantian version of Social Contract theory, and was followed by new analyses of
the
subject
by
David
Gauthier
and
others.
So, basically, it was Hobbes, Locke, Rousseau and Kant who expounded the Social
Contract Theory. According to this theory, the origin of the state is due to general
agreement freely entered into by equal and independent individuals living in a state of
nature to form themselves in to a community and obey a government established by
them for the protection of their natural rights. According to this theory, the state is a
result of an agreement between the people to unite together at the first instance, and
then an agreement between the people and the ruler by which the authority and power
was
given
to
the
ruler.
Social Contract Theory expresses two fundamental ideas to which the human mind
always clings the value of liberty; the idea that will and not force is the basis of
government; and the value of justice or the idea that right and not might is the
basis of all political society and of every system of political order.
The theory seeks to explain the formation of societies and governments. Despite the
great variations on some points, the Social Contract Theory mainly focuses on the
voluntary consent that people give to the formation of the government.
Austin had criticized the theory of Social Contract on the ground that this theory cannot
stand the test of scrutiny for there is hardly any historical evidence available showing
that any political organization had been established in this manner. Sir Henry Maine also
does not believe in the theory of the Social Contract. He says that in the primitive
society there was hardly any value of promise. Moreover, in primitive society, he
believes, the unit of society was not the individual but the family.
Although the antecedents of Social Contract Theory are found in antiquity, in Greek and
Stoic philosophy and Roman and Canon Law, as well as in the Biblical idea of the
covenant, the heyday of the Social Contract was the mid-17th to early 19th centuries,
when it emerged as the leading doctrine of political legitimacy. The starting point for
most Social Contract theories is a heuristic examination of the human condition absent
from any political order that Thomas Hobbes termed the "state of nature". In this
condition, individuals' actions are bound only by their personal power and conscience.
From this shared starting point, Social Contract theorists seek to demonstrate, in
different ways, why a rational individual would voluntarily consent to give up his or her
natural
freedom
to
obtain
the
benefits
of
political
order.

Hugo Grotius (1625), Thomas Hobbes (1651), Samuel Pufendorf (1673), John Locke
(1689), Jean-Jacques Rousseau (1762), and Immanuel Kant (1797) are among the most
prominent of 17th- and 18th-century theorists of Social Contract and natural rights.
Each solved the problem of political authority in a different way. Grotius posited that
individual human beings had natural rights; Hobbes asserted that humans consent to
abdicate their rights in favor of the absolute authority of government (whether
monarchial or parliamentary); Pufendorf disputed Hobbes's equation of a state of nature
with
war.
However, it was the idea of natural rights that played an important role in the legal and
political philosophy of Locke. He, in fact, made life, liberty, and property, his three
cardinal rights, which greatly dominated and influenced the Declaration of American
Independence in 1776. Lockes view was that the state was designed to guarantee and
protect natural rights of the individuals. His inalienable rights of the individual came to
be embodied in many Constitutions and were guaranteed to the individual.
John Lockes Social Contract Theory

John Locke (29 August 1632 28 October 1704), was an English philosopher and
physician regarded as one of the most influential of Enlightenment thinkers and known
as the "Father of Classical Liberalism". Considered one of the first of the British
empiricists, following the tradition of Francis Bacon, he is equally important to Social
Contract Theory. He developed his Social Contract Theory in his famous book Two
Treatises on Civil Government (1690). His work greatly affected the development of
epistemology and political philosophy. His writings influenced Voltaire and Rousseau,
many Scottish Enlightenment thinkers, as well as the American revolutionaries. His
contributions to classical republicanism and liberal theory are reflected in the United
States
Declaration
of
Independence.
The new political theories which emerged as a result of renaissance, favored absolute
sovereignty of the State- undermining the importance of the individual. Therefore, in
order to support the rights of the individual against the absolute power of the sovereign,
a new interpretation of the natural law and Social Contract theories became more or
less necessary. John Locke had witnessed the Glorious Revolution of 1688 and the wave
of individualism in England which greatly influenced the political and legal theories in
Britain at that time. He therefore, came out with a new interpretation of the Social
Contract
rejecting
Hobbes
earlier
concept
of
state
of
nature.
State
of
Nature
Locke stated that the life in the state of nature was not as miserable and brutish as
depicted by Hobbes, instead it was reasonably good and enjoyable. Unlike Thomas
Hobbes, Locke believed that human nature is characterized by reason and tolerance.
Like Hobbes, Locke believed that human nature allowed men to be selfish. In a natural
state all people were equal and independent, and everyone had a natural right to
defend his Life, health, Liberty, or Possessions". According to him, the state of nature
was a golden age except that the property was insecure. Property plays an essential

role in Lockes argument for civil government and the contract that establishes it.
According to Locke, private property is created when a person mixes his labor with the
raw materials of nature. So, for example, when one tills a piece of land in nature, and
makes it into a piece of farmland, which produces food, then one has a claim to own
that piece of land and the food produced upon it. (This led Locke to conclude that
America didnt really belong to the natives who lived there, because they were, on his
view, failing to utilize the basic material of nature. In other words, they didnt farm it, so
they had no legitimate claim to it, and others could therefore justifiably appropriate it.)
Given the implications of the Law of Nature, there are limits as to how much property
one can own: one is not allowed to take more from nature than one can use, thereby
leaving others without enough for themselves. Because nature is given to all of mankind
by God for its common subsistence, one cannot take more than his own fair share.
Property is the linchpin of Lockes argument for the Social Contract and civil government
because it is the protection of their property, including their property in their own
bodies, that men seek when they decide to abandon the State of Nature.
Social Contract

It was for the purpose of protection of property that man entered into the Social
Contract. By property was meant life, liberty and estate. Locke says every man has a
property in his own person. Property was insecure because (i) there was no established
law, nor (ii) an impartial judge, and (iii) the natural power to execute natural law was
not always commensurate with the claim. To remedy this flaw man entered into the
Social Contract by which he yields to the sovereign, not all his rights, but only the power
to preserve order and enforce the law of nature. People made two contracts, namely
social and political contracts. The Social Contract was made between the people
themselves. They surrendered only some of their rights- the right of interpreting and
enforcing the law of nature. It was only a limited surrender and not a complete
surrender of their rights. Moreover, they surrendered their rights to the community as a
whole and not to any particular individual. Thus, they established a civil society. The
second contract, called the governmental contract was made between the people and
the rule. It was made to enforce the first contract. By this the government came into
existence. The state of nature was put to an end by means of these two contracts.
Government as a Trust

Thus, the individual retained the natural rights to life, liberty and estate, for they were
the natural and inalienable rights of man. The purpose of government and law is to
uphold and protect the natural rights. So long as the government fulfils their purpose,
the laws given by it are valid and binding but when it ceases to do that, its law have no
validity and the people have a right to revolt against the government and overthrow it.
The state of nature which precedes the Social Contract, was not one of anarchy, as
Hobbes had imagined, but was a state of liberty, not of license. Locke advocated a
state for the general good of the people; the subject conditionally surrenders his liberty
to
the
sovereign.

It may be stated that Lockes idea of Social Contract was founded on new secular
approach to natural law whereby the power of the government was conceded on trust
by the people to the rulers and any infringement of the conduct by the rulers was
treated as a breach of the peoples fundamental natural rights which justified revolt
against the government. Locke pleaded for a constitutionally limited government. The
nineteenth century doctrine of laissez faire was the result of individuals freedom in
matters relating to economic activities which found support in Lockes theory. Unlike
Hobbes who supported State authority, Locke pleaded for the individual liberty.
John Locke argued that sovereignty resided in the people for whom governments were
trustees and that such government could be legitimately overthrown if they failed to
discharge their functions to the people. He attempted to erect effective safeguards
against violations of natural law by the government. Locke said that the sovereign did
not take all rights; the principal rights remained with the people. Lockes Social Contract
was devoted to sovereignty and law. Sovereignty derived from the peoples will. This will
remained with the people. He argued that sovereignty did not reside in the state but
with the people, and that the state was supreme, but only if it was bound by civil and
natural
law.
Locke believed in the governed as the basis of sovereignty and the state as the
guarantor of individuals liberty. To Locke, under Social Contract power was surrendered
not to the sovereign but to the community. He said there and there only was a political
society where everyone in the society had quitted his natural power, resigned it up into
the hands of the community. John Locke used the phrase there and there only to
emphasize the importance of the WILL of the people in forming a political society. Thus,
every member of the community surrendered his natural power with free will explicitly
or implicitly and resigned it into the hands of the community in exchange for the
discharge of functions to the people, hence a political society becomes with power to
preserve property and punish offences. However, the power cannot be more than that
the people had in a state of nature before they entered into a society and gave it to the
community for nobody can give more than what he has. The term community as is used
by John Locke above signifies the government of the people by the people for the
people, thus community rights should prevail over individual rights and the rights are
surrendered into community because the sovereign is the people and only comes from
the people. Thus, hands of the community mean the governor who is governing by the
WILL of the people.
Separation of Powers

Locke, thus championed a constitutionally limited sovereign and framed the doctrine of
separation of powers. The legislative power creates the rules to give effect to and
protect the inalienable rights. There is the executive power by which the law is
enforced; and there is the federative power which concerns the making of war and
peace and controls the external relations of the state. Locke says that it is desirable to
confer legislative and executive powers in different organs because there is the danger
of entrusting the law makers with the power to carry out the laws which they

themselves make. He did not advocate separation between the executive and
federative
power,
since
both
are
dependent
on
force.
A Comparative Analysis of John Lockes Social Contract Theory and the Constitution of
India.
John Lockes Social Contract Theory is very much reflected in the Constitution of India.
According to Lockes theory, man in the State of Nature felt the need to protect their
property and for the purpose of protection of their property, men entered into the
Social Contract. Under the contract, people came together and made two
agreements, namely, Pactum Unionis and Pactum Subjectionis. Through the Pactum
Unionis, the people formed an association in order to move themselves from the state of
nature into civil society thereby making an attempt to sought protection of their lives
and property. As a result of it, a society was formed where people undertook to respect
each other and live in peace and harmony. The Pactum Unionis was made between the
people themselves wherein they surrendered their rights to the community as a whole
and not to any particular individual thereby creating a political society and government
through their consent. Through the Pactum Subjectionis the people united together and
pledged to obey an authority and surrendered part of their freedom and rights to the
authority. The authority, on the other hand guaranteed to everyone protection of life,
property and to a certain extent liberty. The Pactum Subjectionis was made between the
people and the rule. Thus, through the second agreement the people empowered the
authority
to
enforce
the
initial
agreement
i.e.,
the
Pactum
Unionis.
The Preamble to the Constitution of India begins with the phrase WE, THE PEOPLE OF
INDIA, having solemnly resolved to constitute India into a SOVEREIGN. This shows
the people of India coming together to form a sovereign authority i.e., the Sovereign of
India. This can aptly be related to the Pactum Unionis as described in Lockes theory.
The Preamble ends with DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION. This reflects the attempt made by the people of India to unite together
and pledge to obey an authority i.e., the Constitution of India thereby forming the
Government of India. Thus, the people of India enter into a contract to ensure the
certainty
and
security
to
their
lives,
liberties
and
properties.
According to Locke, under the Social Contract the people did not surrender all their
rights to the sovereign authority i.e., the Government, but they surrendered only the
right to preserve/maintain order and enforce the law of nature. The individual retained
with them the other rights i.e., right to life, liberty and estate because these rights were
considered natural and inalienable rights of men. Thus, we see that Locke advocates a
limited
surrendering
of
rights
by
the
people.
The Constitution of India contains a long list of Fundamental Rights (Articles 14 to 35) in
Part III. These rights are regarded as fundamental because they are most essential for
the attainment of full intellectual, moral and spiritual status of the individual.
Under Article 21 the Constitution of India ensures to every citizen the protection of life
and personal liberty. It is supplemented byArticles 20 and 22 which provides the

necessary safeguards to prevent against unjust and illegal conviction and detention of a
person. In the historical decision of Maneka Gandhi v. Union of India, Bhagwati J.,
observed, the Fundamental Rights represent the basic values cherished by the people
of the country (India) since the vedic times and they are calculated to protect the
dignity of the individual and create conditions in which every human being can develop
his personality to the fullest extent. They weave a pattern of guarantee on the basic
structure of human rights, and impose negative obligations on the state not to encroach
on individual liberty in its various dimensions. Thus, we see that the state is limited in
its power to encroach upon the Fundamental Rights and liberties as guaranteed under
the Constitution of India. This is reflected under Article 359 of the Constitution of India
which states that in case of National Emergency proclaimed by the President of India
under Article 352 and 358, the fundamental rights under Article 19 will automatically be
suspended. However, Articles 20 and 21 cannot be suspended even during emergencies
thereby restricting the sovereign authority to curtail the Right to Life which is a natural
right.
Prior to the 44th Amendment to the Constitution of India the Right to Property was a
fundamental right under Article 19 (1) (f). However, with the 44th Amendment, the
Right to Property was removed from Part III and inserted in Article 300A. This was done
in order to ensure an economic welfare pattern. However, in case the statutory
authority deprives an individual from his personal property for the sake of public
interest, there has to be a fair compensation made to that individual for his loss of
property
thereby
withholding
Lockes
view
of
fair
compensation.
However, if people are given complete and absolute liberty without any social control,
the result would be ruin. Liberty has to be limited. For liberty of one must not offend
liberty of others. In A.K. Gopalan v. State of Madras, Patanjali Shastri J., observed, man
as a rational being desires to do many things, but in a civil society his desires have to
be controlled, regulated and reconciled with the exercise of similar desire by other
individuals. Thus, the fundamental rights guaranteed under Article 19(1) (a), 19(1) (b),
19 (1) (c), 19 (1) (d), 19 (1) (e) are restricted by the Article 19 (2), 19 (3), 19 (4), 19 (5)
and 19 (6). Also Article 21, though cannot be suspended but nonetheless, it can be
limited according to the procedure established by law. However, such restrictions should
be just and reasonable. In Maneka Gandhi v. Union of India, it was held that the order
withholding the reasons for impounding the passport was not only in breach of statutory
provisions (Passport Act) but also in violation of the rule of natural justice. The principle
of reasonableness, which is an essential element of equality or non-arbitrariness,
pervades Article 14. This ensures that the procedure depriving a person of his life or
personal liberty must be just, fair and reasonable. It must satisfy the requirement of
natural justice which is an essential component of fair procedure under Article 21.
The phrase reasonable restrictions in Article 19(6) means that the restrictions imposed
on a person in the enjoyment of his rights should not be arbitrary or of an excessive
nature, beyond what is required in the interests of the public. The word reasonable
implies
intelligent
care
and
deliberation
which
reason
dictates.

In Locke's Letter Concerning Toleration, he develops several lines of arguments that are
intended to establish the proper spheres for religion and politics. His central claims are
that government should not use force to try to bring people to the true religion and that
religious societies are voluntary organizations that have no right to use coercive power
over their own members or those outside their group, thereby barring governments
from using force to encourage people to adopt religious beliefs. This, is also reflected in
the Constitution of India wherein under Articles 25 and 26 it guarantees religious
freedom to every citizen. However, such freedom is not absolute and can be obstructed
on the ground of public health and morality and to uphold the secular character of
the Constitution of
India.
Moreover, Locke claims that legitimate government is based on the idea of separation of
powers. First and foremost of these is the legislative power. Locke describes the
legislative power as supreme (Two Treatises) in having ultimate authority over how the
force for the commonwealth shall be employed. The legislature is still bound by the law
of nature and much of what it does is to set down laws that further the goals of natural
law and specify appropriate punishments for them. The executive power is then charged
with enforcing the law as it is applied in specific cases. Interestingly, Lockes third power
is called the federative power and it consists of the right to act internationally
according to the law of nature. Since countries are still in the state of nature with
respect to each other, they must follow the dictates of natural law and can punish one
another for violations of that law in order to protect the rights of their citizens. This,
therefore, contains the power of war and peace, leagues and alliances, and all the
transactions with all persons and communities without the commonwealth.
The Indian Constitution also embodies Lockes theory of separation of powers to some
extent, the only difference being that instead of the federative power as propounded
by Locke in his theory of separation of power, the Constitution of India has adopted the
judicial power as the third branch of the Government. Under Article 50 of
the Constitution of India the judicial power is separated from the executive power in
order to endure the independence of the judiciary. The legislative power is established
under the Articles 245, 246, 248, 249, 250, 252, 253 and 368 r/w the Seventh Schedule
of
the
Indian Constitution.
Conclusion
Parliamentary democracy existing in the modern day India today is mainly influenced by
John Lockes idealism. His ideas gave theoretical form to the reaction against absolutism
and
the
preparation
of
parliamentary
democracy.
Moreover, John Lockes doctrines of liberty and equality have exercised a strong
influence upon Fundamental Rights as guaranteed under the Constitution of India.
Liberty and equality of an individual are highly respected and thus protected by the
government and sovereignty resides in the people as per John Lockes ideas.
Political power derived from Social Contract entails such power coming from the people
and not from above, whether from divine law or the grace of God. Thus, Social Contract

Theory of John Locke is a forerunner of democratic theory i.e. the government of the
people, by the people and for the people. Thus, the modern democratic government as
we see in India, i.e., adhering to free and fair election principles have their basis in
social
contract
theory.
It can thus be said that Social Contract Theory is exercised in India through the elections
of some people to form the government. The major problem facing our country is non
adherence by the governments to the Social Contract principles as propounded by John
Locke. The said principles require the government and the people to exist under Pactum
Unionis and Pactum Subjectionis with due respect and adherence to the duties and
rights arising there from. In every political community of people there is
aConstitution and the Constitution is supposed to reflect the WILL of the people. And
since the Constitution of India reflects the WILL of the people, it then enjoins every
person to abide the provisions of this Constitution, that is, to live according to their
agreed procedures and respect the community. The jurisprudence behind Social
Contract Theory is to promote peace and harmony as that it is the bed rock of
democratic societies such as India.
Feasibility of GAAR for removing the practice of Tax Avoidance
Abstract
Internationally, tax avoidance has been recognized as an area of concern and several
countries have expressed concern over tax evasion and avoidance. This is also evident
from the fact that either nations are legislating the doctrine of General Anti-Avoidance
Regulations in their tax code or strengthening their existing code. General Antiavoidance Rule (herein referred as GAAR) is a concept which generally empowers the
Revenue Authorities in a country to deny the tax benefits of transactions or
arrangements which do not have any commercial substance or consideration other than
achieving the tax benefit. Denial of tax benefits by the Revenue Authorities in different
countries, often by disregarding the form of the transaction, has been a matter of
conflict between the Revenue Authorities and the taxpayers. Different countries have
taken different approaches in this regard. Australia was in the forefront of introducing a
GAAR
as
early
as
1981.
In India, the Government proposes to introduce GAAR provisions through the
DirectTaxes Code Bill, 2010 (herein referred as DTC) which is largely based on South
African GAAR. The DTC after its introduction in Parliament was referred to a Standing
Committee of Parliament. The Code, which was planned to be effective from 1 April,
2012 is expected to be delayed. The Finance Bill, 2012 introduced a far-reaching GAAR
in the Income-Tax Act, 1961. It is largely modelled on GAAR proposed in the DTC. GAAR
provisions in the Finance Act are in some ways wider in scope and application. The
provisions of GAAR of Finance Act, 2012 will apply to the income accruing or arising to
the
taxpayers
on
or
after
1
April
2013.
This paper will deal with the understanding the background due to which need was felt
for an effective GAAR provisions. It will further analyse the basic scheme of GAAR with

its

critical

examination.

Background
Tax avoidance is used to describe every attempt by legal means to prevent or reduce
tax liability, which would be otherwise incurred, by taking advantage of some provision
or lack of provision in the law. It pre supposes the existence of alternatives, one of which
would result in less tax than the other. Moreover, motive would be an essential element
of tax avoidance. A person who adopts one of the several possible courses to save tax
must be distinguished from a taxpayer who adopts the same course for business or
personal reasons. A course of action is designed to conflict with or defeat the evident
intention
of
Parliament.
Tax planning may be legitimate, provided it is within the framework of law. Colourable
devices cannot be part of tax planning and it is wrong to encourage or entertain the
belief that it is honourable to avoid the payment of tax by resorting to dubious methods.
It is the obligation of every citizen to pay their taxes honestly without resorting to
subterfuges.
Tax Avoidance is different from Tax evasion which is generally the result of illegality,
suppression, misrepresentation and fraud whereas Tax avoidance is the result of actions
taken by the assessee, none of which or no combination of which is illegal or forbidden
by the law itself. The GAAR provisions do not deal with cases of tax evasion. Tax evasion
is clearly distinct from tax avoidance and is already prohibited under the current
provisions
of
the
Income-tax
Act.
Tax avoidance is also different from Tax mitigation which is a situation where the
taxpayer takes advantage of a fiscal incentive afforded to him by the tax legislation by
actually submitting to the conditions and economic consequences that the particular tax
legislation
entails.
It is this Tax Avoidance which like tax evasion, seriously undermines the achievements
of the public finance objective of collecting revenues in an efficient, equitable and
effective manner. There is a strong general presumption in the literature on tax policy
that all tax avoidance, like tax evasion, is economically undesirable and inequitable.
Moreover after the liberalization of the Indian economy, increasingly sophisticated forms
of tax avoidance are being adopted by the taxpayers and their advisers.
Further, appellate authorities and courts have been placing a heavy onus on the
Revenue when dealing with matters of tax avoidance. In view of the above, it is
necessary and desirable to introduce a general anti-avoidance rule which will serve as a
deterrent against such practices. This is also consistent with the international trend.
Further few arrangements have been used by various companies for tax avoidance
which has created huge revenue loss for the government. For example after the
liberalization of the Indian economy, the Indo-Mauritius Double Tax Avoidance
Agreement (DTAA), was "discovered" as an effective mechanism to avoid capital gains

tax on sale of shares in Indian companies. Article 13 provides for attribution of taxation
rights among the two countries for capital gains. Article 13 (4) provides that gains
derived by a resident of a contracting State shall be taxable only in that State. And
Mauritius has no domestic level tax on capital gains, thus making it exempt. Therefore
gains derived by a resident of Mauritius from the sale of shares in an Indian company
are taxable only in Mauritius and as it does not tax capital gains, the transaction
escapes
tax
in
both
countries.
This
results
in
double
non-taxation.
This channel promoted foreign investment as more investors came in. Most other
countries have been plugging these loop holes through their tax codes with antiavoidance provisions. The GAAR is to activate a set of rules which are very broad in
their construction and can effectively strike down most of these types of arrangements,
as
it
(in
DTC)
overrides
the
treaties.
Indian tax laws, though providing for specific anti avoidance measures, do not have any
general anti avoidance rules or regulations. The Courts have over the years drawn out
the general parameters and principles in outlining whether a transaction or scheme
would be considered as tax avoidance/tax evasion or tax planning under the tax laws,
though
the
uncertainty
continues.
In the Duke of Westminster v. IRC, and in several subsequent tax cases including W.T.
Ramsay Ltd. v. IRC, Furniss v. Dawson, Craven v. White, English Courts have consistently
affirmed the cardinal principle that if a document or a transaction is genuine, Courts
cannot
go
behind
it
to
some
supposed
underlying
substance.
This principle has been applied in India too in several cases, the more recent among
them being the Azadi Bachao Andolan case, Mathuram Agrawal case and the Vodafone
case. The Supreme Court in the McDowell case frowned only upon the use of colourable
devices and resort to dubious methods and subterfuges, and, as clarified by the
Supreme Court in the Vodafone case, not on all tax planning in general. Courts have
evolved doctrines such as piercing the corporate veil, substance over form, etc.
enabling taxation of underlying assets in cases of fraud, sham, tax avoidant etc.
However
genuine
tax
planning
is
not
ruled
out.
In the application of a judicial anti-avoidance rule, the Revenue may invoke the
substance over form principle or the piercing the corporate veil test only after it is
able to establish, on the basis of the facts and circumstances surrounding the
transaction, that the impugned transaction is a sham or tax avoidant.
Therefore the revenue authorities are not permitted to go into the substance of an
otherwise legal tax planning, they are not allowed to conduct an enquiry into the
underlying economic interest. Thus the government of India loses a great amount of tax
due to the application of form over substance rule. A recent example is the Vodafone
case
where
government
lost
revenue
of
around
Rs
11,000
crores.
However, this long standing principle is set to face legislative reversal with the

introduction of GAAR in the Finance Bill largely which seeks to incorporate the
substance over form doctrine in Indian tax law. Broadly speaking, GAAR will be
applicable to arrangements/transactions which are regarded as impermissible
avoidance arrangements and will enable tax authorities, among other things, to recharacterise such arrangements/transactions so as to deny tax benefits.
The substantive provisions of GAAR are enumerated under Sections 123-125 of DTC Bill,
2010. Also the provisions relating to GAAR appear in Chapter X-A (sections 95 to 102) of
the
Finance
Act,
2012.
In a nutshell, the whole scheme of GAAR revolves around the question of whether an
arrangement qualifies as what is termed an impermissible avoidance arrangement. An
arrangement means any step in or a part or whole of any transaction, operation,
scheme, agreement or understanding, whether enforceable or not. It also includes the
alienation of any property in such a transaction etc. The onus of proving that there is an
impermissible
avoidance
arrangement
is
on
the
Revenue.
It non-obstante clause which means, if there is a conflict with provisions, in other
sections, then those of this section shall prevail over other conflicting provisions. The
provisions allow the tax authority to, notwithstanding anything contained in the Act,
declare an arrangement which an assessee has entered into, as an impermissible
avoidance arrangement. Once an arrangement has been declared as an impermissible
avoidance arrangement, the consequence as regards tax liability would also be
determined.
This term in turn comprises of two distinct components - the main purpose test and the
specified conditions test. If upon application of the above tests, an arrangement
qualifies as an impermissible avoidance arrangement, the GAAR proposes to empower
the tax authorities with wide ranging powers to determine its consequences.
First
condition:
For the application of GAAR is that the main purpose or one of the main purposes of the
arrangement
is
to
obtain
a
tax
benefit.
The
term
tax
benefit
is
defined
as:
a) a reduction or avoidance or deferral of tax or other amount payable under this Act; or
b)

an

increase

in

refund

of

tax

or

other

amount

under

this

Act;

or

c) a reduction or avoidance or deferral of tax or other amount that would be payable


under
this
Act,
as
a
result
of
a
tax
treaty;
or
d) an increase in a refund of tax or other amount under this Act as a result of a tax
treaty;
or
e) a reduction in total income including increase in loss, in the relevant previous year or

any

other

previous

year.

The main purpose test depends not on the actual accrual of a tax benefit, but only on
the purpose behind entering into an arrangement. Hence, a transaction may be caught
within GAAR even if it has not yet resulted in a tax benefit so long as it has been
entered into for the main purpose (or one of the main purposes) of obtaining a tax
benefit,
at
any
time.
Thus, the Finance Bill has widened the scope of GAAR as compared to that under the
DTC wherein the criterion was main purpose is to obtain tax benefit. Even the South
African GAAR applies the sole or main purpose test and not one of the main purpose
as
the
key
test.
In any arrangement if the main purpose of a step in or a part of, the arrangement is to
obtain a tax benefit, the arrangement will be presumed to have been entered into to
obtain tax benefit, in spite of the fact that the main purpose of the whole arrangement
is
not
to
obtain
a
tax
benefit.
Where any arrangement results in any tax benefit, it shall be presumed to have been
entered into for the main purpose of obtaining a tax benefit, unless it is proved that
obtaining the tax benefit was not the main purpose of the arrangement. Therefore, the
burden
of
proof
would
lie
on
the
tax
payer.
For
i. the

determining
connected parties may

ii.

any

accommodating

be

the
treated
party

as

one
may

tax
and the
be

same

benefit:
person;

disregarded;

iii. such accommodating party and any other party may be treated as one and the same
person;
iv. the arrangement may be considered or looked through by disregarding any corporate
structure.
Second
Condition:
In order for an arrangement to be classified as an impermissible avoidance
arrangement, in addition to meeting with tax benefit test, it must satisfy any one or
more
of
the
following
four
conditions:
a) It creates rights, or obligations, which are not ordinarily created between persons
dealing
at
arms
length;
b) It results, directly or indirectly, in the misuse, or abuse, of the provisions of this Act;
c) It lacks commercial substance or is deemed to lack commercial substance in whole or
in
part;
or

d) It is entered into, or carried out, by means, or in a manner, which are not ordinarily
employed
for
bona
fide
purposes.
Unlike in the case of the tax benefit, there is no presumption in connection with the
above conditions. Hence, the burden of proving the existence of one or more of the
above
conditions
should
lie
with
the
Revenue.
The phrase arrangement to lack commercial substance has not been defined. It is
noted that earlier version of GAAR in the DTC Bill defined the commercial substance as
an arrangement shall be deemed to be lacking commercial substance if it does not
have a significant effect upon the business risks, or net cash flows, of any party to the
arrangement apart from any effect attributable to the tax benefit that would be
obtained
but
for
the
provisions
of
section
It implies that besides having a commercial purpose, the taxpayer should also have
commercial substance in the arrangement, which mean change in economic position of
the taxpayer by altering the business risks or net cash flow to him.
Also certain arrangements have been deemed to lack commercial substance as under:
a) the substance or effect of the arrangement as a whole, is inconsistent with, or differs
significantly
from,
the
form
of
its
individual
steps
or
a
part;
or
b)

it

involves
round
an

elements

that

have

or
trip

includes:
financing;

accommodating
effect

of

offsetting

or

party;
cancelling

each

other;

transaction which is conducted through one or more persons and disguises the value,
location, source, ownership or control of funds which is the subject matter of such
transaction;
or
c) it involves the location of an asset or of a transaction or of the place of residence of
any party which is without any substantial commercial purpose other than obtaining a
tax
benefit
(but
for
GAAR
provisions)
for
a
party.
Clause (a) is the codification of substance over form doctrine. It implies that where
substance of an arrangement is different from what is intended to be shown by the form
of the arrangement then tax consequence of a particular arrangement should be
assessed based on the substance of what took place. In other words, it reflects the
inherent ability of the law to remove the corporate veil and look beyond form.
Round trip financing would include financing in which funds are transferred among

parties resulting in tax benefit but for the provisions of GAAR or significantly reduce,
offset or eliminate any business risk incurred by any party.
Social Media Governance In India
Social media can well be termed as a tool of divulgence and convergence of
information. But such tool is more or less used by individuals and few organizations. The
uses of such platform by the governmental agency to connect to the masses and create
synergies between them have been minimal. However, agencies have started opting for
policies to effectively use these platforms to create scope of engagement with public
and to engage all the stakeholders to make policies citizen centric. In India, practice of
using social media platforms by the governmental agencies have gained pace. In Indian
context, Ministry of External Affairs excelled in using these platforms when its Public
Diplomacy (PD) division launched its Twitter account on July 10, 2010. The launch of
such account heralded a new history of government-stakeholder communications in
India. At present, social media sites have accounts of traffic controls, police
departments, municipal corporations and health institutions etc. Keeping in view the
need of a guideline to encourage government institutions to use these platforms as a
channel of communication, Department of Information Technology, Ministry of
Communications and Information Technology, Government of India came up with a
Framework and Guidelines for Use of Social Media for Governmental Organisations in
September, 2011. The question which becomes imperative to address in regard to such
guideline is whether creation of a guideline by itself is sufficient enough to celebrate or
there
exists
some
concerns
to
be
noted
in
this
regard.
I.
Social
Media
Governance:
Meaning,
Need
and
Core
Values
Governance can be termed to be the process whereby societies and institutions make
their important decisions, determine who they will involve in making those decisions
and how they render account. Typically, a governance process will rest on a governance
system or frameworkthat is, the agreements, procedures, conventions and policies
that establish who has power, how decisions are taken and communicated, and how
accountability is rendered. Social media governance can be termed to be a procedure
wherein to ensure good governance social media is used by the governmental agencies.
The draft Indian framework points out that though at personal level, the uptake and
usage of social media is gaining rapid popularity, use and utility of such media for
official purpose remains ambiguous. Many apprehensions remain including, but not
limited to issues related to authorisation to speak on behalf of department/agency,
technologies and platform to use to communicate, scope of engagement, creating
synergies between different channels of communication, compliance with existing
legislations etc. Therefore, In order to encourage and enable government agencies to
make use of this dynamic medium of interaction, a basic framework and guidelines for
use of Social Media by government agencies in India has been formulated. These
guidelines will enable the various agencies to create and implement their own strategy
for the use of social media. The document will help them to make an informed choice
about the objective, platforms, resources, etc. to meet the requirement of interaction
with
their
varied
stakeholders.

The Guidelines have been developed for all eGovernance projects currently under National e
Governance Plan, whether being implemented at Central or State level. In addition, it will be applicable
to all new eGovernance Projects being developed by any Department or Line Ministry of Central
Government. All other government agencies including Public Sector Undertakings may also find it useful
while conceptualising their own projects. It is expected that the utility of these guidelines will
transcend
NeGP
and
will
be
used
by
all
departments
It further observes that given its (social medias) characteristics to potentially give
voice to all, immediate outreach and literally 24X7 engagement, social media offers a
unique opportunity to governments to engage with all their stakeholders especially
citizens in real time to make policy making citizen centric. Many governments across
the world as well many government agencies in India are using various social media
platforms to reach out to their citizens, businesses and experts to seek inputs into policy
making, get feedback on service delivery, creating community based programmes etc.
The framework lays down that social media is more interactive, enables onetoone
conversation and demands immediacy in responses than the traditional media. Also, on such platforms the
perception of official and personal roles and boundaries is often blurred. Therefore, while using social media
especially for official purposes, the following values may be kept in mind to smoothen the
interaction:
1. Identity: It requires that one should always identify clearly who he is, what is his role
in the department and publish in the first person. Disclaimer may be used when
appropriate.
2. Authority: It suggests not commenting and responding unless authorized to do so
especially in the matters that are subjudice, draft legislations or relating to other individuals.
3. Relevance: It advices to comment on issues relevant to ones area and make relevant and
pertinent comments. This will make conversation productive and help take it to its
logical
conclusion.
4. Professionalism: It asks to be polite, be discrete and be respectful to all and do not
make personal comments for or against any individuals or agencies. Also, professional
discussions
should
not
be
politicized.
5. Openness: It suggests being open to comments whether positive or negative. It is
not
necessary
to
respond
to
each
and
every
comment
6. Compliance: It requires complying with relevant rules and regulations and suggests
not
infringing
upon
IPR,
copyright
of
others.
7. Privacy: It advices not to reveal personal information about other individuals as well
as not to publish ones own private and personal details unless the person wishes for
them
to
be
made
public
to
be
used
by
others.
It has been noted that as the influence of traditional media sources like television
networks and newspapers will decline, social media will become a critical part of
government public relations and outreach. In an environment of rapidly changing global
issues, an increasingly fractionated media sector, and people more and more defined by
unique combinations of niche interests, the government sorely will need enhanced
public relations that will involve bi-directional multimedia engagement with specific

niches of public interest. Since every citizen has the potential to be a collector, an
analyst, a reporter, and a publisher and so does every government employee, therefore
engaging, trusted personalities employed as brand ambassadors over social media will
complement -- not replace -- traditional public affairs and government outreach.
II.
Social
Media
Practices
In USA, several government agencies are taking advantage of social media tools for
recruiting and talent management, as well as improving job performance. For example,
the CIA leverages Facebook as a method of attracting college students to apply for
internships or jobs. The Environmental Protection Agency created a Facebook network
for employees to achieve better talent management as a way to share knowledge, build
collaboration and improve employee engagement. Other agencies are using public
social networking Web sites as models for their own sites. NASAs CoLab program
involved building its own collaborative workspace site to develop and support both
online and offline groups and communities of practice. This allows its own internal
groups to form a collaboration network and link to non-NASA groups of like-minded,
technologically knowledgeable people and tap into the expertise of non-NASA scientists
and engineers. Using social networking tools is not limited to U.S. federal agencies.
State, county and municipal governments are also getting into the act of leveraging
these tools to carry out important functions. During summer 2009, adjoining counties in
Texas have started their own Facebook and Twitter sites to make it easier for the public
to access important information such as that provided by the counties emergency
management offices. While many local government agencies including Mayors offices
of many cities in United States use social media for community building and even
recruitment, most state and federal agencies use social media for either seeking expert
opinion or creating/influencing public opinion. Many agencies at federal level are also
using this platform to gauge public reactions on upcoming/proposed policy measures.
Given below are a few examples from across the world. In addition to established
platforms created by private organisations, US government has also created its own
platforms. A new social network Web site called GovLoop.com was created a year ago
within the US Department of Homeland Security to share experiences and best
practices. More than 14,000 people have joined, creating nearly 500 subcommunities and
over
1,000
discussion
forums.
The
Human
Capital
Institutes
report
point
out
that:
1. Sixty-six (66) percent of government workplaces use some type of SN tool and sixtyfive
(65)
percent
of
those
are
using
more
than
one
tool.
2. These tools are used for a variety of internal and external-facing goals with employee
training and public relations the work functions SN tools are most frequently used for.
3. Communities of practice and blogs are the most frequently used SN functions.
4. LinkedIn, Facebook and Twitter are the most frequently used SN Web sites
highlighting the value that many organizations find in leveraging already existing tools
for
their
own
purposes.
5. The most used SN functions build capabilities in collaboration and knowledge sharing.
6. The most used SN Web sites also aid collaboration and the building of professional
networks.

7. Overall, SN tools are perceived as most effective at handling information and


communication in internal processes and goals such as management functions. Public
communications and recruiting functions are in the mid-range of effectiveness, while the
use
of
SN
tools
for
managing
work
trails
behind.
8. Federal agencies (defense and non-defense) lead the way in using SN tools for project
planning
(an
internal
process)
while
state
government
agencies
lag.
9. State government agencies are significantly less likely to use SN tools than either
county/municipal or federal agencies possibly a result variation among states in having
the
budget
and
expertise
to
implement
social
networking.
It is because of these characteristics of social media that it has been predicted that less
than 30 per cent of large organisations will block employee access to social media sites
by 2014, compared with 50 per cent in 2010. As per a report, the number of
organisations blocking access to all social media is dropping by around 10 per cent a
year
With a mandate to include production of print and audio-visual materials to help Indian
embassies in projecting the countrys diverse facets more effectively, the Public
Diplomacy (PD) division of the Ministry of External Affairs (MEA) launched its Twitter
account with the user ID Indian diplomacy http://twitter.com/Indiandiplomacy on
July 10, 2010. The account was a big hit with its launch and as of now have 1,955
tweets and 27,814 followers. The platform is regularly used by Indian diplomats and the
Prime Minister's Office (PMO) for routinely tweeting on foreign policy matters. On
account of such success, the division started using other platforms like Facebook,
Youtube, Flickr and Issuu. The Facebook page had been a bit slow to pick up in the first
few months, but has now over 50,567 likes. More importantly, over 50 Indian high
commissions, embassies and consulates have now opened their own pages on Facebook
and others are waiting in the wings. Recently, the tweets of the division were
appreciated for the evacuation of Indian nationals from Libya during the NATO led war.
At present there are several agencies which have actively marked their presence on
social media websites, including, Delhi Traffic Police, National Institutes of Health and
Special Police Unit for Women & Children, Delhi Police etc. However it has to be noted
that we are two steps behind the western world as they are not actively using these
social media websites but are also using other web 2.0 applications for better
governance. In west individuals and governmental agencies have collaborated to create
web
2.0
applications
for
better
governance
purposes.
III. Social Media Framework and Guidelines for Government Organisations in
India
In September, 2011 the draft framework and guidelines for use of social media for
government organizations released. More recently, J. Satyanarayana, Secretary,
Department of Electronics and IT recently observed that keeping in mind the growing
demand, the department will soon finalise the guidelines for all State and Central
government departments wanting to use social medium to reach and get feedback from
public. He further observed that social media is supposed to have a good reach and

people are used to it. So the government created draft frame work for using the social
media
by
various
departments
will
be
published
soon.
The released draft framework comprises of the following 6 elements:
i.
Objective:
Why
an
agency
needs
to
use
social
media
ii.
Platform:
Which
platforms
to
use
for
interaction
iii.
Governance:
What
are
rules
of
engagement
iv.
Communication
Strategy:
How
to
interact
v.
Pilot:
How
to
create
and
sustain
a
community
vi. Engagement Analysis: Who is talking about what, where and what are the main
points
of
conversations
vii. Institutionalisation: How to embed social media in organisation structure
(i)
Objective:
The draft framework mentions that the purpose behind use of social media is not only to
disseminate information but also to undertake public engagement for a meaningful
public participation for formulation of public policy. It lays down that social media can be
used
for
:
a.
Seeking
feedback
from
citizens
b.
Repronouncement
of
Public
Policy
c.
Issue
based
as
well
as
Generic
interaction
d.
Brand
Building
or
Public
Relations
e. Generating Awareness and education on National Action Plans and implementation
Strategies
(ii)
Choosing
Platform
The guideline directs that once the objectives have been defined the next step of
identifying platforms in which engagement shall be undertaken should be done. It
mentions that the government departments and agencies can engage social media in
any
of
the
following
manner:
a.
By
making
use
of
any
of
the
existing
external
platforms,
or
b.
By
creating
their
own
communication
platforms
c. The choice of the platform whether owned or externally leveraged should be made
based
on
the
following
factors:
d. Duration of engagement whether the engagement sought is to be an ongoing activity or created for
a
specific
timebound
purpose
e. Type of Consultation whether the consultation is open to public or confined to a particular
group
of
stakeholders
e.g.
experts
f. Scope of Engagement whether the consultation requires daily, weekly, biweekly or
even
hourly
interaction
g. Existing Laws whether existing laws permit use of such platforms and the requirement under
such
laws
regarding
data
protection,
security,
privacy,
archiving
etc.
(iii)
Governance
Structure
Owing to the viral characteristic and demand for gratification over social media the
official page of departments must reflect the official position and shall also incorporate

some measures of control. The guideline suggest for a governance structure comprising
of account governance, response and responsiveness, resource governance, content
governance
and
data
and
security
information
governance.
(iv)
Communication
Strategies
Following communication strategies have been mentioned in the draft:
1. Social media can only be used by the Government to communicate existing
Government
information
and
propagate
official
policy
to
the
public.
2. While the social media tools allow everyone to become a creator, for the official
account, content will have to be specified and tailored to the site on which it is being
published.
3. Great care must be taken to avoid propagation of unverified facts and frivolous
misleading rumours which tend to circulate often through miscreants on social media
platforms.
4. It must be reiterated here that social media should only be one of the components of
the overall citizen engagement strategy and government departments must desist from
using
only
social
media
to
communicate
with
their
stakeholders.
5. Initially, the departments may just aim to post information regularly. For example, if it
is a Face Book Page, postings may be done at least a couple of times a week and on
Twitter
slightly
more
frequently.
6. Ideally, none of the sites should be left more than a week or two without new
content.
(v)
Creating
Pilot
The draft framework lays down that since social media are relatively new forms of
communication, it is always better to test efficiency and efficacy of such an initiative
with a pilot project. Some of principles of creating such a pilot are mentioned as below:
1. Focused Objective setting: Initiate interaction for a limited objective or limited to one
topic
2. Begin Small: It is always better to start small and it is advisable to begin with one or
two
platforms.
3. Multiplicity of access: The chosen platform should typically permit inputs from or
linkages through multiple access devices. This will ensure wider participation.
4. Content Management: It is not enough just register presence on a variety of
platforms. As we are all aware, government websites are perhaps the least visited
websites. The reasons for this are manifold including but not limited to the relevance,
updation
and
presentation
of
content.
5. Community Creation: On any social media platform, creation of a community is
essential
to
generate
buzz
and
sustain
interaction.
(vi)
Engagement
Analysis
The framework emphasizes that social media monitoring must be an integral part of any
social media strategy. Social media data is different from other data or information
because organisations have no control over its creation or dissemination on the Web
and in order to understand and analyse the data a structure has to be imposed
externally on it. It suggest to use Social Network Analysis software to be used in

discovering conversations about project and organisations which can be used to


proactively
engage
with
stakeholders.
(vii)
Institutionalise
Social
Media
The framework observes that the final step in ensuring that the pilot is scaled and
integrated is to link to existing administrative and communication structure. It provides
for
an
indicative
list
as
follows:
1. Rules may be established that all policy announcements will be undertaken
simultaneously
on
traditional
as
well
as
social
media;
2. All important occasions as far as possible may be broadcasted using social media;
3. All documents seeking public opinion must be posted on social media sites;
4. All updates from the website would automatically be updated on social media sites
and;
5. All traditional communications will publicise the social media presence.
IV.
Conclusion
It is a well known fact that the social media is evolving at mouse click speed. The
dynamism of the social media calls for all the governance guidelines to be regularly
reviewed and updated. It is required that the agencies make sure that they define the
frequency of updates and the process for those updates. Such updating will certainly
ensure that the governance model does not become outdated. It is also required that
the employees be given training and education on responding to queries.
It has been a general observance that once an agency marks its presence on social
media, they are enthusiastic in exchanging tweets and comments. However over a
period of time these pages on social media transform into a static page. So, it is
required that not only accounts are set up but also they are actively managed and
administered. Another problem with such account relates to transitioning of such
accounts to a new person where the old employee leaves the agency.
No doubt, it is good to receive traffic updates, crime alerts and policy information but
governmental agencies should not forget that the purpose of being available on social
media is not merely information dissemination. The purpose to be on social media is to
interact and to implement those suggestions which come out of community interaction.
Such interaction will certainly ensure transparency among government institutions and
will sub serve the masses. In the near future social media has much to contribute to the
key goals of better, simpler, joined-up and networked government.
Judicial Review in India

The system of judicial review is also applicable in India. Although the term Judicial
Review has not been mentioned in theConstitution, the provisions of various Articles of
the Constitution of India have conferred the power of judicial review on the Supreme
Court. Accordingly the constitutional validity of a legislative enactment or an executive
order may be challenged in the Supreme Court on the following grounds

1.
2.
3.

Outside
It

Violation
of
the
competence
of
the
is
repugnant
to

fundamental
authority
which
has
the Constitutional

rights.
framed
it.
provisions.

The Supreme Court considerably widened the scope of judicial review in India through
its judgement in Maneka Gandhis case. In this case, the Supreme Court accepted the
concept of natural justice as one essential component of law thereby importing the
American
concept
of
due
process
of
law
into
our Constitution.
In the case of Charanjit Lal v. The Union of India, Justice Mukherjee observed: The court
should prima facie lean in favour of constitutionality and should support the legislation if
it is possible to do so on any reasonable ground. In pursuance of this attitude the
Supreme Court of India has enunciated the doctrine of severability, which implies that
only those portions of the law are declared as void which are inconsistent with the
provisions of the Constitution and the rest of the law is permitted to operate. The Courts
in India have exercised power of judicial review with great restraint and attached more
importance to the express words of the Constitution rather than the spirit of
the Constitution.
Judicial Review under the Constitution of India stands in a class by itself. Under the
Government of India Act of 1935, the absence of a formal Bill of Rights in the
constitutional document very effectively limited the scope of Judicial Review power to an
interpretation of the Act in the light of the division of power between the centre and the
units. Under the present Constitution of India the horizon of judicial review was in the
logic of events and things, extended appreciably beyond a formal interpretation of
federal
provisions.
The debates of Constituent Assembly reveal, beyond any dispute, that the judiciary was
contemplated as an extension of the Rights and an arm of the social revolution. Judicial
Review was accordingly, desired to be an essential condition for the successful
implementation and enforcement of the Fundamental Rights. Members of Constituent
Assembly were agreed upon one fundamental point that Judicial Review under the
new Constitution of the U.S.A., where the doctrine was more an inferred than a
conferred power and more implicit than expressed through constitutional provisions.
In the Report of the abhor Committee of Supreme Court, it was recommended that a
Supreme Court with jurisdiction to decide upon the constitutional validity of acts and
laws can e regarded as a necessary implication of any federal scheme. This was
eventually extended to an interpretation of the laws and executive orders on the
touchstone of the Fundamental Rights. In the Draft Constitution of India, this power of
Judicial Review in relation to fundamental rights found formal expression in Art. 8 (2)
and Art. 25 (1) & (2) which, when adopted by the nations representatives in the
Constituent Assembly on November 26, 1949, became the new Arts. 13 (2) and 32 (1) &
(2),
respectively,
under
the Constitution of
India.
However there was a sharp controversy among the members of the Constituent

Assembly over the perpetually veered question of reconciling the conflicting concepts of
the individuals fundamental and basic rights and the socio-economic needs of the
nation.
As a result Judicial Review, which was recognized as the basic and indispensable
precondition for safeguarding the rights and liberties of the individuals, was sought to
be tempered by the urge for building up a new society based on the concept of welfare
and social righteousness. The consequence was a drastic curtailment of the power of
judicial Review of the Supreme Court of India. The overriding need for security of the
State consequent on the partition of India and its after-math, and growing fissiparous
and subversive tendencies, merely provided further impetus to the process and made it
a fait accompli. What happened as a result was that the much debated Due Process
Clause, which was previously inserted in the original DraftConstitution, became the
first casualty, and was eliminated from the purview of the Rights to Personal Liberty.
Under Art. 21 of the new Constitution of India, it was replaced by except according to
procedure established by law, and in Art. 31 (1) it was substituted by save by authority
of
law.
Simultaneously with this new awakening, a cluster of provisions was incorporated into
the constitutional document so as to restrict the rights envisaged in Arts. 19, 21, and
31, and reduce the Supreme Courts power of Judicial Review to one of formal review.
Lest Judicial Review stood in the way of social and economic progress, the door was kept
wide open, through a comparatively flexible amending procedure, to impose the
ultimate will of the popular representatives in the matter of removing constitutional
limitations.
Constitution has been working for about 60 years since it is adopted, but it is indeed
very difficult to make a correct appraisal of the course and development of Judicial
Review,
and
its
specific
directions
and
tendencies.
The foundation of the Indian Supreme Courts Review-power was laid firmly and well in
the case of A.K. Gopalan v. State of Madras. This case not only elucidated the principle
of Judicial Review and the basis on which it would rest in future, but at the same time
evolved a set off guidelines which would eventually set the pattern for the fundamentals
of judicial approach to the Indian Constitution. Form Gopalan to Golaknath is, indeed,
a long march, not only in respect of the nature and scope of Judicial Review itself, but in
regard to the impact and consequences of such Review on the attainment of social
objectives,
too.
These two cases represent two distinct lines of judicial thinking, two distinct tendencies,
and, also two separate sets of social philosophy. One represents a halting, over-cautious
and tradition-bound attitude of the judiciary in restricting its own freedom of action by
sticking to the express phraseology of the Constitution, scrupulously avoiding the
nations of Natural Justice and Due Process, and construing the law in favour of the
legislature; the other represents a big, bold, and almost revolutionary effort to resurrect
Judicial Review by expanding its horizon beyond a literal interpretation of

the Constitution, introducing novel concepts like prospective overruling and convening
a Constituent assembly to amend the Fundamental Rights, and by prohibiting any
legislative amendment of Fundamental Rights in future. The Gopalan decision, while
restricting the ambit of the individuals rights to freedom and personal liberty, paved
the way to the realization of the social objectives by its clear enunciation of the principle
of judicial subordination to legislative wisdom and discretion, and by its emphasis on
social control of individual liberties. The Golaknath case, while trumpeting the
individuals basic liberties as sacrosanct and transcendental, has indeed, made it almost
impossible
to
enact
social
welfare
legislation.
The Supreme Court of India has used the power of judicial review in various cases. We
may refer to the Golaknath case (1967), the Bank Nationalisation case (1970), the Privy
Purses Abolition case (1971), the Keshwananda Bharti case (1973), the Minerva Mills
case (1980) and so on. However while exercising the power of judicial review, the
Supreme
Court
has
never
adopted
the
American
practise
as
it
is.
One of the most significant cases decided by the Supreme Court was Golakhnath case
of 1967in which the Supreme Court held that the Parliament has no right to abridge or
abrogate the Fundamental Rights granted by the Constitution through an amendment of
the Constitution. Thus it made the Fundamental Rights transcendental and superior to
the constituent power of the Parliament through its power of judicial review. The
Supreme Court continued this attitude in the Bank Nationalisation and Privy Purses
cases and challenged the right of the Parliament to curtail the fundamental rights by the
Parliament. This attitude of the Supreme Court obliged the Congress Government to
effect 24th, 25th and 26th amendments in the Constitution. It also made a bid to curtail
the right of the Supreme Court to declare a law affecting Fundamental Rights under
article 14, 19 and 31 as void of the law was passed to give effect to the Directive
Principles under Article 39 (b) or (c). These amendments were challenged in the
Keshwanand
Bharati
case.
During the emergency a bid was made to restrict the scope of judicial review through
the Forty-Second Amendment. The power to determine the constitutional validity of the
central laws was exclusively vested in the Supreme Court and the High Courts were
deprived
of
their
right
in
this
regard.
The Janata Government on assumption of power made a bid to restore the powers which
were taken away from the judiciary during the emergency.by the Forty-Third
Amendment passed in December 1977 it restored to the Supreme Court pre-emergency
position with regard to power of judicial review over the laws passed by the Parliament
as
well
as
the
State
Legislatures.
As a result of the Supreme Court judgement of March 1994 in the case of S.R.Bommai
and others v. The Union of India, also known as Assembly dissolution case, the scope of
judicial review was further widened. In recent years the judiciary has further widened
his field of operation by declaring judicial review as a basic feature of the Constitution.

Thus the Supreme Court in India has not merely interpreted the language of
the Constitution but also pronounced on issues which involve matters of policy.
Judicial Review in India and USA : Comparison

The scope of judicial review in India is narrower than that of what exists in USA, though
the American Constitution does not explicitly mention the concept of judicial review in
any
of
its
provisions.
In USA the judges exercise judicial review in a very aggressive manner. If the judges
think that a particular law and the philosophy of it is not liked by the judges then, also
the judiciary may reject the law. But such a thing never happens in India. The Indian
judges
reject
a
law
only
on
the
basis
of
unconstitutionality.
Moreover, it has also been seen that in USA, if a law is rejected by the Supreme Court
then the court will make a new law in its place. Although law making is not the
responsibility of the judiciary, the judiciary makes laws. Such judge-made laws are very
common in USA. But in India if a law is rejected by the Supreme Court, the Court leaves
the matter of making new laws to the legislative. This has also been described as
Judicial
Activism
by
some
of
the
constitutional
experts.
The American Constitution provides for due process of law against that of procedure
established by law which is contained in the Indian Constitution. The difference
between the two is: the due process of law gives wide scope to the Supreme Court to
grant protection to the rights of its citizens. It can declare laws violative of these rights
void not only on substantive grounds of being unlawful, but also on procedural grounds
of being unreasonable. Our Supreme Court, while determining the constitutionality of a
law, however examines only the substantive question i.e., whether the law is within the
powers of the authority concerned or not. It is not expected to go into the question of its
reasonableness,
suitability
or
policy
implications.
The American principle of judicial supremacy is also recognised in our constitutional
system, but to a limited extent. Nor do we fully follow the British Principle of
parliamentary supremacy. There are many limitations on the sovereignty of the
Parliament in our country, like the written character of the Constitution, the federalism
with division of powers, the Fundamental Rights and the Judicial Review. In effect, what
exists in India is a synthesis both, that is, the American principle of judicial supremacy
and
the
British
principle
of
parliamentary
supremacy.
The scope of judicial review in India is somewhat circumscribed as compared to that in
the USA. In India the fundamental rights are not so broadly coded as in the USA and the
limitations there on have been stated in the constitution itself and this task has not
been left to the courts. The constitution makers adopted this strategy as they felt that
the courts might find it difficult to work out the limitations on the fundamental rights
and the same better be laid down in the constitution itself. The constitution makers also
felt that the judiciary should not be raised at the level of Super Legislature, whatever

the justification for the methodology adopted by the makers of the Constitution, the
inevitable result of this has been to restrict the range of judicial review in India.
It must, however, be conceded that the American Supreme Court has consumed its
power to interpret the constitution liberally and has made so thorough a use of the due
process of law clause that it has become more than a mere interpreter of law. It has, in
fact come to occupy the position of a maker of law and has been correctly described as
a third chamber of the legislature, indeed, as a super legislature. Of course, the US
Supreme Court has assumed this position; it has not been specifically conferred upon it
by
the
constitution.
The framers of the Indian constitution took good care not to embody the due process of
law clause in the constitution. On the contrary, the Indian constitution refers it to
procedure established by law. It can invalidate laws if they violate provisions of the
constitution but not on the ground that they are bad laws. In other words the Indian
Judiciary including the Supreme Court is not a Third Chamber claiming the power to sit
in judgement on the policy embodied in the legislation passed by the legislature.
The power of judicial review is exercised differently in different political systems. In
countries like the United Kingdom where the constitution is largely unwritten and
unitary in character and parliament is sovereign, the courts can declare an act of
parliament to be incompatible with the constitution, but they cannot invalidate a law for
being inconsistent with the constitution. In other words, the judiciary can only interpret
the
constitution.
In Germany, the Constitutional Court is empowered to shoot down not only ordinary
laws but also constitutional amendments for being inconsistent with the fundamental
character of the constitution. The situation is different in countries where a written and
federal constitution limits the powers of parliament. For instance, in the USA, the
Supreme Court can strike down legislation enacted by Congress if it finds the same to
be
incompatible
with
the
constitution.
However in India, there has been a long tussle between parliament and the Supreme
Court on the scope and limits of judicial review. The twenty-fourth amendment to the
constitution passed in 1971 authorised parliament to amend any provision of the
constitution. However, the Supreme Court subsequently declared that while parliament
was competent to amend any provision of the constitution, any amendment had to
conform to the basic framework of the constitution. This led the government of Prime
Minister Indra Gandhi to introduce the forty-second amendment to the constitution
during the proclamation of emergency, which stripped the apex court of the power of
reviewing an amendment to the constitution. However, the forty-third and forty-fourth
amendments undid the provisions of the forty-second amendment regarding powers of
the Supreme Court to judge the validity of constitutional amendments.
Thus we see that the scope of Judicial Review in India is somewhat circumscribed as
compared
to
that
in
the
U.S.A.

In India the fundamental rights are not so broadly coded as in the U.S.A and limitations
there on have been stated in the constitution itself and this task has not been left to the
courts. The constitution makers adopted this strategy as they felt that the courts might
find it difficult to work act the limitations on the fundamental rights and the same better
be
laid
down
in
the
constitution
itself.
The constitution makers also felt that the Judiciary should not be raised at the level of
'Super legislature', whatever the justification for the methods logy adopted by the
constitution makers, the inevitable result of this has been to restrict the range of judicial
review
in
India.
It must, however, be conceded that the American Supreme Court has consumed its
power to interpret the constitution liberally and has made so thorough a use of the due
process of law clause that it has become more than a more interpreter of law.
It has, in fact come to occupy the position of a maker of law and has been correctly
described as a 'third chamber of the legislature, indeed, as a super legislature. Of
course, the U.S. Supreme Court has assumed this position; it has not been specifically
conferred
upon
it
by
the
constitution.
Like the American Supreme Court, the Supreme Court of India enjoys the power of
Judicial Review' and this power has been specifically recognized by the constitution.
However its authority in relation to 'judicial review of legislation is more restricted than
that
of
the
American
Supreme
Court.
The framers of the Indian constitution took, good care not to embody the due process of
law clause in the constitution on the contrary, the Indian constitution refers to
'procedure established by law' consequently, there has been no scope for the
development "Alexandrowicz is not conceived as an additional constitution maker but as
a
body
to
apply
express
law."
It can invalidate laws if they violate provisions of the constitution but not on the ground
that they are bad laws. In other words the Indian Judiciary including the Supreme Court
is not a Third Chamber claiming the power to sit in judgement on the policy embodied in
the
legislation
passed
by
the
legislature.
Conclusion
Like the American Supreme Court, the Supreme Court of India enjoys the power of
judicial review and this power has been specifically recognised by the constitution.
However, we see that its authority in relation to judicial review of legislation is more
restricted
than
that
of
the
American
Supreme
Court.
Though the courts have the power of judicial review, the same cannot be exercised in
an arbitrary fashion. If the law-making power of parliament is not unlimited, the courts`
power to review the laws passed by parliament is also not unlimited. Like other organs

of the state, the judiciary derives its powers from the constitution and the judges are as
much under the constitution as anyone else. They can interpret and invalidate laws but
they cannot themselves assume the law making function; nor can they confer that
function on any person or institution other than the federal or provincial legislatures.
Nor can the courts make constitutional what is manifestly unconstitutional. Sovereignty
is located neither in parliament nor in the judiciary but in the constitution itself.
Despite various shortcomings of judicial review, it cannot be denied that it has played
an important role in ensuring constitutional government in the country by keeping the
centre and the states in the respective spheres. It has also enabled the Constitution to
change according to changed conditions by imparting new meaning to the constitution.
Through the exercise of this power, the Supreme Court has protected the freedom of
citizens and protected their Fundamental Rights against encroachment by the
legislative
and
executive
wings
of
the
government.
There is nothing in the world which is bad or good for itself but it is its uses which make
it bad or good. This review system also has same situation. If Supreme Court use it only
for country then it is very good but if Supreme Court uses it and keeps their own
interests in mind, it is worse for country as well as countrymen.
But we know that after principle of judicial care, Supreme Court never use it against
national interests and judges keeps national interests, safety, progress and dignity in
their
mind
instead
of
their
own
interests
or
conflicts.
So we can say it is very useful and beneficial for the country of USA and also in India.