TotalLaw 15 01 2016

(2016) 1 LAW
RNI No. APENG/2005/18975
Annual Subscription Rs. 1200/-
ISSN 2277 8829
A world law fortnightly published from Hyderabad, India.
Editor: I. Mallikarjuna Sharma

ADVISORS: B.P. Jeevan Reddy (Former Judge, Supreme Court of India),
R.V.R. Chandrasekhara Rao (Politics Professor), K. Subba Rao (Senior Advocate, Bangalore),
Umesh Chandra (Senior Advocate, Lucknow), Ravi Kiran Jain (Senior Advocate, Allahabad),
Sagar Dhara (Engineer, Hyderabad), Dr. Koenraad Elst (Indologist, Belgium)
Volume 12: Part 1
15 January 2016
CASTEISM BANE OF INDIAN SOCIETY
CONTENTS
1. Casteism Bane of Indian Society 1
2. Historical inevitability or
2,
Electoral corruption? (37) [IMS] 75
3. Autobiography of Martyr
3-4
Ramprasad Bismil (17)
4. Marxs Concept of Man (4)
5-6
Erich Fromm
5. Compassion Unlimited Plus

Action v. Union of India
& Ors. {Jallikattu-1} [IND-SC]
7-12
6. Compassion v. Union of
India &c {Jallikattu-2} [IND-SC] 13-15
7. Union of India & Ors. v. 16-18,
Col. C.B. Sharma [IND-SC] 59-60
8. Criminal immunity in re:
bullfighting [FR-CC]
19-21
9. Case of Ahmed S: removal
from Mayor post [FR-CC] 22-23
10. On Catalonian Autonomy
& Spainsh State [SPN-CC] 24-38
11. Amparo Appeal: European
Arrest Warrant [SPN-CC] 39-58
12. Supreme Court Women
Lawyers Association v.
Union of India [IND-SC] 61-65
13. U.A.Vahora v. State of
Gujarat & Anr. [IND-SC] 66-70
14. Essence of Christianity (1),
Ludwig von Feuerbach
15. Poems, Robert Frost
71-74
76
Editorial Office: 6-3-1243/156,

M.S. Makta, Opposite Raj Bhavan,
HYDERABAD - 500 082.
Ph: 23300284; E-mail: mani.bal44@gmail.com
Processing: Sai Likhita Printers, Hyderabad
(Ph: 65545979); Printed at Pragati Offset Pvt. Ltd.,
Red Hills, Hyderabad - 500 004. (Ph: 23380000)
Annual Subscription: Rs. 1200/Abroad: $ 180 (postage extra)
Life Subscription:
Rs. 12,000/-
Please donate Rs. 50/- or more.
No. 1
Patidar (Patels) Reservation agitation and its leader Hardik Patel
Kapus demand reservations
Gujarati Brahmins too not lagging
Not long ago in history, varnasrama dharma and its distorted resultant/
concomitant jaati prada (caste system) were cherished as the unique heritage
of India, which saved, conserved and promoted the Indian, especially
Hindu civilization, for thousands of years. However, with change of times
and socio-economic conditions, and spread of modern economic modes and
democratic ideas, gradually the caste system in India, which had ossified
into an oppressive exclusivist entity, began to be looked as a bane than a
boon, demands for its total abolition began to be made and the ideal of a
casteless society was and still is endorsed by many liberals, progressives,
especially leftists of various sorts. But, post-independence, in the name of
eradication of caste disabilities and inequalities, a distorted system of
reservations with wrongful appeasement of castes/communities and
accordance of special favors to the various castes/communities in the name
of their uplift, but mainly to make them vote-banks for this or that
political outfit, has taken roots and now casteism has again risen its ugly
head and almost all sections of the society, including, to an extent, even the
communities theoretically free from caste system, are plagued with caste/
factional strife. Once upon a time it was usual for castes and communities
to strive for upward social mobility but by the current reservations system
it seems every community/caste at some time or other is voicing demands
for downward gradation e.g. even relatively better off and comfortable
communities as those of Patels and Kapus, and sometimes even Brahmin
communities in certain regions also, striving to get listed as backward
classes which in effect comes to mean in the strange socio-judicial system
of our country as backward castes. Watching this ugly situation, some
times a feeling comes whether the restoration of caste system in full may be
the way out or may, in a farcical manner, turn out inevitable. Until a
conscious and concerted effort is made by the people of the country, for a
process of gradual elimination of this reservation system, keeping it to an
extent only for really economically or physically challenged persons and
not communities and palpable successes are achieved in that course, it
seems this country will have no redemption; but if the present farce
continues and intensifies the country is sure to go to the dogs.
1
NOTE: The opinions and comments in the editorials are exclusively the Editors and
need not necessarily reflect the approval or consent of all or any of the
editorial advisors or of the publisher even - IMS.
(2016) 1 LAW
HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?

[Tracing the history of Andhra, Visalandhra and separate Telangana movements]
be an Indian. (B) All charges in respect to the

India Office establishment shall be placed on the
British estimates. (C) No financial or
administrative powers in regard to the reserved
subjects should be transferred to the provincial
governments until such time as they are made
responsible regarding them to the electorates and
until then the control of the Parliament and the
Secretary of State should continue. (D) The
committee to be appointed to examine and report
on the present constitution of the Council of India
shall contain an adequate Indian element.
The proportion of Mahomedans in the
Legislative Councils and the legislative assembly
as laid down in the Congress-League Scheme
must be maintained. Women possessing same
qualifications as are laid down for men in any
part of the Scheme shall not be disqualified on
account of sex. This Congress is of opinion that
consistently with the imperial interests the
government of this country should have complete
freedom in all fiscal matters and that the question
of provincial contributions to the Imperial
exchequer be referred to the provincial Congress
committees for opinions to be placed before the
next Congress at Delhi.
Equal Rights for Women:
After the reform resolution Mrs. Sarojini Naidu
moved a resolution claiming equal rights for
women with men for franchise. It was seconded by
Smt. Anasuya Sarabhai and another lady. The
Honble Pandit Madan Mohan Malaviya suggested
postponement of the resolution till the next
Congress. [But all the same,] the resolution was
then put to the vote and carried, several delegates
voting against.
The Rowlatt Committee
A resolution condemning the recommendations
of the Rowlatt Committee was then moved by
Mr. C.R. Das. The mover in the course of his speech
said that he did not deny the existence of a revolutionary
party in this country but history shows that the evil
could not be eradicated by the repressive measures.
Self-government was the only remedy. The Government
did not investigate the causes of the revolutionary
Pandit Malaviyas resolution contd

Legislature: While holding that the people are
ripe for the introduction of full provincial
autonomy, the Congress is yet prepared with a
view to facilitating the passage of the reforms
and to save time otherwise lost in controversy to
leave the departments of law, police and justice
(Prisons excepted) in the hands of the executive
government in all provinces for a period of six
years. Executive and Judicial departments must
be separated at once. The President and the VicePresident should be elected by the council. The
proposal to institute a grand committee shall be
dropped. The provincial legislative council shall
legislate in respect of all matters within the
jurisdiction of the provincial Government
including law, justice and police, but were the
Government not satisfied with the decision of the
Legislative Council in respect of matters relating
to law, justice and police it shall be open to the
Government to refer the matter to the
Government of India. The Government of India
may refer the matter to the Indian Legislature
and the ordinary procedure shall follow. But if
grand committees are instituted this Congress is
of opinion that not less than half the strength
shall be elected by the legislative assembly. The
proportion of the elected members in the
Legislative Council shall be four-fifths.
Whenever the legislative assembly, the Council
of State or the Legislative Council is dissolved, it
shall be obligatory on the Governor-General or
the Governor as the case may be to order the
necessary elections and to resummon the body
dissolved within a period of three months from
the date of dissolution. No dissolution of the
legislature shall take place by way of appeal to
the electorate and the reason should be stated in
writing countersigned by ministers.
Parliament and India Office: (A) The Council
of India shall be abolished and there shall be two
permanent under-secretaries to assist the
Secretary of State for India, one of whom shall
- I. Mallikarjuna Sharma
Continued from Law Animated World, 31-12-2015 issue;

emphases in bold ours - IMS.
(Go to p. 75)
Law Animated World, 15 January 2016
AUTOBIOGRAPHY OF MARTYR RAMPRASAD BISMIL

discussed. So the best thing if possible in the
circumstances is to arrange one competent lawyer
who can come and talk in detail whenever the
need arises. There cannot be any restrictions in
talking to the lawyers; nor can anybody hear the
talk between the lawyer and the accused even.
Because the law protects such confidentiality, and
this has become known to me later on. Actually,
I wanted to meet some lawyers of Shahjahanpur
after my arrest, but the lawyers there are so
sheepish that they hesitate to even meet any
persons opposed to the government.
A CID Police Officer had come and met with
me. After talking a while, he expressed his desire
to make me a government witness. Thereafter
within a few days, one of our friends got so
panicked that he might also be arrested, met
Banarsilal, an accused among us, and persuaded
him to become a government witness. Banarsilal
was very much bewildered and afraid that he
would be surely convicted. If some lawyer could
have met us and gave some confidence to him,
his courage would not have failed in that manner.
Pandit Harkaran Nath had come to jail and met
one of our accused Sri Premkishan Khanna and
then Premkishan Khanna had asked him
repeatedly to meet me and other accused in the
case also. Were he to meet us and also inculcate
some confidence, then Banarsilal would never
have broken in that manner. That same day night
one police officer met Banarsilal. Later when I
was asleep they had woken Banarsilal up and
taken him away. When I got up at about 5 a.m. in
the early hours and called for Banarsilal, then one
of the prisoners, who was on watchman duty,
informed me that Banarsilal had give a statement
to the police. Actually all of our friends used to
say about Banarsilal that he would certainly
betray the society but at that time I did not get
their point into my mind. Every person knowing
him warned us that in case of any danger or harm
imminent he cannot remain unperturbed and all
of them had tried to bar his being taken for any
secret activities of our society. However, now what
was to happen, so has it happened.
PART 4:
4.6 In Prison:
Immediately as we were taken to
jail, the secret police authorities
made arrangements [instructing the
jail officers] to see that we accused
were all kept separate from each other; but, all the
same, we contrived to contact and talk to each
other. If we were kept along with the ordinary
prisoners, then there could be no trammels on our
interaction and so we were all kept locked up in
separate single cells. The same arrangements
were made in the different district jails, wherever
arrests of suspects [concerning the Kakori train
dacoity] were made. By keeping us the suspects
and accused separate, the police officers had the
facility to meet and talk to each of us separately,
sometimes threaten and put to much fear, and
sometimes dangle the carrots to try to know
somehow of our secrets. Experienced persons
would totally refuse to meet the police officers
since meeting them fetches no benefit but could
cause lot of harm instead. But some persons agree
to talk to them to elicit some information from
them. Not only just meeting and talking with
police officers but by trickery they devise even
means and ways to lure the police officers to
meet and talk to them. And all their life is spent
in such sort of affairs. But the newly joined young
activists do not know of all this worldly wisdom, nor
can they make out such sort of luring talks.
Actually when one gets no information from any
side, he gets flustered. What the police are doing
[against] and what would be ones destiny and
fate are not known. So as time keeps running on,
ones worries also go on increasing. Colluding
with the jail authorities, the police even manage
this much to make them see to it that in
interviews with families the prisoners talk about
family matters only and no matters concerning
case proceedings, political matters etc. are
Continued from Law Animated World, 31 December 2015

issue; emphases in bold ours - IMS.
3
Autobiography of Martyr Ramprasad Bismil
After some days the District Collector met us.

He began to tell us that we would be sent to
gallows and if we wanted to protect our lives, it
was better to give statements of confession. I
gave no reply to him. Thereafter the Office of the
secret police (CID) met me, talked about so many
matters and even showed many papers to me and
from that I could make some assessment as to
how far and how much the police knew about our
secret society matters. I wanted to divert their
attention to some other direction by making up
some stories, but when they got information from
reliable sources, why they will place faith in such
make believe stories. Ultimately he offered a deal
to me: if I were to reveal some connections of the
secret society with Bengal and give some
statement against the Bolshevik supporters
operating here, he would see to it that I would be
sentenced to some short period of imprisonment
only and even after sentencing, they would take
me out from Jail within a few days and send me
away to England; they would cause a reward of
Fifteen thousand rupees also to be given to me by
the Government. I was just listening and laughing
in my heart of hearts. Finally one day the top
Inspector of that secret police department came to
meet me but I refused to go out from my cell
even. Then he came to my cell and talked so
many things to convince and persuade me but
ultimately got exasperated and went away.
Identification parades were held. Whatever
number of people they could get hold of, police
brought that number of people to mix with us in
the identification parade. Fortunately for them
Mr. Ayinuddin had been deputed as the
Magistrate to inquiry into our case and he had
wholeheartedly aided the police. He had not
given any facilities due to be given to even
ordinary accused in the identification parade. For
show he kept all the paper work very clean. And
he used to talk so sweetly. He used to meet every
accused in so cordial a manner and used to tell so
many sweet things. All would think that he was
sympathizing with us very much. But nobody
could gauge that he was from the inside striking a
sound blow at us. Another such cunning officer
(2016) 1 LAW
cannot be found, I think. As long as the case was

in his court he did not give any opportunity to
anybody to make any complaint even. Even if
some trouble or dispute arises, he would handle it
or evade it in so skilled a manner that nobody
would feel anything bad about his working. Many
times he had not hesitated even to beg pardon of
the accused in the open court. But in paper work
he was so cunning that whatever he wrote was
always against the interests of the accused. When
he committed the case to the Sessions Court, citing the
various grounds for such committal then only our eyes
were opened to [we came to know about] the
serious injury he had done to our interests.
When at the time the case has not reached to

the Court, and at that juncture Banarsilal got
arrested at Rai Bareli, I had come to know of the
arrest without much delay. I then asked Pandit
Harkaran Nath to put aside all other work and go
straight to Rai Bareli and meet with Banasilal
who was under arrest. But he (Harkaran Nath) did
not pay attention to my words. I had suspicions
regarding Banarsilal at that time itself, since his
way of conduct in the society was not correct and
proper. When he used to mix with other members
and talk to them, he used to say to them that he
was a district organizer and had high level
contacts in the party. He would instruct them to
obey his orders. He would even command them
to wash and clean his used plates and utensils. He
was also much concerned about his facial figure,
makeup, attracted to some luxuries etc. He used
to always keep a mirror, a comb and a soap, etc.
with him. I was afraid about his spilling the beans
even. But by that time he became a confidant of
an important person in our secret society. That
person had spent hundreds of rupees to help this
person (Banarsidas). That was why we were also
giving him monthly allowance, right till the end.
I used to complain and warn very much regarding
his matters but nothing transpired. In the end,
what I feared had come to pass. He was a mere
henchman for hire and he could not bear much burden.
Immediately on arrest he gave out a detailed
statement to the police.
(to be continued)
MARXS CONCEPT OF MAN

- Erich Fromm
3. THE PROBLEM OF CONSCIOUSNESS,

SOCIAL STRUCTURE AND
THE USE OF FORCE
as in a camera obscura, this phenomenon arises

just as much from their historical lifeprocess as
the inversion of objects on the retina does from
their physical life-process.1
In the first place, it should be noted that Marx,
like Spinoza and later Freud, believed that most
of what men consciously think is "false"
consciousness, is ideology and rationalization;
that the true mainsprings of man's actions are
unconscious to him. According to Freud, they are
rooted in man's libidinal strivings; according to
Marx, they are rooted in the whole social
organization of man which directs his
consciousness in certain directions and blocks
him from being aware of certain facts and
experiences.2
A problem of the greatest importance is raised

in the passage just quoted, that of human
consciousness. The crucial statement is: It is not
consciousness of men that determines their being, but,
on the contrary, their social being that determines their
consciousness.
Marx gave a fuller statement with regard to the

problem of consciousness in German Ideology:
The fact is, therefore, that definite individuals
who are productively active in a definite way enter into
these definite social and political relations. Empirical
observations must in each separate instance bring

out empirically, and without any mystification
and speculation, the connection of the social and
political structure with production. The social
An instrument perfected in the late Middle Ages, to throw,

by means of mirrors, an image of a scene on a plane
surface. It was widely used by artists to establish the
correct proportions of a natural object or scene. The
image appeared on the paper inverted, though the later
use of a lens corrected this.
1
German Ideology, 1.c. p. 13-4.
2
Cf. my article in Suzuki, Fromm, de Martino, Zen
Buddhism and Psychoanalysis, Harper and Brothers, New
York, 1960. Cf. also Marx's statement: "Language is as
old as consciousness, language is practical consciousness,
as it exists for other men, and for that reason is really
beginning to exist for me personally as well; for
language, like consciousness, only arises from the need,
the necessity of intercourse with other men. Where there
exists a relationship, it exists for me: the animal has no
'relations' with anything, cannot have any. For the animal,
its relation to others does not exist as a relation.
structure and the State are continually evolving out of

the life-process of definite individuals, but of
individuals, not as they may appear in their own or
other people's imagination, but as they really are; i.e., as
they are effective, produce materially, and are active
under definite material limits, presuppositions and
conditions independent of their will.
The production of ideas, of conceptions, of

consciousness, is at first directly interwoven with
the material activity and the material intercourse
of men, the language of real life. Conceiving,
thinking, the mental intercourse of men, appear at
this stage as the direct afflux from their material
behavior. The same applies to mental production
as expressed in the language of the politics, laws,
morality, religion, metaphysics of a people. Men
are the producers of their conceptions, ideas, etc.
real, active men, as they are conditioned by the
definite development of their productive forces
and of the intercourse corresponding to these, up
to its furthest forms. Consciousness can never be
Consciousness is therefore from the very beginning a social

product, and remains so as long as men exist at all.
Consciousness is at first, of course, merely consciousness

concerning the immediate sensuous environment and
consciousness of the limited connection with other
persons and things outside the individual who is growing
self-conscious. At the same time it is consciousness of
nature, which first appears to men as a completely alien,
all-powerful and unassailable force, with which men's
relations are purely animal and by which they are
overawed like beasts; it is thus a purely animal
consciousness of nature (natural religion). - German
Ideology, 1.c. p.
anything else than conscious existence, and the existence

of men in their actual lifeprocess. If in all ideology
men and their circumstances appear upside down
Continued from Law Animated World, 31 December

2015 issue; emphases in bold ours - IMS.
5
Marxs Concept of Man (Erich Fromm)
The last concept, that of "revolutionary practice",

leads us to one of the most disputed concepts in Marx's
philosophy, that of force. First of all, it should be noted
how peculiar it is that the Western democracies should feel
such indignation about a theory claiming that society can
be transformed by the forceful seizure of political power.
The idea of political revolution by force is not at all a
Marxist idea; it has been the idea of bourgeois society
during the last three hundred years. Western
Its is important to recognize that this theory does

not pretend that ideas or ideals are not real or not
potent. Marx speaks of awareness, not of ideals. It is
exactly the blindness of man's conscious thought which
prevents him from being aware of his true human needs,
and of ideals which are rooted in them. Only if false
consciousness is transformed into true
consciousness, that is, only if we are aware of
reality, rather than distorting it by rationalizations
and fictions, can we also become aware of our
real and true human needs.
It should also be noted that for Marx science
democracy is the daughter of the great English,

French and American revolutions; the Russian
revolution of February, 1917, and the German
revolution of 1918 were warmly greeted by the
West, despite the fact that they used force. It is clear
that indignation against the use of force, as it exists in the
Western world today, depends on who uses force, and
against whom. Every war is based on force; even
itself and all powers inherent in man are part of the

productive forces which interact with the forces of
nature. Even as far as the influence of ideas on
human evolution is concerned, Marx was by no

means as oblivious to their power as the popular
interpretation of his work makes it appear. His
democratic government is based on the principle of force,

which permits the majority to use force against a minority,
if it is necessary for the continuation of the status

quo. Indignation against force is authentic only from a
pacifist standpoint, which holds that force is either
absolutely wrong, or that aside from the case of the
most immediate defense its use never leads to a
change for the better. However, it is not sufficient
to show that Marx's idea of forceful revolution
(from which he excluded as possibilities England
and the United States) was in the middle-class
tradition; it must be emphasized that Marx's theory
argument was not against ideas, but against ideas which

were not rooted in the human and social reality, which
were not, to use Hegel's term, "a real possibility." Most
of all, he never forgot that not only do circumstances
make man; man also makes circumstances. The
following passage should make clear how

erroneous it is to interpret Marx as if he, like
many philosophers of the enlightenment and
many sociologists of today, gave man a passive
role in the historical process, as if he saw him as
the passive object of circumstances:
constituted an important improvement over the middleclass view, an improvement rooted in his whole theory of
history.
The materialistic doctrine [in contrast to Marx's

view] concerning the changing of circumstances
and education forgets that circumstances are
changed by men and that the educator himself
must be educated. This doctrine has therefore to
divide society into two parts, one of which is
superior to society [as a whole].
The coincidence of the changing of
circumstances and of human activity or
selfchanging can only be comprehended and
rationally
understood
as
revolutionary
3
practice.
3
Marx saw that political force cannot produce

anything for which there has been no preparation in the
social and political process. Hence that force, if at all
necessary, can give, so to speak, only the last push to a
development which has virtually already taken place,
but it can never produce anything truly new. Force, he
said, is the midwife of every old society pregnant with
a new one [Capital I, 1.c., p. 824]. It is exactly one
of his great insights that Marx transcends the
traditional middleclass concept he did not believe in
the creative power of force, in the idea that political
force of itself could create a new social order. For
this reason, force, for Marx, could have at most
only a transitory significance, never the role of a
permanent element in the transformation of
society.
(to be continued)
***
German Ideology, 1.c. p. 197-8 [My italics -E.F.] Cf. also

Engels' famous letter to Mehring (July 14, 1893) in which
he states that Marx and he had neglected [by emphasizing
the formal aspects of the relationship between the
socioeconomic structure and ideology to study] the
manner and mode of how ideas come into being.
(2016) 1 LAW
(2016) 1 LAW Compassion Unlimited Plus Action v. Union of India & Ors. {Jallikattu-1} [IND-SC]
UPON hearing the counsel the Court made the

following
ORDER
1. In these writ petitions preferred under Article
32 of the Constitution of India, the petitioners,
Compassion Unlimited Plus Action, the Animal
Welfare Board of India, Gauri Maulekhi, People
for Ethical Treatment of Animals India and
Federation of Indian Animal Protection
Organizations, have prayed for an appropriate
writ, order or direction for quashing Notification
No.G.S.R.13(E) dated 7th January, 2016,
published by the respondent, the Union of India,
in The Gazette of India; Extraordinary, and
further to command the respondent to ensure
compliance with the law laid down in Animal
Welfare Board of India vs. A. Nagaraja and
Others (2014) 7 SCC 547, and to pass such other
order as may be deemed necessary. There is a
prayer for stay of the impugned Notification.
2. We have heard Mr. C.A. Sundaram, Mr.
Sidharth Luthra, Mr. K.K. Venugopal, Mr. Anand
Grover, Mr. R. Venkataramani, Mr. Dushyant A.
Dave, learned senior counsel along with Ms.
Anjali Sharma, learned counsel and other learned
counsel for the petitioners and Mr. Mukul
Rohatgi, learned Attorney General for the Union
of India, Mr. L.N. Rao and Mr. Shekhar Naphade,
learned senior counsel for the State of Tamil
Nadu
and
Mr.
Nishant
Ramakantrao
Katneshwarkar, learned counsel for the State of
Maharashtra.
3. The present case has a history to narrate. The
Central Government had issued a Notification on
11th July, 2011. The said Notification read as
follows:
(2016) 1 LAW ISC-1
SUPREME COURT OF INDIA

AT NEW DELHI
CIVIL APPELLATE JURISDICTION
Writ Petition (Civil) No. 24 of 2016

(arising out of SLP (C) No. 4385 of 2010)
Date of Judgment: Friday, 9 January 2015

Compassion Unlimited
Plus Action
Petitioner (s)
Respondent(s).
Versus
Union of India & Ors.
(With appln. (s) for stay/interim directions and office report)
WITH W.P.(C) No.23/2016

(With appln.(s) for stay and office report)
W.P.(C) No.25/2016
(With appln.(s) for interim relief and interim relief and office report)
W.P.(C) No.26/2016
(With appln.(s) for directions and office report)
W.P.(C) No.27/2016
(With office report)
Contempt Petition (C) No. D 1269/2016 in C.A. No.5387/2014
Citation: (2016) 1 LAW ISC-1
CORAM:
DIPAK MISRA, J.
N.V. RAMANA, J.
***
Short Notes:
Jallikattu is a traditional sport of running with and

catching bulls let loose wildly on the occasion of crops festival days
(Sankranthi/Pongal) in some parts of Tamil Nadu and also in some
villages of Chittoor district, Andhra Pradesh. It is more euphorically
held in Tamil Nadu with peoples emotions and sentiments attached to
it. Bulls are only tamed but not killed unlike in the Spanish and
French bullfights. Rather, the bull tamers often get injured and at
times some even get killed. When the European Courts themselves
allow the sanguine sport of bullfighting in the name of artistic
expression and longstanding local tradition, there was no reason for
our Apex Court to insist on banning it. More so, when thousands of
cattle are slaughtered in revolting manner in big mechanized
slaughter houses and their meat exported abroad to make our country
India the largest exporter of beef in the world all this done legally
without any scruples or any real protest/resistance from the so-called
societies for prevention of cruelty to animals or any administrative/
judicial bodies.
MINISTRY OF ENVIRONMENT AND FORESTS

NOTIFICATION
New Delhi, the 11th July, 2011

G.S.R. 528(E).- In exercise of the powers
conferred by Section 22 of the Prevention of
Cruelty to Animals Act, 1960 (59 of 1960), and
in supersession of the Notification of the
Government of India in the erstwhile Ministry of
Social Justice and Empowerment No. G.S.R. 619
***
ISC-1
Courtesy: Supreme Court of India at http://judis.nic.in/;

Paragraph numbers and emphases in bold ours - IMS.
7
ISC-2
Compassion Unlimited Plus Action v. Union of India & Ors. {Jallikattu-1} [IND-SC] (2016) 1 LAW
(E), dated 14-10-1998, except as respects things

done or omitted to be done before such
supersession, the Central Government, hereby
specifies that the following animals shall not be
exhibited or trained as performing animals, with
effect from the date of publication of this
notification, namely:-
56. The PCA Act has been enacted with an

object to safeguard the welfare of the animals
and evidently to cure some mischief and age old
practices, so as to bring into effect some type of
reform, based on eco-centric principles,
recognizing the intrinsic value and worth of
animals. All the same, the Act has taken care of
the religious practices of the community, while
killing an animal vide Section 28 of the Act.
1. Bears
2. Monkeys
3. Tigers
4. Panthers
5. Lions
6. Bulls
[F.No.27-1/2011-AWD]
61. When we look at the rights of animals from

the national and international perspective, what
emerges is that every species has an inherent
right to live and shall be protected by law,
subject to the exception provided out of
necessity. Animal has also honour and dignity
which cannot be arbitrarily deprived of and its
rights and privacy have to be respected and
protected from unlawful attacks.
62. The Universal Declaration of Animal
Welfare (UDAW) is a campaign led by World
Society for the Protection of Animals (WSPA) in
an attempt to secure international recognition for
the principles of animal welfare. UDAW has had
considerable support from various countries,
including India. WSPA believes that the world
should look to the success of the Universal
Declaration of Human Rights (UDHR) to set out
what UDAW can achieve for animals. Five
freedoms referred to in UDAW, which we will
deal with in latter part of the judgment, find
support in PCA Act and the rules framed
thereunder to a great extent. Article 51A(g) states
that it shall be the duty of citizens to have
compassion for living creatures. In State of
Gujarat v. Mirzapur Moti Kureshi Kassab Jamat
and Others (2005) 8 SCC 534, this Court held
ANJANI KUMAR, Director(AW)
4. The matter when travelled to this Court, a twoJudge Bench was required to examine the rights
of animals under the Constitution of India, laws,
culture, tradition, religion and ethology,
especially in connection with the conduct of
Jallikattu, bullock cart races, etc. in the States
of Tamil Nadu and Maharashtra, with particular
reference to the provisions of the Prevention of
Cruelty to Animals Act, 1960 (for short, 'the PCA
Act'), the Tamil Nadu Regulation of Jallikattu
Act, 2009, and the Notification dated 11th July,
2011, issued by the Central Government under
Section 22(ii) of the PCA Act. The Court
adverted to various aspects and it expressed its
views from various angles. Paragraphs 55, 56, 61,
62, 67, 73 and 74, are relevant to be reproduced
for understanding the analysis made therein. We
quote the same:
55. As early as 1500-600 BC in IshaUpanishads, it is professed as follows:
The universe along with its creatures belongs to
the land. No creature is superior to any other.
Human beings should not be above nature. Let no
one species encroach over the rights and privileges
of other species.
huge cutting machines and transporting the mutton

and/or beef to all over the country and abroad also
for sale. Also this does not prevent them from
keeping calm at the proliferation of thousands of
poultry farms, etc. where the chicken lead miserable,
stupefied existence, artificially generated, brought
up and cut to pieces or fed to lay eggs for short
periods, and without their enjoying any period of
natural life are sent to heavens! Only when it
comes to harmless entertainment or sports involving
such animals, all these sermons are sought to be put
in practice!! IMS.
In our view, this is the culture and tradition of

the country, particularly the States of Tamil
Nadu and Maharashtra.
This does not prevent the preachers of such sermons

from keeping calm, to say the least, at terrible
slaughter of animals in thousands in abattoirs using
that by enacting Article 51A(g) and giving it the
status of a fundamental duty, one of the objects
sought to be achieved by Parliament is to ensure
that the spirit and message of Articles 48 and 48A are honoured as a fundamental duty of every
citizen. Article 51A(g), therefore, enjoins that it
was a fundamental duty of every citizen to have
compassion for living creatures, which means
concern for suffering, sympathy, kindliness etc.,
which has to be read along with Sections 3,
11(1)(a) & (m), 22 etc. of PCA Act.
XXXXXXX
73. Jallikattu and other forms of Bulls race, as
the various reports indicate, causes considerable
pain, stress and strain on the bulls. Bulls, in
such events, not only do move their head
showing that they do not want to go to the arena
but, as pain is being inflicted in the vadivasal is
so much, they have no other go but to flee to a
situation which is adverse to them. Bulls, in that
situation, are stressed, exhausted, injured and
humiliated. Frustration of the Bulls is noticeable
in their vocalization and, looking at the facial
expression of the bulls, ethologist or an ordinary
man can easily sense their suffering. Bulls,
otherwise are very peaceful animals dedicating
their life for human use and requirement, but are
subjected to such an ordeal that not only inflicts
serious suffering on them but also forces them to
behave in ways, namely, they do not behave,
force them into the event which does not like
and, in that process, they are being tortured to the
hilt. Bulls cannot carry the so-called performance
without being exhausted, injured, tortured or
humiliated. Bulls are also intentionally subjected
ISC-3
to fear, injury both mentally and physically

and put to unnecessary stress and strain for
human pleasure and enjoyment, that too, a
species totally dedicated its life for human
benefit, out of necessity.
74. We are, therefore, of the view that Sections
21, 22 of the PCA Act and the relevant
provisions have to be understood in the light of
the rights conferred on animals under Section 3,
read with Sections 11(1)(a) & (o) and Articles
51A(g) and (h) of the Constitution, and if so
read, in our view, Bulls cannot be used as a
Performing Animals for Jallikattu and Bullockcart Race, since they are basically draught and
pack animals, not anatomically designed for such
performances.
5. Mr. C.A. Sundaram and Mr. Anand Grover,

learned senior counsel, have also drawn our
attention to paragraphs 90 and 91. They read as
follows:
90. We, therefore, hold that AWBI is right in its
stand that Jallikattu, Bullock-cart Race and such
events per se violate Sections 3, 11(1)(a) and
11(1)(m)(ii) of PCA Act and hence we uphold
the notification dated 11.7.2011 issued by the
Central Government, consequently, Bulls cannot
be used as performing animals, either for the
Jallikattu events or Bullock-cart Races in the
State of Tamil Nadu, Maharashtra or elsewhere
in the country.
91. We, therefore, make the following
declarations and directions:
(1) We declare that the rights guaranteed to the
Bulls under Sections 3 and 11 of PCA Act read
with Articles 51A(g) & (h) are cannot be taken
away or curtailed, except under Sections 11(3)
and 28 of PCA Act.
(2) We declare that the five freedoms, referred to
earlier be read into Sections 3 and 11 of PCA
Act, be protected and safeguarded by the States,
Central Government, Union Territories (in short
Governments), MoEF and AWBI.
(3) AWBI and Governments are directed to take
appropriate steps to see that the persons-incharge or care of animals, take reasonable
measures to ensure the well-being of animals.
(4) AWBI and Governments are directed to take
steps to prevent the infliction of unnecessary
Oh, then what about castration of bulls? Almost all bulls

used for agricultural purposes are castrated and perhaps
that is painless, stress and strain-less process for the
animals much more than the racing ordeal for a day or
two in festival seasons! And slaughtering bulls for beef
and exporting it to foreign countries (India is the biggest
beef exporter in the world) and conducting beef-fests, etc.
is also quite OK, it is quite painless and stress and strainless for bulls, buffaloes etc. as, after all, they will not be
existing to experience those emotions, no? This is why
and how the proverb one lost his senses when put to
formal education! (cadaveastea unna mati poayindaTa!

!) seems to have emerged in peoples
wisdom - IMS.
9
ISC-4
pain or suffering on the animals, since their

rights have been statutorily protected under
Sections 3 and 11 of PCA Act.
6. When the matter stood thus, the Central

Government has issued a Notification on 7th
January, 2016. The said Notification reads as
follows:
(5) AWBI is also directed to ensure that the

provisions of Section 11(1)(m)(ii) scrupulously
followed, meaning thereby, that the person-incharge or care of the animal shall not incite any
animal to fight against a human being or another
animal.
MINISTRY OF ENVIRONMENT AND

CLIMATE CHANGE
NOTIFICATION
New Delhi, the 7th January, 2016
G.S.R. 13(E).- In exercise of the powers

conferred by Section 22 of the Prevention of
Cruelty to Animals Act, 1960 (59 of 1960), and
in supersession of the notification of the
Government of India in the Ministry of
Environment and Forest, Government of India
number G.S.R. 528(E), dated the 11th July, 2011,
except as respects things done or omitted to be
done before such supersession, the Central
Government, hereby specifies that the following
animals shall not be exhibited or trained as
performing animal, with effect from the date of
publication of this notification, namely:1. Bears
2. Monkeys
3. Tigers
4. Panthers
5. Lions
6. Bulls
Provided that bulls may be continue to be
exhibited or trained as a performing animal, at
events such as Jallikattu in Tamil Nadu and
bullock cart races in Maharashtra, Karnataka,
Punjab, Haryana, Kerala and Gujarat in the
manner by the customs of any community or
practiced traditionally under the customs or as a
part of culture, in any part of the country subject
to the following conditions, namely:(i) Such event shall take place in any District
where it is being traditionally held annually,
at such place explicitly permitted by the
District Collector or the District Magistrate;
(6) AWBI and the Governments would also see

that even in cases where Section 11(3) is
involved, the animals be not put to unnecessary
pain and suffering and adequate and scientific
methods be adopted to achieve the same.
(7) AWBI and the Governments should take
steps to impart education in relation to human
treatment of animals in accordance with Section
9(k) inculcating the spirit of Articles 51A(g) &
(h) of the Constitution.
(8) Parliament is expected to make proper
amendment of the PCA Act to provide an
effective deterrent to achieve the object and
purpose of the Act and for violation of Section
11, adequate penalties and punishments should
be imposed.
(9) Parliament, it is expected, would elevate
rights of animals to that of constitutional rights,
as done by many of the countries around the
world, so as to protect their dignity and honour.
(10) The Governments would see that if the
provisions of the PCA Act and the declarations
and the directions issued by this Court are not
properly and effectively complied with,
disciplinary action be taken against the erring
officials so that the purpose and object of PCA
Act could be achieved.
(11) TNRJ Act is found repugnant to PCA Act,
which is a welfare legislation, hence held
constitutionally void, being violative or Article
254(1) of the Constitution of India.
(12) AWBI is directed to take effective and

speedy steps to implement the provisions of PCA
Act in consultation with SPCA and make
periodical reports to the Governments and if any
violation is noticed, the Governments should
take steps to remedy the same, including
appropriate follow-up action.
10
In my opinion, the Government did a mistake; they

should have altogether deleted Bulls from this list with
the explanation in aims and objects that bulls belong to a
completely different category of tamed animals, and not
wild animals, and hence deletion is justified. Now what if
the President and/or Prime Minister of India say a la
President Jackson (US), Well, Chief Justice (Marshall)
has passed the order; let him enforce it! - IMS.
ISC-5
race, particularly in the 21st century and,

therefore, the Notification dated 7th January,
2016, should be stayed.
8. Mr. Mukul Rohatgi, learned Attorney General,
in his turn, has submitted that the writ petitions
are not maintainable under Article 32 of the
Constitution of India as the fundamental rights of
the Animal Welfare Board and other petitioners
are in no way affected. The said issue shall be
debated at a later stage, for earlier a writ petition
was entertained and as we perceive the Board and
the others have really not approached the Court
for protection of their fundamental rights, but the
rights of the animals in the constitutional and
statutory framework. Be that as it may, as such a
preliminary objection has been raised by the
learned Attorney General, we keep the issue
open. Apart from the said submission, it is
canvassed by Mr. Mukul Rohatgi, learned
Attorney General that paragraph 91 of the
judgment pronounced in A. Nagaraja case
(supra) has to be appropriately understood. In
essence, the submission of Mr. Rohatgi, is that
this Court has not totally prohibited the
participation of bulls in the Jallikattu, but it
desired that care should be taken so that the bulls
are not meted with cruelty. He has emphasized on
the various terms and the guidelines provided in
the Notification dated 7th January, 2016, so that
cruelty to the participating animals is avoidable.
The issue is of the stage of avoidability or
treating with cruelty.
(ii) bullock cart race shall be organised on a

proper track, which shall not exceed two
kilometres. In case of Jallikattu, the moment
the bull leaves the enclosure, it shall be
tamed within a radial distance of 15 metres;
(iii) ensure that the bulls are put to proper
testing by the authorities of the Animal
Husbandry and Veterinary Department to
ensure that they are in good physical
condition to participate in the event and
performance enhancement drugs are not
administered to the bulls in any form; and
(iv) ensure that the rights conferred upon the
animals under section 3 and clause (a) and
clause (m) of sub-section(1) of section 11 of
the Prevention of Cruelty to Animals Act,
1960 (59 of 1960) and five freedoms
declared by the Hon'ble Supreme Court in
its order dated 7th May, 2014 in Civil
Appeal No. 5387 of 2014 are fully protected
during such events:
Provided further that any event of Jallikattu or
bullock cart races so organised shall be held with
the prior approval of the District Authorities
concerned:
Provided also further that the Jallikattu or
bullock cart races so organised shall be duly
monitored by the District Society for Prevention
of Cruelty to Animals and State Animal Welfare
Board or the District Authorities as the case may
be, ensuring that no unnecessary pain or
suffering is inflicted or caused, in any manner,
whatsoever, during the course of such events, or
in preparation thereof. [F.No.27/01/2011-AWD]
HEM PANDE, Special Secy.
7. It is submitted by the learned senior counsel

appearing for the petitioners that the said
Notification does not really efface the verdict of
this Court and, in fact, it runs contrary to the
provisions of the PCA Act. It is urged by them
that though the Central Government by recent
Notification has added conditions, but treating of
bulls in such a manner would not be justifiable
regard being had to the compassion which has
been enshrined under the PCA Act and the
fundamental duties engrafted under Article 51-A
of the Constitution of India. Learned counsel
would urge that the use of bulls in this manner
cannot be a matter of festivity for the human
Spanish bull fights still go on in largely attended or

overcrowded stadia, in which the bullfighters, if lucky to
survive, pierce a sharp sword between the eyes of the bull
in the end and kill it, and the whole crowd goes agog with
applause! Even the highest French Court has not found
fault with this France's Constitutional Council said that the
"traditional" bullfights "do not harm people's protected
constitutional rights". Animal rights campaigners sought to end
bullfighting on animal cruelty concerns. Bullfighting, usually
identified as a Spanish passion, has been popular in the south of
France for the past 150 years the sport is particularly popular
in the cities of Arles, Bayonne and Nimes, which hold
extravagant festivals in connection with the fights. According to
Agence France Presse, more than 1,000 bulls are killed each
year in French bullfighting rings. - IMS.
11
ISC-6
9. Mr. L.N. Rao and Mr. Shekhar Naphade,

learned senior counsel appearing for the State of
Tamil Nadu, have submitted that this sport is in
AN APPEAL
We request all our readers, friends and wellwishers to liberally subscribe to/ contribute for
and advertise in this unique type of journal
and also aid in increasing its circulation. We
also request that scholarly articles on any
aspect of law and society, preferably with
comparative international study, be sent to us.
vogue for centuries and this Court has taken note of the
nature of the Jallikattu in the earlier decision in A.
Nagaraja case (supra) and, therefore, there cannot
be a prohibition as that will be creating a dent in the
culture. The same view is echoed with more
concern by Mr. Shekhar Naphade. Mr. K.K.

Venugopal, learned senior counsel appearing for
the Federation of Indian Animal Protection
Organizations (FIAPO), per contra, would
contend that cruelty to animals is inconceivable
in the present day. Learned senior counsel has
seriously criticized such an activity on the
foundation that the sports of this nature deserve to
be prohibited. It is urged by him that sports with
articles and sports with living beings are different
and the Court should take cognizance of the
same.
10. Having heard learned counsel for the parties,
we are inclined to issue notice. The respondents
who have entered appearance be served with the
copy of the petition within a week hence. Counter
affidavit be filed within four weeks therefrom.
Rejoinder affidavit, if any, be filed within four
weeks from the date of receipt of the counter
affidavit. The un-served respondents be served
through Dasti. As an interim measure, we direct
that there shall be stay of Notification dated 7th
January, 2016, issued by the Ministry of
Environment Forest and Climate Change, until
further orders.
Let the matter be listed on 15th March, 2016.
Life subscription for this journal: Rs. 12,000/- and the

annual subscription for 2016: Rs. 1200/-. Any annual
subscription will count for one volume i.e. January to
December of the year, and back-numbers of the year
will be supplied to the subscriber. Also we request
for scholarly, thought provoking articles on various
facets of socialism, democracy and human welfare
for publication in this journal. - I.M. Sharma, Editor.
ADVERTISEMENT TARIFF:
Full inner cover page
: Rs. 12,000/Ordinary full page
: Rs. 10,000/Ordinary half page
: Rs. 5000/Cheques/DDs to be sent in favour of:
LAW ANIMATED WORLD,

H. No. 6-3-243/156, M.S. Makta,
Opp. Raj Bhavan, HYDERABAD - 500 082.
Ph: 040 - 23300284; E-mail: mani.bal44@gmail.com
(for outstation cheques please add Rs. 75/- bank charges)
Read and subscribe to:
FRONTIER
Editor: TIMIR BASU
A radical leftist weekly being published
since the last 45 years from Calcutta
Annual subscription
:
Rs. 350/Associate Membership
:
Rs. 600/- (annual)
Life subscription
:
Rs. 4000/-+
Advertisement Tariff
Outer Cover
:
Rs. 5000/Inner cover
:
Rs. 4000/Full page
:
Rs. 3000/Half page
:
Rs. 2000/-.
For details contact:
*****
Oh, what about boxing and fencing? Boxing is a dangerous

sport. Not only are boxers repeatedly punched in the face,
stomach, arms, and various other body parts, they also face
punches that can reach over 2,000 pounds of pressure. And
FRONTIER,
61 Mott Lane, KOLKATA - 700013 (W.B.)
Death Under the Spotlight: The Manuel Velazquez

Collection documents two thousand and thirty-six fights
in which a boxer was killed. Some significant deaths
were reported in fencing also. Innumerable deaths have
been reported in soccer and hockey events too - IMS.
Ph: 033 - 22653202; E-mail: frontierweekly@hotmail.com

frontierweekly@yahoo.co.in
Website: www.geocities.com/frontierweekly
12
(2016) 1 LAW ISC-7
embrace the running bulls by hanging on to their

hump as long as possible; and they are unarmed.
It is also put forth that the bulls are trained not to
let the village youth clamber on to their humps
and in no case they are led away by the owners
afterwards.
4. It is urged that Jallikattu is a socio-religious
festival and not an entertainment and the people
at various places in the State of Tamil Nadu have
immense faith in the said festival for many a
reason. Emphasis is laid on the culture of the
State and the belief of the pastoral communities.
In essence, it is urged that there is no cruelty
meted out to the bulls in such a festival or game.
5. Mr. N. Rajaraman, learned counsel appearing
for the applicant would submit that it is a 3000
years old tradition and this Court had never meant
in Animal Welfare Board of India vs. A. Nagaraja
& Ors. [(2014) 7 SCC 547] that there should be
ban on Jallikattu. It is urged by him that there was
no justification or necessity to direct stay of the
Notification issued by the Central Government on
07.01.2016 at the instance of the petitioners, for
they do not have any idea about the cultural base
of this Country. Learned counsel would submit
that the age old culture of this country is
perceivable in the villages but not in the metro
cities where the representatives of the petitioners
or the petitioners reside.
6. We had already adverted to many an aspect in
our order passed on 12.01.2016. However, for the
issue raised today by the learned counsel for the
applicant, it is necessary to refer to paragraphs 43
and 44 of the decision in A. Nagaraja (supra).
They read as follows:
43. All animals are not anatomically designed
to be performing animals. Bulls are basically
Draught and Pack animals. they are live-stock
used for farming and agriculture purposes, like
ploughing, transportation etc. Bulls, it may be
noted, have been recognized as Draught and
Pack animals in the Prevention of Cruelty to
Draught and Pack Animals Rules, 1965.
Draught means an animal used for pulling
heavy loads. Rules define large bullock to

AT NEW DELHI
ORIGINAL JURISDICTION
I.A. No.
of 2016 in
Date of Judgment: Wednesday, 13 January 2016
Compassion Unlimited
Plus Action
Petitioner (s)
Respondent(s).
Versus
(With application (s) for intervention)
CORAM:
DIPAK MISRA, J.
N.V. RAMANA, J.
***
Short Notes: This is the second Jallikattu order extending
the ban on the bull-taming sport for an indefinite period in
spite of the Central Governments efforts to explain the
need for relaxation of the same and permitting the sport,
which is intricately tied up with the socio-religious-cultural
traditions/beliefs of the Tamil people. The wisdom of such
ban has already been questioned in detail in the notes to
the previous decision.
***
UPON hearing the counsel the Court made the

following
ORDER
1. Taken on Board.
2. The application for intervention stands
allowed.
3. Apart from intervention, in the application
there is also a prayer seeking vacation of the
order of stay dated 12.01.2016 passed in the writ
petition. It is contended in the application that the
Jallikattu is not a fight between bulls and humans
but a game where the participants are required to
ISC-7

13
ISC-8
(i) any performing animal unless he is
registered in accordance with the
provisions of this Chapter;
(ii) as a performing animal, any animal
which the Central Government may, by
notification in the official gazette,
specify as an animal which shall not be
exhibited or trained as a performing
animal.
mean a bullock the weight of which exceeds

350 Kgs. Bullocks have a large abdomen and
thorax and the entire body has a resemblance
to a barrel shape, which limits ability to run.
Bulls have also limitations on flexing joins and
the rigid heavily built body and limited flexion
of joints do not favour running faster. Due to
that body constitution, the Prevention of
Cruelty to Animals (Transportation of Animals
on Foot) Rules, 2001, especially Rule 11 says
that no person shall use a whip or a stick in
order to force the animal to walk or to hasten
the pace of their walk. Bulls, it may be noted,
are cloven footed (two digits) animals and two
digits in each leg can comfortably bear weight
only when they are walking, not running.
Horse, on the other hand, is a solid hoofed
plant-eating quadruped with a flowing mane
and tail, domesticated for riding and as a
draught animal. Horse power, we call it as an
imperial unit of power, equal to 550 footpounds per second. Horses anatomy enables it
to make use of speed and can be usefully used
for horse racing etc., unlike Bulls.
44. Bulls, therefore, in our view, cannot be a
performing animal, anatomically not designed
for that, but are forced to perform, inflicting
pain and suffering, in total violation of
Sections 3 and Section 11(1) of PCA Act.
Chapter V of the PCA Act deals with the
performing animals. Section 22 of the PCA
Act places restriction on exhibition and
training of performing animals, which reads as
under:
22. Restriction on exhibition and training of
performing animals : No person shall exhibit
or train
7. In addition to the same, it should be apposite to

refer to paragraph 8 where the following
contention was raised :8. The State of Tamil Nadu has also taken up
the stand that every effort shall be made to see
that bulls are not subjected to any cruelty so as to
violate the provisions of the PCA Act and the
sport event can be regulated as per the provisions
of the TNRJ Act. Further, it was also pointed out
that the bulls taking part in the Jallikattu,
Bullock-cart Race etc. are specifically identified,
trained, nourished for the purpose of the said
sport event and owners of Bulls spend
considerable money for training, maintenance
and upkeep of the bulls.
8. The two-Judge Bench in paragraph 36 had

dealt with suffering caused to the animals. The
said passage reads as under:36. We will now examine whether the second
limb of Section 3 which casts a duty on the
person in-charge or care of animal to prevent the
infliction upon an animal, unnecessary pain or
suffering, discharges that duty. Considerations,
which are relevant to determine whether the
suffering is unnecessary, include whether the
suffering could have reasonably been avoided or
reduced, whether the conduct which caused the
suffering was in compliance with any relevant
enactment. Another aspect to be examined is
whether the conduct causing the suffering was
for a legitimate purpose, such as, the purpose for
benefiting the animals or the purpose of
protecting a person, property or another animal
etc. Duty is to prevent the infliction of
unnecessary pain or suffering, meaning thereby,
no right is conferred to inflict necessary/
unnecessary pain or suffering on the animals. By
organizing Jallikattu and Bullock-cart race, the
organizers are not preventing the infliction of
Oh, so kuthirai-kaTTu (horse catching) may be OK, and

people can switch over from Jallikattu to this Kattu? See
this enlightening opinion on horse racing: Horse racing is
portrayed today as a sport of kings for the fashionable. A lot
of effort is put in to covering up the true face of the industry.
Dr. Holly Cheever, an award winning veterinary surgeon
and expert on animal abuse prevention noted cruelty is an
inherent part of the horse racing industry. [http://www.saaw
international.org/horseracing.htm]
14
unnecessary pain or suffering, but they are
inflicting pain and suffering on the bulls, which
they are legally obliged to prevent. Section 3 is a
preventive provision casting no right on the
organizers, but only duties and obligations.
Section 3, as already indicated, confers
corresponding rights on the animals as against
the persons in-charge or care, as well as AWBI,
to ensure their well-being and be not inflicted
with any unnecessary pain or suffering. Jallikattu
or Bullock-cart race, from the point of the
animals, is not an event ensuring their well-being
or an event meant to prevent the infliction of
unnecessary pain or suffering, on the contrary, it
is an event against their well-being and causes
unnecessary pain and suffering on them. Hence,
the two limbs of Section 3 of PCA Act have been
violated while conducting Jallikattu and Bullockcart race.
beating, kicking, over-driving, over-loading,

tortures, pain and suffering etc. Human life, we
often say, is not like animal existence, a view
having anthropocentric bias, forgetting the fact
that animals have also got intrinsic worth and
value. Section 3 of the PCA Act has
acknowledged those rights and the said section
along with Section 11 cast a duty on persons
having charge or care of animals to take
reasonable measures to ensure wellbeing of the
animals and to prevent infliction of unnecessary
pain and suffering.
10. The aforesaid paragraphs clearly show that the

Jallikattu and other form of bulls race cause trouble,
pains and stress to the bulls and it is contrary to the
provisions of the Act. Be it be ingeminated that the
Court has adjudged the issue in the backdrop of Article
51(a)(g) and (h) of the Constitution of India. There can
be no shadow or trace of doubt that the Constitution of
India is an Organic and Compassionate Constitution.
9. In paragraph 42, the two-Judge Bench has

observed thus:-
11. Learned counsel for the applicant has drawn

our attention to paragraph 91 to show that there
was no prohibition or ban but to regulate the game. On
the contrary, Mr. Sundaram and Mr. Grover,
learned senior counsel, would submit that apposite
reading of paragraph 91 does not reflect so. We had
noted the said submission yesterday and we will be
dealing with the same at the time of final hearing.
12. Learned counsel for the applicant would
submit that certain arrangements have already
been made and responsible District Collectors
have been appointed to supervise Jallikattu, and
therefore, so the order of stay passed by this
Court should be vacated. The aforesaid
submission leaves us unimpressed, for the simon
pure reason, the two-Judge Bench of this Court,
as it appears, had discussed many facets with
regard to Jallikattu and expressed its opinion. The
arrangements made on the basis of the
Notification would not warrant alteration of our
order and, therefore, we are not inclined to vacate
the order of stay.
13. Let the matter be listed on the date fixed. It is
open to the applicant to file the counter affidavit
within four weeks from today and assist the
Court.
42. Sections 3 and 11, as already indicated,

therefore, confer no right on the organisers of
Jallikattu or bullock-cart race, but only duties,
responsibilities and obligations, but confer
corresponding rights on animals. Sections 3,
11(1)(a) & (o) and other related provisions have
to be understood and read along with Article
51A(g) of the Constitution which cast
fundamental duties on every citizen to have
compassion for living creatures. Parliament,
by incorporating Article 51A(g), has again
reiterated and re-emphasised the fundamental
duties on human beings towards every living
creature, which evidently takes in bulls as well.
All living creatures have inherent dignity and a
right to live peacefully and right to protect their
well-being which encompasses protection from
ISC-9
What about castration? An animal-lover says: Keeping

bullocks for farming or draught is cruel, nothing romantic
about it. The sad thing is that only a few dozen calves
among thousands remain uncastrated. If it was carried out
on all, the species would die out. When these uncastrated
calves grow up, their lives are no better. They remain
confined away from the cows they are supposed to
service. In fact, some bulls may never get to see the cows
at all. This is so that breeding can be controlled.
(http://www.firstpost.com/living/if-we-love-them-so-muchwhy-do-we-treat-them-so-badly-2462426.html)
***
15
ISC-10
Union of India & Ors. v. Col. Chander Ballabh Sharma [IND-SC]
award will be given weightage for two selection

boards after the award. Additionally, the
petitioner also prayed for quashing of the
promotion policy dated 04.11.2011 in entirety as
arbitrary and discriminatory and further to
command the respondents therein to grant
weightage for gallantry award, namely, Sena
Medal (Gallantry) and Vir Chakra and consider
his case afresh for promotion to the post of
Brigadier. Be it stated, certain other reliefs were
sought but they are not necessary to be referred to
for adjudication of the present appeals.
3. The facts which are essential to be stated are
that the respondent was commissioned in the
Indian Army on 18.06.1983 and on 26.01.1986,
he was conferred the award, Sena Medal
(Gallantry) by the President of India, regard being
had to his exceptional devotion to duty, and
courage. He was awarded Vir Chakra on
26.01.1991 for his bravery and conduct during
the Indian Peace Keeping Force operation in Sri
Lanka. Thereafter, the question of promotion of
the respondent to the post of Lt. Colonel came for
consideration in May 1999 and he was promoted.
While he was holding the post of Lt. Colonel, his
case was considered for promotion to the rank of
Colonel by the Selection Board in July/August,
2001 and he was cleared for the said rank on
21.08.2002.
4. At this stage, it is apt to note that a policy had
been framed by the Army Headquarters with
approval of the Union of India in the year 1987. It
pertains to selection system. Clause 10 deals with
guidelines of assessment. For the purpose of
completeness, the said clause is reproduced below:
(2016) 1 LAW ISC-10

AT NEW DELHI
CIVIL APPELLATE JURISDICTION
Civil Appeals Nos. 29-30 of 2016
(Arising out of SLP (C) Nos. 5436-5437 of 2015)
Date of Judgment: Wednesday, 6 January 2016

Appellants
Respondent.
Versus
Col. Chander Ballabh Sharma
CORAM:
DIPAK MISRA, J.
SHIVA KIRTI SINGH, J.
***
Short Notes:
This decision clarifies that according to

changed policy of selection and promotion in the armed
forces, Gallantry awards can be given weightage for two
times only and not more; the decision of the High Court to
accord another promotion to the respondent on the basis of
pragmatic consideration of the policy was rejected and the
ratio of the earlier Supreme Court decision in Hardev Singh
v. Union of India & Anr., (2011) 10 SCC 121, was upheld
and relied on.
***
ORDER
DIPAK MISRA, J.
1. Leave granted in both the special leave
petitions.
2. The respondent knocked at the doors of the
Armed Forces Tribunal, Regional Bench at
Chandigarh (for short, 'the tribunal') in OA
No.1334 of 2012 for setting aside the order dated
13.12.2011 passed by the Ministry of Defence of
the Government of India dismissing the statutory
complaint preferred by him and further for
quashing para 9 of the Promotion Policy dated
04.11.2011 which postulates that the gallantry
Guidelines of Assessment
10. These directives are approved by the COAS for
each rank and are comprehensive by themselves.
The salient features of the guidelines are as
follows:(a) Selection is to be based on the overall profile of
the officer with special stress on the
performance in criteria command appointment.
(b) Due consideration is given to officer who show
consistency in overall performance and they
are given preference over late starters.

(2016) 1 LAW
16
(2016) 1 LAW
ISC-11
(c) The officer should have been consistently

recommended for to the next rank. Credit is
given to those officers who gave earned
positive recommendations for promotion in
their very first report in command.
(d) The officer should have done psc/ptsc/post
graduate courses and/or worked well in
Staff/ERE/Instructional
Appt.
However,
qualification of psc, ptsc or HC is neither as
substitute for mediocre performance in
command nor a license for promotion.
(e) Officers should have the potential for being
employed or being rotated in Staff,
instructional or ERE appointments.
(f) Character Qualities Disciplinary background and
(l) Assessment of the officer is based on the

comparative merit of the overall profile of the:
officers within his own batches. Needless to
say, the gracing of, the board is [to] be assessed
from the material placed before the board, and
not from personal knowledge, if any.
(m) In case of doubt, benefit must go to the
Service.
(n) Grading to be awarded by the selection Board
are placed at Annexure II. (emphasis by Court)
5. On a perusal of the aforesaid policy, it is clear as

day that the character qualities, disciplinary
background and decoration do form an important
input of overall profile of the officer and due
consideration is to be given while assessing border
line cases. That apart, the assessment of the officer
is based on comparative merit of the overall profile
of the officers within his own batches and the
grading is to be awarded by the selection board as
per Annexure-II. Annexure-II deals with grading to
be awarded for promotion to the selection ranks.
The case of the respondent was considered by the
concerned Selection Boards for the post of Lt.
Colonel in the year 1999 and also for the post of
Colonel in the year 2001. As per the finding
recorded by the tribunal, the respondent was given
weightage when his case was considered for
promotion to the rank of Lt. Colonel and Colonel
under the Value Judgment System as per the
postulates laid down in the 1987 policy.
6. When the matter stood thus, the competent
authority adopted and issued a new policy on
December 13, 2008 pertaining to conduct of
Selection Boards by quantification system.
Paragraph 4 of the said policy deals with
distribution of marks. It reads as follows :
decorations form an important input of the overall

profile of the officer and due consideration should
be given while assessing borderline cases.
(g) While assessing officers with disciplinary

background gravity and nature of the offence
and the service level at which the offence was
committed should be taken into consideration.
(h) Cases involving moral turpitude, gross
negligence, acts of cowardice, or un-officer
like behaviour which reflects on the moral fibre
of an officer will not be recommended for
promotion.
.
(j) Performance during war forms an important
fact of the overall record of the officer.
(k) Cautionary Notes by the COAS
(i) Element of magnanimity on the part of the
reporting officers leading, to sudden
elevation in figurative rating especially in
the case of officers who have been
superseded earlier or on the eve of the
selection or on the eve [of] the reporting
officer's retirement.
(ii) Moderation by RO,-SRO, NSRO
particularly in cases where officers have
been over or under-rated.
(iii) Disparity in recommendations for
promotion vis--vis the box grading, pen
picture
and
recommendations
for
employments.
(iv) Comparative merit of officers in Staff/ ERE
vis--vis an officer in command in the same
rank.
(v) Reports from NCC and ERE are given less
weightage as compared to the reports
earned from command and graded staff.
4. Distribution of Marks
Distribution of marks for various SBs are as given
below:
Type of CR
17
No. 3
SB
No. 2
SB
No. 1
SB
SSB
CR
89
90
91
92
Courses and
Honours &
Awards
Quantification
Total
95
95
95
95
ISC-12
Value
Judgment
Grand Total

5
100
100
100
100
policies especially the 2011 policy, regard being

had to the principle enshrined in para 4(c) of the
said policy.
11. On behalf of the present appellant, the said
stand was resisted on the foundation that since the
7. Paragraph 7 which deals with honours and

awards (H & A) is worth reproducing :-
respondent had been given the benefit of

awards/decorations twice in his service career, the
benefit cannot be extended forever and hence, the
marking system which has been incorporated into
subsequent policies cannot be extended to the officials
who had been conferred the benefit under the old
policy.
(emphasis ours)
7. Gallantry awards will be given weightage for

two SBs after the award. Awards for distinguished
services will be considered for one SB after the
award. Maximum of two marks can be awarded to
any officer for H&O.
8. The value judgment marks is covered under

paragraph 9. It reads as follows:
12. The High Court, hearing the learned counsel for

the parties, opined thus:-
9. Five percent marks have been set aside for

value judgment by the Selection Board for
assessing parameters that cannot be quantified.
We find that literal interpretation of para 9 of

policy dated 04.01.2011 may support the stand of
the respondents but keeping in view the fact that
number of Selection Boards have been reduced
than what was prevailing in the year 1987, the
policy has to be applied to all in a pragmatic
manner. The two Selection Boards which are
required to be taken into consideration would be
the one which are in terms of the 2011 policy i.e.
for selection to the post of Colonel and Brigadier
and not the Selection Board from the rank of Major
to Lieutenant Colonel. The reference to Selection
Boards in policy dated 04.01.2011 alone are
required to be taken into consideration than the
Selection Boards which were constituted in terms
of policy dated 06.05.1987. If the Selection Boards
constituted prior to policy dated 04.01.2011 are
taken into consideration, the policy circulated
would lead to unfair results. It would have been
different matter, if the number of selection Boards
had remained same, the restrictions could be
applied to all categories for selection. But where
the Selection Boards have been reduced, then the
Selection Boards now constituted would be
relevant to consider the suitability of the officers
for empanelment.
9. After this policy came into force, the case of

the respondent was considered by the competent
Selection Board for the post of Brigadier in
October 2009 and he was not selected. Thereafter,
his case was reconsidered in September 2010,
April 2011 and September 2011 but he was again
not successful. The said non-selection constrained
the respondent to file a complaint before the
authority which did not yield any positive result.
Therefore, the Original Application was preferred
before the tribunal; and it was contended before
the tribunal that he was entitled to be granted the
benefits of the decorations, namely, Sena Medal
(Gallantry) and Vir Chakra on the basis of the
quantification method and had it been so done, he
would have been promoted. That was the singular
contention which was highlighted before the
tribunal. The tribunal, analysing the 1987 policy and
the subsequent policies, namely, 2008 and 2011 policies,
came to hold that the respondent was not entitled to the
benefit.
10. Aggrieved by the aforesaid judgment and

order passed by the tribunal, the respondent
preferred CWP No. 6487 of 2014 before the High
Court of Punjab and Haryana at Chandigarh. It
was urged before the High Court that when a new
comprehensive policy had come into vogue on
04.11.2011 superseding the earlier policy dated
6.5.1987 and 13.12.2008, his case was required to
be considered on the basis of the subsequent
(2016) 1 LAW
13. Being of this view, the High Court set aside the
order of the tribunal and directed the respondents
therein to consider the selection of the petitioner
therein in empanelment of selection to the post of
Brigadier in terms of the policy. After the said
decision was rendered, an application for review
was filed forming the subject matter of RA No. 440
of 2014 (O & M) which was dismissed on the
ground that no case was made out for review. The
(Go to p. 59)
18
(2016) 1 LAW
Case on criminal immunity in relation to bullfighting [FR-CC]
(2016) 1 LAW F-1 (FR-CC)
Having regard to Ordinance no. 58-1067 of 7

November 1958 as amended, concerning the
basic law on the Constitutional Council;
Having regard to the Criminal Code;
Having regard to the Regulation of 4 February
2010 on the procedure applicable before the
Constitutional Council with respect to
applications for priority preliminary rulings on
the issue of constitutionality;
Having regard to the observations on behalf of
the applicant associations by ric Verrile Esq.,
Attorney at the Paris Bar, registered on 11 and 27
July 2012;
Having regard to the observations of the Prime
Minister, registered on 13 and 30 July 2012;
Having regard to the observations in intervention
on behalf of the associations "Observatoire
national des cultures taurines" ["National
Monitoring Centre for Bull Culture"] and "Union
des villes taurines de France" ["French Union of
Bullfighting Towns"] by the SCP Piwnica et
Molini, Attorney at the Conseil d'tat and the
Cour de cassation, registered on 12 and 27 July
2012;
Having regard to the request for recusation
submitted by the applicants, registered on 11 July
2012;
Having regard to the documents produced and
appended to the case files;
Having heard Verrile Esq. on behalf of the
applicant associations, Emmanuel Piwnica Esq.
for the intervener associations and Mr Xavier
Pottier, appointed by the Prime Minister, at the
public hearing on 11 September 2012;
Having heard the Rapporteur;
Considering that Article L. 521-1 of the Criminal
Code provides:
CONSTITUTIONAL COUNCIL
OF FRANCE AT PARIS
Decision no. 2012-271 QPC
Friday, 21 September 2012

Citation: (2016) 1 LAW F-1
***
NOTES: This is a landmark decision of the Constitutional
Council of France, the highest court of that country, on bull
fights (that also applies to cockfights) which are prevalent in
certain regions of that country and in which hundreds of bulls
are killed even, finding the conduct of those constitutional if
an uninterrupted local tradition exists in that regard. It is very
much regretted that whereas the Constitutional Courts in
France and other developed countries show so much regard
and significance to the wisdom of the legislatures which
exempted uninterrupted local traditions, our Apex Court
ignores all such healthy judicial decisions and strikes down a
purposive law which legalizes Jallikattu, a sport of local
tradition uninterrupted since centuries, in which, by the way, no
animals are ever killed.
***
Decision no. 2012-271 QPC of 21 SEPTEMBER 2012
Association Comit radicalement anti-corrida Europe

[the association Committee Radically Against Bullfighting
Europe] and another [Criminal immunity in relation to
bullfighting]
On 21 June 2012 the Constitutional Council, in

the conditions provided for by Article 61-1 of the
Constitution, received an application for a
priority preliminary ruling on the issue of
constitutionality raised by the Conseil d'tat
(decision no. 357798 of 20 June 2012) on behalf
of the association "Comit radicalement anticorrida Europe" and the association "Droits des
animaux" ["Animal Rights"], raising the
conformity of Article 521 of the Criminal Code
with the rights and freedoms guaranteed by the
Constitution.
THE CONSTITUTIONAL COUNCIL,
Having regard to the Constitution;
F-1
"The unnecessary infliction, in public or

otherwise, of serious maltreatment, including
sexual maltreatment, towards or the commission
of an act of cruelty on any domestic or tame
animal, or any animal held in captivity, is
punished by two years' imprisonment and a fine
of 30,000.
Courtesy: Constitutional Council of France Conseil

constitutionnel 2, rue de Montpensier 75001 PARIS;
http://www.conseil-constitutionnel.fr/; emphases in bold
ours - IMS.
19
F-2
of the Criminal Code, the provisions of the

seventh subparagraph of that Article breach the
principle of equality before the law;
3. Considering that the application for a priority
preliminary ruling on the issue of constitutionality
concerns the first phrase of the seventh subparagraph of Article 521-1 of the Criminal Code;
4. Considering that Article 6 of the Declaration of
the Rights of Man and the Citizen of 1789
provides that: "The law... must be the same for all,
whether it protects or punishes"; that the principle of
"In the event that the owner or the animal is

convicted, or if the owner is unknown, the court
shall make a decision on the future arrangements
for the animal, irrespective of whether the issue
was raised during the judicial proceedings. The
court may order the confiscation of the animal
and stipulate that it be transferred to an animal
protection foundation or association of
recognised or asserted public interest, which
shall be free to decide on arrangements for the
animal.
"Natural persons who have been found guilty of
the offences provided for under this Article may
also be subject to the complementary penalties of
a definitive or provisional prohibition on the
keeping of an animal or the exercise of
professional or social activity for a period of up
to five years where the facilities with which that
activity is performed were knowingly used in
order to prepare or commit the offence.
However, this prohibition shall not apply to
service in elected office or as a trade union
representative.
"Legal persons which have been found to be
criminally responsible in accordance with Article
121-2 of the Criminal Code shall be subject to
the following penalties:
" a fine in accordance with the procedure laid
down in Article 131-38 of the Criminal Code;
" the penalties provided for under paragraphs 2,
4, 7, 8 and 9 of Article 131-39 of the Criminal
Code.
"The provisions of the present article are not
applicable to bullfights where an uninterrupted
local tradition can be shown. Nor do they apply
to cockfights in localities where an uninterrupted
tradition can be established.
"The penalties set out in the first paragraph apply
to the creation of any new centre for holding
cockfights.
"The same penalties also apply to the
abandonment of a domestic or tamed animal, or
of an animal held in captivity, with the exception
of animals used for repopulation purposes";
equality does not prevent the legislator from resolving

different situations in different ways, or from
derogating from equality on the grounds of the general
interest, provided that in both cases the resulting
difference in treatment is directly related to the

objective of the law establishing it; that pursuant
to Article 34 of the Constitution, as well as the
principle of the legality of criminal offences and
punishments according to Article 8 of the 1789
Declaration, the legislator is under the obligation
to determine the scope of the criminal law and to
define criminal offences and other offences in
sufficiently clear and precise terms in order to
exclude arbitrariness;
5. Considering that the first subparagraph of Article
521-1 of the Criminal Code punishes in particular
serious maltreatment and acts of cruelty against any
domestic animal or any animal held in captivity; that
the first phrase of the seventh subparagraph of this
Article precludes the application of these provisions to
bullfights; that this exemption is however limited to
situations in which an uninterrupted local tradition may
be invoked; that in creating a limited exemption from
criminal responsibility, the legislature intended that the
provisions of the first subparagraph of Article 521-1 of
the Criminal Code would not have the effect of calling
into question certain traditional practices which do not
violate any right guaranteed under the Constitution;
that the exemption from criminal responsibility
established by the contested provisions only applies in
those parts of the national territory where the existence
of such a tradition on an uninterrupted basis has been
ascertained and solely for the acts associated with that
tradition; that accordingly, the difference in
2. Considering that, according to the applicant

associations, in creating an exception for
bullfights from the criminal punishment provided
for under the first subparagraph of Article 521-1
(2016) 1 LAW
treatment established by the legislature between

actions of the same nature carried out in different
geographical areas is directly related to the object
20
(2016) 1 LAW
F-3
of the law providing for that difference; that

moreover, whilst it is for the competent courts to assess
whether
factual
circumstances
constitute
an
uninterrupted local tradition, this concept, which is
not equivocal in nature, is sufficiently precise in
order to guarantee against the risk of arbitrary action;
6. Considering that it follows from the above that

the objection alleging the violation of the
principle of equality must be rejected; that the
first phrase of the seventh subparagraph of
Article 521-1 of the Criminal Code, which does
not violate any right or freedom guaranteed by
the Constitution, must be ruled constitutional,
HELD:
Article 1. The first phrase of the seventh

subparagraph of Article 521-1 of the Criminal Code is
constitutional.
Article 2. This decision shall be published in

the Journal Officiel of the French Republic and
notified in the conditions provided for under Article
23-11 of the Ordinance of 7 November 1958 referred
to hereinabove.
Deliberated by the Constitutional Council in its
session of 20 September 2012, sat on by: Mr JeanLouis DEBR, President, Mr Jacques BARROT, Mrs
Claire BAZY MALAURIE, Mr Guy CANIVET, Mr
Michel CHARASSE, Mr Renaud DENOIX de SAINT
MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr
Hubert HAENEL and Mr Pierre STEINMETZ.
Announced on 21 September 2012.

*****
21
F-4
Case of Mr Ahmed S. on removal from post of Mayor [FR-CC]
(2016) 1 LAW F-4 (FR-CC)
Having regard to the documents produced and

appended to the case files;
Having heard Mr Xavier Pottier, appointed by the
Prime Minister, at the public hearing on 13
December 2011;
Having heard the Rapporteur;
Considering that Article L. 2122-16 of the
General Local Authorities Code provides:
CONSTITUTIONAL COUNCIL
OF FRANCE AT PARIS
Decision no. 2011-210 QPC
Friday, 13 January 2012

Case of Mr AHMED S.
[Removal from office as a mayor]
"The mayor or an assistant mayor may be suspended by

ministerial order supported by reasons for a term not
exceeding one month, provided that they have been
***
heard or invited to provide explanations in

writing regarding the facts alleged against them.
They may only be removed from office by motivated
decree adopted by the Council of Ministers.
"Judicial challenges to the suspension order or
decree of removal from office may be submitted
through a lawyer.
"Removal from office shall entail automatic
ineligibility to hold the office of mayor or
assistant for a term of one year starting from the
decree of removal from office unless general
municipal elections are held sooner";
On 24 October 2011 the Constitutional

Council, in the conditions provided for by Article
61-1 of the Constitution, received an application
for a priority preliminary ruling on the issue of
constitutionality raised by the Conseil d'tat
(decision no. 348771 of 24.10.11) on behalf of
Mr Ahmed S., raising the conformity of Article
L. 2122 16 of the General Local Authorities Code
with the rights and freedoms guaranteed by the
Constitution.
THE CONSTITUTIONAL COUNCIL,
2. Considering that, according to the applicant, on

the one hand in not specifying the grounds on
which a decision to suspend or remove a mayor
from office may be based, these provisions
violate Article 8 of the 1789 Declaration of the
Rights of Man and the Citizen; that on the other
hand in permitting this disciplinary power to
apply without distinction having regard to the
exercise of decentralised powers and those
devolved to the executive organs of the
municipalities, these provisions violate the
principle of the freedom of administration of
local authorities guaranteed under Article 72 of
the Constitution;
Having regard to the Constitution;

Having regard to Ordinance no. 58-1067 of
7 November 1958 as amended, concerning the
basic law on the Constitutional Council;
Having regard to the General Local Authorities
Code;
Having regard to the Regulation of 4 February
2010 on the procedure applicable before the
Constitutional Council with respect to
applications for priority preliminary rulings on
the issue of constitutionality;
Having regard to the observations made on behalf
of the applicant by SCP Ortscheidt, Attorney at
the Conseil d'tat and the Cour de Cassation,
registered on 10 November 2011;
Having regard to the observations of the Prime
Minister, registered on 15 November 2011;
WITH RESPECT TO THE CHALLENGE ALLEGING

THE VIOLATION OF THE CONSTITUTIONAL
REQUIREMENTS APPLICABLE TO DISCIPLINARY
PROCEEDINGS AND PENALTIES:
3. Considering that Article 8 of the 1789

Declaration provides: "The law shall provide
for such punishments only as are strictly and
obviously necessary, and no one shall suffer
punishment except it be legally inflicted in virtue
Courtesy: Constitutional Council of France Conseil

constitutionnel 2, rue de Montpensier 75001 PARIS;
http://www.conseil-constitutionnel.fr/; emphases in bold
ours - IMS.
(2016) 1 LAW
22
(2016) 1 LAW
Case of Mr Ahmed S. on removal from post of Mayor [FR-CC]
F-5
8. Considering that the contested provisions do

not violate any other right or freedom guaranteed
by the Constitution;
of a law passed and promulgated before the

commission of the offence"; that the principles
thereby enunciated relate not only to the penalties
issued by the criminal courts but also extend to
any penalty with the nature of a punishment;
4. Considering that when applied outwith the
criminal law, the requirement to define
punishable breaches is satisfied, as a matter of
administrative law, by reference to the
obligations to which the holder of the public
office is subject according to law and regulations;
5. Considering that, according to the settled case
law of the Conseil d'tat, the contested provisions
HELD:
Article 1. Article L. 2122-16 of the General Local

Authorities Code is constitutional.
Article 2. This decision shall be published in
the Journal Officiel of the French Republic and
notified in the conditions provided for under
Article 2311 of the Ordinance of 7 November
1958 referred to hereinabove.
Deliberated by the Constitutional Council in its
session on 12 January 2012, sat on by: Mr Jean-Louis
DEBR, President, Mr Jacques BARROT, Mrs Claire
BAZY MALAURIE, Mr. Guy CANIVET, Mr. Michel
CHARASSE, Mr. Renaud DENOIX de SAINT
MARC, Mrs Jacqueline de GUILLENCHMIDT, Mr.
Hubert HAENEL and Mr. Pierre STEINMETZ.
have the purpose of punishing serious and repeated

breaches of the obligations applicable to the office of
mayor and accordingly putting an end to conduct, the
particular seriousness of which has been established;
that under these circumstances, whilst the contested
provisions establish a penalty having the characteristics
of punishment, the lack of any express reference to the
obligations to which mayors are subject by virtue of
their functions does not violate the principle that
offences must be established by law;
Announced on 13 January 2012.
*****
URGENT APPEAL
WITH RESPECT TO THE CHALLENGE ALLEGING

THE VIOLATION OF THE PRINCIPLE OF FREEDOM
OF ADMINISTRATION OF THE LOCAL AUTHORITIES:
We regret to inform all our readers, friends and

well-wishers that it is becoming extremely
difficult to continue publication of this journal
and we are incurring heavy losses annually; as
such we once again request them to liberally
donate/advertise/ cause friends and institutions to
subscribe in large numbers to our journal. We
also request that scholarly articles on any aspect
of law and society, preferably with comparative
international study, be sent to us. Life subscription
6. Considering that, whereas according to the

third subparagraph of Article 72 of the
Constitution, the local authorities "shall be selfgoverning through elected councils", each of
them must to so "in the conditions provided for
by statute"; that Article 34 reserves to Parliament
the ability to determine the fundamental
principles governing the free administration of
local authorities;
7. Considering that the contested provisions
enable sanctions to be adopted against the mayor
who has acted in his capacity as an official of the
State or as an executive officer of the
municipality; that the imposition of sanctions
for this journal: Rs. 12,000/- and the annual subscription

for 2016: Rs. 1200/-. Any annual subscription will count
for one volume i.e. January to December of the year, and
back-numbers of the year will be supplied to the
subscriber.
- I.M. Sharma, Editor.
ADVERTISEMENT TARIFF:
Full inner cover page

:
Rs. 12,000/Ordinary full page
:
Rs. 10000/Cheques/DDs to be sent in favour of:
LAW ANIMATED WORLD,
punishing breaches by mayors of the obligations

accruing to their duties does not in itself violate the
principle of freedom of administration of local
authorities; that an order of suspension or removal
from office, which has effects for all functions of the
mayor, is adopted according to law; that accordingly
the contested provisions do not violate the principle of
freedom of administration of local authorities;
H. No. 6-3-243/156, M.S. Makta,

Opp. Raj Bhavan, HYDERABAD - 500 082.
Ph: 040 - 23300284; E-mail: mani.bal44@gmail.com
(for outstation cheques please add Rs. 75/- bank charges)
23
F-6
Case on Catalonian Autonomy impairing Spainsh State powers [SPN-CC]
NOTES: This is an important decision of the Constitutional

Court of Spain, the highest court of that country, on Catalonian
autonomy. The Court declared unconstitutional those provisions
of a law made by the Catalonian Parliament which infringe the
[Spanish] States exclusive competence in international relations
and the Ombudsmans exclusive competence is also breached, in
relation to the General State Administration in Catalonia, but per
doctrine of severance, also made clear that the constitutional
impropriety incurred by the legislator of the Autonomous
Community when designating a national prevention mechanism
does not inevitably render unconstitutional all of Title VIII of Law
24/2009 made by the Catalonian Parliament.
Two sets of constitutional challenges were categorized in this
case by the Constitutional Court. The challenged articles divided
into two groups. The first, of Articles 3.1, 26.b) (the local
Administration) and c) (or the local Administration) and
Article 78 which, according to the claim, are directly related to the
alleged unconstitutionality claimed by the Ombudsman in relation
to Article 78 of Organic Law 6/2006, of July 19, that reforms the
Statute of Autonomy of Catalonia (EAC), in action of
unconstitutionality 8675/2006. The second group would consist of
the rest of the articles challenged: Article 1.b) and the entire Title
VIII (Articles 68 to 77, both inclusive), regulating the attribution
of the status of the Sndic de Greuges as Catalonian Authority for
the Prevention of Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment.
[see p. F-13]
The Court opined that the theory that, once the mechanism is
designated by an Autonomous Community, it is the State, as an
international subject, which should communicate the
designation to the competent United Nations body, mistakenly
presumes that the Autonomous Community is able to impose
international obligations on the State there are international law
matters reserved to the State, which limit any activity with
international projection that Autonomous Communities may
carry out; one of these limits is that the activity of Autonomous
Communities cannot generate the States liability vis--vis foreign
States or inter or supra-national organizations [see p. F-17]
As such the Court declared the unconstitutionality of Articles
1.b), 68.1 and 2, 71.d, 74 and 75 of Catalonian Parliament Law
24/2009, insofar as: i) Articles 1.b) and 68.1 attribute to the Sindic
de Greuges the status as a Catalonian authority under the
Optional Protocol of the United Nations Convention against
torture; ii) Articles 68.2 and 71.d) entrust the Sndic de Greuges
with competences and duties derived from the said Protocol; iii)
Article 69.2 aimed at articulating collaboration with the State, in
order for the Sndic de Greuges to be able to fulfil the duties
inherent thereto as a Catalonian Authority, in State-owned
institutions where persons are deprived of freedom, iv) Article 74
setting the obligation to provide a monographic report on any
actions taken as a Catalonian authority ; and, finally, v) Article
75 designating the Sndic de Greuges as the entity collaborating
with the Deputy Committee for the Prevention of Torture etc.
which, per Article 2 of the Protocol, carries out its task further to
the United Nations Charter and holds relations with the Party
States. The regulation in these provisions infringes the States
exclusive competence in international relations, foreseen in Article
149.1.3 CE; further, in case of Article 69.2, the Ombudsmans
exclusive competence, regarding General State Administration in
Catalonia, is also breached pursuant to Article 54 CE. However,
Articles 3.1; 26.b) (local Administration) and c) (or the local
Administration) and Article 78, as also Articles 71.a), b) and c),
72.1 and 73.1, [interpreted harmoniously], are declared not
unconstitutional.
[See F-18 to F-20]
(2016) 1 LAW F-6 (SPN-CC)
CONSTITUTIONAL COURT
OF SPAIN AT MADRID
Tribunal Constitucional de Espaa
Judgment No. 46/2015
Friday, 5 March 2015

***
Courtesy: Constitutional Court of Spain, Domenico Scarlatti,

6, Madrid - 28003, http://www.tribunalconstitucional.es/;
The Spanish Constitutional Court consists of twelve
members, who act as Constitutional Court Judges. The
King of Spain appoints them by Royal Decree All
Spanish citizens who are Judges or State Prosecutors,
University Professors, Civil Servants or Lawyers, with an
acknowledged reputation in the field of law and more
than fifteen years professional experience may qualify
for this office. Of the twelve members [to be] appointed
by H.M the King of Spain, four are proposed by the
Congress on the basis of a qualified majority of three
fifths of its members; four are put forward by the Senate,
with the same majority; two by the Government; and two
by the General Council of the Judiciary [our Apex Court
needs to note this without fail]. Judges of the Court are
chosen by constitutional mandate amongst renowned
legal experts, performing their duties with independence.
They may not be removed from office; they are appointed
for a period of nine years and once the term elapses they
may not be re-elected for a subsequent term - without the
possibility of immediate re-election, unless they have
held office for less than three years -; [the law fixed no
age limit]. to ensure continuity of the Courts operations,
it is renewed by thirds every three years. The Plenary
Meeting of the Court elects a President from amongst its
members by ballot; he is appointed by the King for a
three-year term, and may be re-elected just once. This
same procedure is also used to elect the Vice-President of
the Court, likewise for a three-year term. The Plenary
Meeting of the Constitutional Court comprises twelve
senior judges and is chaired by the Court President. He is
in charge of all proceedings within the Constitutional
Courts jurisdiction, although appeals for the protection
of constitutional rights (recursos de amparo) are only
examined under reach-down jurisdiction, given that these
remedies are in principle entrusted to the Divisions.
There are two chambers in the Constitutional Court; the
First Chamber is chaired by the Court President, whereas
the Vice-President presides over the Second Chamber.
Emphases in bold ours - IMS.
(2016) 1 LAW
***
24
(2016) 1 LAW
The Constitutional Court, in full bench,

composed of the Honour Judges Mr. Francisco
Prez de los Cobos Orihuel (President), Ms.
Adela Asua Batarrita, Mr. Luis Ignacio Ortega
lvarez, Ms. Encarnacin Roca Tras, Mr.
Andrs Ollero Tassara, Mr. Fernando Valds DalR, Mr. Juan Jos Gonzlez Rivas, Mr. Santiago
Martnez-Vares Garca, Mr. Juan Antonio Xiol
Ros, Mr. Pedro Jos Gonzlez-Trevijano
Snchez, Mr. Ricardo Enrquez Sancho and Mr.
Antonio Narvez Rodrguez, has pronounced
F-7
[in
Spanish, Estatuto
de
Autonoma
de
Catalua (EAC)]. The claim reiterates the
grounds of the unconstitutionality claim filed

by the Ombudsman against section two of
Article 78.1 EAC, developed in Article 3.1 of
the Law 24/2009, due to enshrining the
exclusive supervision of the Sndic de
Greuges, excluding the Ombudsman, in
contradiction with Article 54 of the Spanish
Constitution (in Spanish, Constitucin Espaola:
CE) with respect to the supervision powers of
the Ombudsman. It also contradicts Article 14
CE, due to an unjustified unequal situation
amongst the holders of fundamental rights and
freedoms, depending [on] the Administration in
charge of the activity affecting the rights.
b) Article 26 of Law 24/2009 foresees that the
Sndic de Greuges will supervise the activity of
b) The local Administration and c) Any
public or private bodies related to or dependent
on the local Administration, including in
any case autonomous bodies, public companies,
agencies, corporations, civil companies,
commercial companies, consortiums, public
and private foundations, in the terms
established in Article 78.1 of the Statute. The
unconditional references made to the local
Administration in points b and c of this
Article are also claimed to be unconstitutional,
in similar terms to the Ombudsman claim
against the final section of Article 78.1 EAC,
implemented by Article 26 of Law 24/2009.
For the same reasons as the provision of the
Statute of Autonomy, the unconstitutionality
should be declared of the provisions of Article
26 of Law 24/2009 referring to the local
Administration
and
or
the
local
Administration, which cover the entire
activity of the local Administration and its
related bodies, thereby contradicting Articles
54 and 137 CE, overlooking the jurisdiction of
the Ombudsman and the case-law of the
Constitutional Court relating the supervision
powers of the parliamentary commissioners
and the Ombudsman over the local
Administrations.
IN THE NAME OF THE KING
the following
JUDGMENT
In the action of unconstitutionality number
2502/2010, lodged by the Ombudsman against
different provisions of the Law of the Catalonian
Parliament 24/2009, of 23 December, of
the Sndic de Greuges. The Government of Spain
has appeared as party to the suit, without
submitting any pleadings, represented by the
State Attorney. The Catalonian Parliament and
the Government of Catalonia (Generalitat) have
been parties and submitted their pleadings. The
Judgment has been drawn up by His Honour
Santiago Martnez-Vares Garca, who expresses
the opinion of the Court.
I. BACKGROUND FACTS
1. In a writ presented on March 24, 2010, the

Ombudsman
lodged
an
action
of
unconstitutionality against Articles 1.b), 3.1,
26.b) and c) and 78, and also the full Title VII,
Articles 68 to 77 both inclusive, of the Law of the
Catalonian Parliament 24/2009, of December 23,
of the Sndic de Greuges. According to the action
of unconstitutionality, the challenged provisions
allegedly incur the following constitutional
infringements:
a) Article 3.1 of Law 24/2009 confers the Sndic
de Greuges the supervision of the activity
conducted by the Administrations, bodies,
companies and persons referred in Article 78.1
of the Organic Law 6/2006, of July 19, to
reform the Statute of Autonomy of Catalonia
25
F-8
c) Article 78 of Law 24/2009, under the title

Cooperation with the Ombudsman, develops
Article 78.2 EAC. It is been contested because
it overlooks the competences of the Spanish
Parliament and its High Commissioner to
regulate all relations between the Ombudsman
and autonomous parliamentary commissioners,
thereby infringing Articles 54 and 66.2 CE.
Here too, the Ombudsman refers to the
grounds of its appeal against the Statute of
Autonomy, arguing that Article 78.2 EAC
Spain on 3 March, 2006. With Law 24/2009, of

23 December, the Catalonian Parliament intends
to do the same with the Sndic de Greuges. This
decision is unconstitutional, not only based on the
literal wording of Article 149.1.3 CE but also based
on the Constitutional Courts interpretation (STC
165/1994, of 26 May). Although the Preamble

of Law 24/2009 tries to justify the Sndic de
Greugess appointment with the provisions of
Article 196.4 EAC, which confers the
Generalitat the adoption of the necessary
measures within the scope of its jurisdiction
to execute the obligations derived from
international treaties and conventions, it is also
right that jurisdiction of the Autonomous
infringes Article 54 CE because this provision cannot

be implemented by an organic law that reforms a
Statute of Autonomy, and Article 14 CE. This
claim adds that the regional Law is not entitled
either to regulate collaboration between the Sndic de
Greuges and the Ombudsman.
Community do not include the right to limit the

State to constitute this mechanism. The Spanish
Parliament is empowered, and has decided to
establish a single prevention mechanism the
Ombudsman , which is competent to supervise all
Administrations including the Generalitat in
respect of the control of places where persons are
deprived of their freedom within the scope of the
Protocol.
Furthermore, the claim alleges unawareness of

the provisions established in Article 12 of
Organic Law 31/1981, of April 6, of the
Ombudsman, to which Article 54 CE,
paragraph one, refers. Article 12 entitles the
Ombudsman to supervise by himself the activity of
the Autonomous Community; paragraph two
2. By a decision dated on April 14th, 2010, the
imposes on autonomous parliamentary

commissioners to jointly act with the
Ombudsman, and foresees the Ombudsmans
right of initiative to require the commissioners
cooperation.
Constitutional Court, in full bench, agreed to grant

leave to proceed to the action of unconstitutionality,
serving notice of the claim, pursuant to Article 34

of the Organic Law of the Constitutional Court
(in Spanish, Ley Orgnica del Tribunal
Constitucional: LOTC), to Congress and to the
Senate, through the president of each chamber,
and to the Government, through the Ministry of
Justice, as well as to the Catalonian Government
and Parliament, through the president of each
body, in order to appear as parties to the suit
within 15 days and submit their pleading,
publishing the filing of the appeal in the Official
State Gazette and Diari Oficial de la
Generalitat de Catalunya.
3. By a writ registered on April 28th, 2010, the
Senate appeared as party in the proceedings and
offered its cooperation for the purposes of Article
88.1 LOTC. In another writ registered on April
29th, 2010, the Congress of Deputies appeared as
party in the suit and also offered its cooperation
for the purposes of Article 88.1 LOTC.
d) Article 1.b) of Law 24/2009 names the Sndic de

Greuges as the Catalonian authority for the
prevention of torture and other cruel, inhuman or
degrading treatment or punishment, within the
scope foreseen in Articles 3.1 and 69. Title

VIII, entitled Prevention of Torture and other
Cruel, Inhuman or Degrading Treatment or
Punishment (Articles 68 to 77), regulates this
status. These dispositions are challenged on the
grounds of affecting the States exclusive jurisdiction
in international relations, recognised in Article
149.1.3 CE. The Spanish Parliament, through
Organic Law 1/2009, of 3 November, appointed the
Ombudsman as a national mechanism to prevent
torture, in connection with the Optional Protocol of
the United Nations Convention against torture and
other cruel, inhuman or degrading treatment or
punishment, adopted by the United Nations General
Assembly on 18 December, 2002, and ratified by
(2016) 1 LAW
26
(2016) 1 LAW
4. On April 27th, 2010, the State Attorney, on

behalf of the Government, filed a writ appearing
as party in the appeal, requiring an extension of
the term to make pleadings. In a decision dated
on April 29th, 2010, the Government appeared as
party in the suit and the term was extended for
eight more days.
5. The Catalonian Parliament appeared as party in
the proceedings by a writ presented on April 30th,
2010, and requested an extension to submit its
pleadings.
6. The Catalonian Generalitat appeared as party
in the suit in a writ presented on May 6th, 2010.
Likewise an extension of the term was requested,
to submit its pleadings till the maximum legal
term allowed.
7. By a decision dated on May 7th, 2010, the
writs of the Catalonian Parliament and Generalitat
were included in the proceedings; they appeared
as parties to the suit and the timeframe granted by
the decision of on April 14 was extended for
eight more days.
8. The State Attorney, in a writ dated on May 12th,
2010, reported that the deputy committee for
regulatory monitoring, prevention and resolution
of conflicts, belonging to the Bilateral
Generalitat-State Committee, had decided to
begin negotiations in order to: settle the
differences raised in relation to Article 1, Title
VIII and other provisions of Law 24/2009; a
working group in order to propose a solution to
the deputy committee was designated; and the
resolution was notified to the Constitutional
Court in accordance with Article 33.2 LOTC. The
State Attorney declared that he did not will to
claim pleadings, but he demanded to be notified
about the decision when the process finished.
9. The Government of the Catalonian Generalitat
completed the step in a writ presented to this
Court on May 21, 2010, submitting the following
pleadings:
a) In relation to Article 3.1 of Law 24/2009,
the Generalitat also reiterated its pleadings to
the appeal brought by the Ombudsman against
Article 78.1 EAC, claiming that the Ombudsman
F-9
cannot be excluded from the principle of autonomy

of Article 2 CE; consequently, its duty to control
the Administration does not extend beyond the

territorial organization of the State and the
distribution of powers, specifically those
conferred to the Sndic de Greuges. In any
case, both the Statute and current law foresee
relationship and collaboration mechanisms enabling
the Ombudsman to be informed of any alleged
violation of fundamental rights, before bringing the
Amparo appeals before the Constitutional Court.
b) The sections the local Administration and

or the local Administration, respectively in
b) and c) of Article 26 of Law 24/2009, are
totally constitutional. The powers of
supervision held by the Sndic de Greuges are
recognised in Article 78 EAC, where
paragraph two also recognises that the
Ombudsman holds power in Catalonia to control the
State Administration, as well as duties to uphold
citizen rights, because he is empowered to file
Amparo appeals and actions of unconstitutionality.
This recognition explains why collaboration

needed to be foreseen between the
Ombudsman and the Sndic de Greuges.
Furthermore, to foresee that the Ombudsman
is able to supervise the activity of the local
Administration in Catalonia does not suggest
that this supervision is exclusive.
The constitutional recognition of local self-government
becomes an institutional guarantee of the basic selfgovernment of territorial local bodies, but this
institutional guarantee does not prevent the local
bodies from being externally controlled, by
the Sindic de Greuges amongst others. This
supervision does not limit the local selfgovernment, as it has no direct and immediate
effect on the resolutions of municipal
Administrations,
which
the Sndic
de
Greuges cannot change. Finally, the holders of
constitutional rights and freedoms and other
rights recognised in the Statute of Autonomy
should not be deprived of the Sndic de
Greugess guarantee intervention before the
local Administration.
c) Article 78 of Law 24/2009 does not impose a
coordination procedure between the Ombudsman
27
F-10
and the Sndic de Greuges, but instead establishes a

principle based on constitutional case-law: the need
for collaboration and coordination. Article 78 of
a) The supervision exercised by the Sndic de

Greuges on an exclusive basis over the
Generalitats Administration
is
not
contrary to Articles 54 and 14 of the
Constitution. According to the principle
of autonomy foreseen in Article 2 CE and
the exclusive jurisdiction of the
Generalitat over its self-government
institutions, the autonomous Ombudsman
should have exclusively the control over
the Administration that depends on the
autonomous Government. The reference
made to the Administration in Article
54 CE does not specify which bodies are
mentioned, and if the Constitution had
intended that it cover one or all Public
Administrations it would have said so, or
would have used the word in plural.
The Statute of Autonomy is a special Organic
Law 24/2009 respects the provisions of the

Statute of Autonomy, Constitution and
Organic Law 3/1981, of 6 April, of the
Ombudsman, recognising that collaboration
and coordination are necessary between the
Ombudsman and the Sndic de Greuges.
d) The appointment of the Sndic de Greuges as a
national mechanism to prevent torture, Article 1.b),
and its regulation in Title VIII of Law 24/2009,
represent the execution of the Protocol in matters
conferred to the Generalitat, and does not affect,
disturb or condition the States reserve, so the
Autonomous Communities can manage actions with
international projection, as was established in STC
165/1994. The Protocol foresees that all States
will establish one or several national

prevention mechanisms, as long as they
respond to certain characteristics, as it happens
in the case of the Sindic de Greuges. Once
the Sndic de Greuges is appointed, the State,
as an international subject, must formally
notify its appointment to the competent body
in the United Nations. Nor is the Ombudsmans
Law which, according to the Constitution,

establishes the regulation and functions of the
Sndic de Greuges, as a co-institution, not
subordinated to the Ombudsman, saving for
him the Administration of the Generalitat.
However, this exclusivity is not

complete; there are two fields of competence
entitlement to exercise the national mechanism

functions, under Article 3 of Organic Law 1/2009,
represents an obstacle for the Catalonian Parliament
to establish its own mechanism to act in territorial
scopes where the Generalitat is competent. The
of the Generalitat where the Ombudsman only

may act, without the Sndic de Greuges having
any possibility other than suggesting or
collaborating: to file an action of unconstitutionality if the Ombudsman considers
that a Catalonian Parliamentary law is
contrary to the Constitution (Article 32
LOTC) and, secondly, to lodge an Amparo
appeal if the autonomous Administrations
conduct infringes fundamental rights (Article
foregoing will apply without prejudice to the

various national prevention mechanisms
designated by Spain having to coordinate
when exercising their duties; certainly, Law
24/2009 does not only prevent this coordination but
also encourages and foresees it in several provisions.
Consequently, the Attorney of the Generalitat

Government requires that, after the adequate
proceedings, the decision to be delivered fully
dismisses the appeal and states that the
challenged provisions of Law 24/2009 are
consistent with the Spanish Constitution.
10. The Attorney of the Catalonian Parliament
completed the step in a writ presented on this
Court on May 26th, 2010, requesting that the
action of unconstitutionality be dismissed on the
following grounds:
(2016) 1 LAW
46.1 LOTC).
Two more arguments are added. An
ombudsmans capacity for action should
depend on the body it represents, in such
a way that the Ombudsman cannot control
the autonomous Administration. That is
because the control measures adopted by the
Spanish
Parliament
over
autonomous
Governments and Administrations are very
limited and exceptional; rather, these powers
should be held by the Sndic de Greuges.
28
(2016) 1 LAW
Secondly, comparative international law

indicates that in complex States where
Ombudsman institutions co-exist in
federal or state areas, with others of state
and regional scope, the coordination
between both ones is regulated on an
exclusive basis, as foreseen in Article
78.1 EAC.
b) Supervision of the Sndic de Greuges over
local bodies and the public and private
bodies depending on him, foreseen in
Article 26 of Law 24/2009, covers
matters
under
the Generalitats
jurisdiction. The appellant is wrong in
upholding constitutional case-law on
infra-statutory rules, in reference to a
special Organic Law the Statute of
Autonomy of Catalonia , the foregoing
is not applicable to the interpretation of a
statutory rule because the latter, on the
contrary, acts as a constitutionality
parameter, precisely integrated as part of
the Constitution. The autonomy of local
bodies does not prevent external checks
such as the Sndic de Greuges including
F-11
mutual institutional relations. The cases

foreseen therein fully abide by the
respective competences of one and the
other, and constitute an indispensable
minimum for this collaboration.
d) Article 1 b) and Title VIII of Law 24/2009
do not invade the exclusive powers of the
State in institutional relations, foreseen in
Article 149.1.3 CE, as it is established in
Article 196.4 EAC and, essentially, in the
case-law laid down in STC 165/1994,
which notably extended some lines of
interpretation considered in the foregoing
doctrine (STC 80/1993). Further to this
case-law, if the core reserved to the State
in Article 149.1.3 CE is not affected, all
Autonomous Communities may carry out
activities generally encompassed as
action with international projection,
always in accordance with the
competences conferred in each Statute of
Autonomy and with the legitimate
purpose of achieving them.
e) Attribution to the Sndic de Greuges under
Law 24/2009 of the status as a Catalonian
authority for the prevention of torture
satisfies, not only the rules of the
Constitution, but also to the Statute of
Autonomy, Protocol and amendment of
the Organic Law of the Ombudsman
(Organic Law 1/2009).
Article 196.4 EAC foresees: The Generalitat
will adopt the necessary measures to execute any
obligations derived from international treaties and
conventions ratified by Spain, or binding the
State in the scope of its competences. And the
Generalitat is competent in the matter regulated
by the Protocol.
The Protocol allows the creation of one or several
other controlling bodies and resources, over

the actions of local bodies, whose existence
is not being questioned, such as the

Catalonian Data Protection Agency and
the Sindicatura de Comptes.
c) Article 78 of Law 24/2009 respects the
constitutional order, as long as it is
adequately construed in the context of an
Autonomous State. In this context,
Article 78.2 of the Statute of Autonomy
of Catalonia recognises and demands
collaboration between the Sndic and the
Ombudsman, without configuring this in
a specific legal form, establishing that
both institutions should do so in the most
respectful and efficient manner possible.
This same provision of the Statute of
Autonomy also provides sufficient
hermeneutic guidelines to determine the
scope of collaboration agreements or,
simply the day-to-day existence of
national prevention mechanisms in each State, which

establishes, designates or maintains them according to
their domestic law; in complex States, any mechanisms
established by decentralized entities may be
designated as national prevention mechanisms. The
appointment is a different matter from the formal

notification of this appointment in favour of the
29
F-12
Catalonian authority, to the competent United

Nations body.
The amendment of the Organic Law of the
Ombudsman by Organic Law 1/2009, according
to the principle of interpretation in accordance to
the Constitution, indicates that the attribution made
The creation of a national mechanism for the

prevention of torture is foreseen in the Optional
Protocol of the United Nations Convention against
torture and other cruel, inhuman or degrading
treatment or punishment, adopted by the General
Assembly of the United Nations on December 18th, 2022,
and ratified by Spain on March 3rd, 2006. The
Ombudsman challenges Article 1.b) of Law 24/2009
because it assigns to the Sndic de Greuges status as a
Catalonian Authority for the Prevention of Torture
and other Cruel, Inhuman or Degrading Treatment or
Punishment; this attribution is regulated in Title
to the Ombudsman of functions related to a national

mechanism for the prevention of torture does not
exclude the possibility of other national mechanisms
established by Autonomous Communities.
The prevention of torture and other cruel,

inhuman or degrading treatment or punishment
are all functions within the competence of the
Generalitat, specifically of the Sndic de
Greuges further to its protection and defence of
human rights, even if it co-exists with the
competence generically held by the State and,
specifically, the Courts, Constitutional Court and
the Ombudsman, amongst others.
11. By a decision dated on March 3rd, 2015, it
was scheduled the date to debate and vote this
Judgment on March 5th, 2015.
II. GROUNDS
1. The Ombudsman challenges the Catalonian
VIII of Law 24/2009, entitled Prevention of

Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, including Articles 68
to 77, all of them have been challenged. The
Ombudsman claims that all these provisions are
unconstitutional because they ignore the States
exclusive jurisdiction in international relations,
established in Article 149.1.3 CE; this competence

was exercised by the Spanish Parliament through
the Organic Law 1/2009, of November 3,
designating the Ombudsman as the national
mechanism to prevent torture under the Optional
Protocol.
The Government of the Catalonian Generalitat
Parliament Law 24/2009, of 23 December, of the Sndic

de Greuges, Articles 1 b), 3.1, 26 b) and c), sections
local
Administration
and
or
the
local
Administration , Article 78 and Title VIII, entirely
(Articles 68 to 77, both inclusive).
opposes to the appeal brought by the Ombudsman,

claiming that Articles 3.1, 26.b) and c), and 78 of Law
24/2009 should be interpreted according to the principle
of autonomy, recognised in Article 2 CE. Article 78.2
EAC grants the Ombudsman powers to control

the State Administration and to guarantee citizen
rights; in this sense, the Ombudsman can file
Amparo
appeals
and
actions
of
unconstitutionality, what justifies the need for
collaboration with the Sndic de Greuges. In the
other hand, local self-government does not
prevent control by external bodies, including the
Sndic de Greuges.
According to the Generalitat, Article 1.b) and
The Ombudsman alleges the unconstitutionality of

Articles 3.1 and 26, b) and c), of Law 24/2009, due to
granting the Sndic Greuges powers of supervision over
the local Administration and its dependent bodies,
without limiting these powers to the matters conferred by
the Statute of Autonomy, or any which the latter may have
transferred or delegated to local bodies. Consequently,
this infringes the jurisdiction given the Ombudsman by
Article 54 CE, and the self-government protected by
Article 137 CE. In turn, Article 78 of Law 24/2009 is
considered unconstitutional due to establishing the
execution of agreements between the Sndic de
Greuges and the Ombudsman to specify the
collaboration between both institutions, in breach of
Articles 54 and 66 .2 CE. According to these
Title VIII of Law 24/2009 do not affect the States

exclusive jurisdiction in international relations, as long
as Autonomous Communities observe the requirements
established in STC 165/1994, to manage action with
international projection. The attribution to the
Ombudsman of functions as a national mechanism,
under Organic Law 1/2009, does not prevent the
Catalonian Parliament from establishing its own
provisions, the Spanish Parliament and the

Ombudsman are competent to regulate relations
between the Ombudsman and the parliamentary
commissioners of Autonomous Communities.
(2016) 1 LAW
30
(2016) 1 LAW
F-13
26.b) (the local Administration) and c) (or the

local Administration) and Article 78 which,
mechanism to act in the material scope under the

competence of the Generalitat, and allowing the
State, as an international subject, to notify this

appointment to the international body in charge.
The Catalonian Parliament sustains the
constitutionality of Articles 3.1, 26 and 78 of Law
24/2009, because the first two do not limit the
Ombudsman to act in to the jurisidiction of the
Generalitat, as there are two fields of jurisdiction
according to the claim, are directly related to the

alleged unconstitutionality claimed by the
Ombudsman in relation to Article 78 of Organic
Law 6/2006, of July 19, that reforms the Statute
of Autonomy of Catalonia (EAC), in action of
unconstitutionality 8675/2006. The second group
would consist of the rest of the articles challenged:
Article 1.b) and the entire Title VIII (Articles 68 to 77,
both inclusive), regulating the attribution of the status
of the Sndic de Greuges as Catalonian Authority for the
Prevention of Torture and other Cruel, Inhuman or
Degrading Treatment or Punishment.
where the Ombudsman is exclusively entitled: to file an

action of unconstitutionality and to lodge an Amparo
appeal. The Sndic de Greuges is acting with
respect to Catalonian local bodies, based on the

regulations provided by the Laws on Local
Administration and the powers held by the
Generalitat in relation thereto. Article 78 of Law
24/2009, in turn, does not intend to regulate the
Ombudsman or to oblige it to follow a
coordinating procedure with the Sndic de
Greuges; it only gathers the principle of
collaboration and coordination between the State
and Autonomous Communities.
The Catalonian Parliament also considers that Law
3. As part of the first group of challenged

articles, Article 3.1 is being questioned on the
grounds of entrusting to the Sndic de Greuges the
supervision powers on an exclusive basis over
the administrative activity of the Autonomous
Community in all orders, which would prevent
action on the part of the Ombudsman, thereby
breaching Article 54 CE.
Secondly, it is claimed that Article 26.b) (the
local Administration) and c) (or the local
Administration) confer the Sndic Greuges the
supervision power over the entire activity of the
local administration and its related bodies,
overlooking the competence of the Ombudsman,
and the case-law of the Constitutional Court on
the powers of supervision held by the national
and regional Ombudsmen over those public
bodies.
24/2009 does not invade the States exclusive powers

about international relations, under Article 149.1.3 CE;
further to the case-law laid down by STC

165/1994, the Autonomous Communities may carry
out activities generally encompassed as action with an
international projection, as they do not affect the core
reserved to the State by virtue of Article 149.1.3.CE and
according with the competences entrusted thereto

by the Statute of Autonomy, and with the
legitimate aim of achieving them. In its opinion,
this power comes from Article 196.4 EAC, which
imposes on the Generalitat the duty of adopting
the necessary measures to execute the obligations
derived from international treaties and
conventions ratified by Spain or binding the State
in the scope of its competence. The principle of
interpretation in accordance with the Constitution, as it
was applied to the amendment of Organic Law
1/2009, which confers the Ombudsman the functions
Article 78 of Law 24/2009 is challenged for

overlooking the competences of the National Parliament
[Cortes generales] to regulate relations between the
national and the regional Ombudsmen.
This set of challenges has been resolved in the

Judgments
delivered
in
actions
of
unconstitutionality against Organic Law 6/2006,
of July 19, that reforms the Statute of Autonomy
of Catalonia.
STC 31/2010, of June 28 (Ground 33), resolved the
challenge of section one of Article 78 EAC, specifically
for conferring the Sndic de Greuges the supervision of
administrative
activity
of
the
Autonomous
Communities, in all orders, on an exclusive basis,
since this exclusivity would make it impossible for the
as national mechanism to prevent torture, would also

allow other national mechanisms established by the
Autonomous Communities.
2. The challenged articles may be divided into

two groups. The first would consist of Articles 3.1,
31
F-14
through an express reference, is made in the

terms of Article 78.1 EAC. Once this article of
the Statute has been cleared, the supervision of
Ombudsman to act with respect to the Catalonian

Administration, thereby breaching Article 54 CE. We
then pointed out that the extra-jurisdictional
guarantee inherent to the Ombudsman cannot be
limited in scope to supervising the States Central
Administration, but should also include any public
Administrations, in order to totally cover all
constitutional guarantees for rights related to any
variables of public powers. As a consequence, we
declared in the mentioned Judgment that the
section on an exclusive basis of Article 78.1 EAC was
unconstitutional, null and void.
the Sndic de Greuges over the local Administration and

its related bodies is not exclusive, thereby it does not
exclude the Ombudsmans supervision.
The last provision of this first group is Article

78 of Law 24/2009, regulating collaboration between the
Sndic de Greuges and the Ombudsman. The
Ombudsman is challenging this precept on the grounds
that it regulates collaboration between the Sndic de
Greuges and the Ombudsman, consequently infringing
the powers of the Spanish Parliament to regulate
relations between national and regional Ombudsmen,
breaching constitutional articles 54 (Ombudsman) and
66.2 (legislative power of the State). The matter was
On the basis of the previous Judgment, STC

137/2010, of 16 December (Ground 7), reasoned
that stated the unconstitutionality of the
exclusivity of the Sndic de Greuges when
protecting and upholding the rights and freedoms
recognised by the Constitution and the Statute of
Autonomy, it was in fact not unconstitutional for
the Sndic de Greuges to be in charge of
supervising the activity of the Catalonian local
Administration and any public or private related
bodies that depend on that Administration (Article
78.1 EAC); thus, not being part of the of the
settled in aforementioned STC 137/2010 (Ground

7), delivered in the Ombudsmans appeal. The
inclusion of this so-called cooperation principle in
Article 78.2 EAC and Article 78 of Law 24/2009,
implementing it, is conditioned by the principle of
voluntariness. Consequently, the cooperation
provisions included in regional Laws impose

nothing on the State, that is totally free to act.
According to this doctrine, Article 78 of Law 24/2009
cannot be declared unconstitutional.
Generalitat Administration, local Administrations are

regulated in the Statute of Autonomy. Nevertheless,
this supervision cannot be considered exclusive or
excluding of the Ombudsmans supervision, which
covers all Public Administrations, whether of a state,
autonomous or local nature.
4. The second set of challenged provisions includes

Article 1.b) of Law 24/2009, that confers to the Sndic de
Greuges the status of Catalonian authority for the
degrading treatment or punishment; and Title VIII
entitled Prevention of Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment
(Arts 68 to 77, both inclusive) regulating this
attribution. The Ombudsman is challenging these
Given the declared unconstitutionality of the

section on an exclusive basis of Article 78.1
EAC (STC 31/2010, Ground 33), the reference
made by Article 3.1 of Law 24/2009 to Article
78.1 EAC involves an article that has been
cleared of all unconstitutionality, in which the
expression on an exclusive basis no longer
exists. This way, the Ombudsmans competence to
articles because they breach the States exclusive

jurisdiction on international relations, foreseen in
Article 149.1.3 CE; they breach constitutional
case-law on the matter, implemented in STC
165/1994, of 26 May; and they contradict
Organic Law 1/2009, of November 3, whereby
the Spanish National Parliament designated the
Ombudsman as the national mechanism for the
prevention of torture. Instead, the Catalonian
supervise remains not only for the central State

Administration but also any public Administration in
Catalonia.
The same is applicable to the challenge of the

sections the local Administration and or the
local Administration, in b) and c) of Article 26,
which state that the supervision by the Sndic de
Greuges of the local Administration and any
related public and private bodies which, likewise
(2016) 1 LAW
Parliament and Government consider that the

challenged regulations do not affect the core reserved to
the State under Article 149.1.3 CE. Conversely, this
Autonomous
32
Community
activity
would
(2016) 1 LAW
generically fall within the concept of foreign

action, enabling the Catalonian Parliament to
establish a mechanism for the prevention of
torture in order to act in the material scope where
the Generalitat is competent. Once a mechanism
is established by an Autonomous Community, it
is the State, as an international subject, which
should appoint it before the competent
international body.
The optional Protocol of the Convention against
F-15
office, amending Organic Law 6/1985, of 1 July,

of the Judiciary, added a new final single
provision to Organic Law 3/1981, of 6 April, of
the Ombudsman, related to the national
mechanism for the prevention of torture, in the
following terms:
First. The Ombudsman will act as the National
Mechanism for the Prevention of Torture
pursuant to the Constitution, this Act and the
Optional Protocol of the Convention against
torture or other cruel, inhuman or degrading
treatment or punishment.
Second. An Advisory Council will be established
to act as a technical and legal cooperation body,
when exercising the tasks inherent to the
National Prevention Mechanism, to be presided
by the Attach, entrusted by the Ombudsman
with the duties foreseen in this provision. The
Regulations will determine its structure,
composition and operation.
Torture and other Cruel, Inhuman or Degrading

Treatment or Punishment, signed in New York on
December 18 2002 and ratified by Spain in 2006, aims at
establishing a system of periodic visitation performed by
both international and national independent bodies, to
places where persons are deprived of their freedom, in
order to prevent torture and other cruel, inhuman or
degrading treatment or punishment (Article 1). To do
this, the signatory States have established a nonjudicial preventive system, consisting of an
international body (Deputy Committee for
Prevention) and one or several national bodies, if
so decided by each State (national prevention
mechanism), which will visit any place under the
jurisdiction and control of the State where
persons are or may be deprived of freedom
(Articles 2 and 3). To that effect, the deprivation
of freedom will refer to any type of detention or
imprisonment or custody of a person, by order of
a judicial or administrative authority injunction or
other public authority, in a public or private
institution that cannot be freely abandoned
Resolution of January 25 2012, issued by the

Boards of the Congress of Deputies and the
Senate, amended the Ombudsman Organization
and Operation Regulations in order to comply
with the amendment of the Organic Law of the
Ombudsman, by the Organic Law 1/2009, of
3 November, in order for it to act as the national
prevention
mechanism.
Specifically,
the
amendment establishes the structure, composition
and operation of the Advisory Council, which
foresees the reform, as the technical and legal
cooperation body to exercise the duties inherent
to the national prevention mechanism.
The Constitutional Court, in STC 165/1994, of 26
(Article 4).
Article 17 of the Protocol provides that Each

State Party shall maintain, designate or establish,
at the latest one year after the entry into force of
the present Protocol or of its ratification or
accession, one or several independent national
preventive mechanisms for the prevention of
torture at the domestic level. Mechanisms
established by decentralized units may be
designated as national preventive mechanisms for
the purposes of the present Protocol if they are in
conformity with its provisions. This is why
Organic Law 1/2009, of 3 November,
complementing the Law reforming procedural
legislation to deployment of the new judicial
May, restraining the position upheld until then, specifies

the content of the State competence title related to
international relations of the Article 149.1.3 CE: it
cant be excluded in any way, in order to

adequately carry out the tasks assigned, that an
Autonomous Community may need to carry out certain
activities, not just on a supra-regional level but, even,
beyond Spains territorial boundaries (STC
165/1994, Ground 3). Previously the Court had

stated that the constituent body in a provision
[Article 149.1.3 CE] with an adequately
meditated and unequivocal scope, as inferred
from the parliamentary drafts has exclusively
33
F-16
reserved to the central State bodies all

competences in international relations. The nature
of this matter has already been previously upheld,
albeit briefly, by the Court (see Constitutional
subsequently, in STC 118/2011, of 5 July,

Ground 10, cited in turn by STC 138/2011, of 14
September, Ground 4.
The said doctrine, for what interests us here,
may be summarized as follows:
a) Autonomous Communities, as part of the
Court Judgments (SSTC) 44/1982, Ground 4, and

154/1985, ground 5). (STC 137/89, of 20 July,
Ground 3). However, the Constitutional Court
exercise of their competences, may carry out

activities with international projection, albeit
subject to the limit of any reservations made
by the Constitution in favour of the State, and,
specifically, the reservation foreseen in Article
149.1.3 CE, which confers exclusive
jurisdiction on international relations.
immediately specified this statement by

dismissing any relationship, regardless how
remote, with matters involving other foreign
countries or citizens, meaning that per se or
necessarily, this competence is attributed to the
international relations rule (STC 153/1989,
of 5 October, Ground 8). In later Judgments, the
Court has consolidated the doctrine, in which it is
accepted that Autonomous Communities can
carry out activities with an impact abroad: the
external dimension of a matter cannot be used to
construe Article 149.1.3 CE in broad terms,
thereby subsuming in the States competence any
measure endowed with some kind of foreign
impact, regardless how remote, given that
otherwise this would restructure the constitutional
order for the allocation of competences between
the State and Autonomous Communities (STC
80/1993, Ground 3).
However, STC 165/1994, of 26 May, also
b) When determining the scope of the exclusive

State competence foreseen in Article 149.1.3
CE it should be taken into account that
international relations, as a matter, cannot be
identified with any type or activity entailing a
foreign scope or impact; otherwise, this
would restructure the constitutional order

for the allocation of competences
between the State and Autonomous
Communities, although the actions
covered by such competence title, should
be excluded in all cases from the
activities with international projection of
Autonomous Communities .
c) Without intending to exhaustively
describe the States reservation further to
Article 149.1.3 CE, the Court has
considered as part of the basic
components of its content the conclusion
of treaties (ius contrahendi), foreign
representation of the State (ius legationis)
as well as the creation of international
obligations and the States international
liability; in other words, the international
relations covered by the reservation
foreseen in Article 149.1.3 CE are
relations between international subjects,
governed by international law; this
necessarily means that any foreign action
established precise limits on the foreign action of

Autonomous Communities: Notwithstanding the
foregoing, the possibility granted to Autonomous

Communities, as part of the exercise of their
competences, to carry out activity with an impact
abroad, and the scope any such activity may have,
is subject to a clear limit: the reservations made
by the Constitution in favour of the State, to
particularly include the reservation foreseen in
Article 149.1.3 CE, which confers the State
exclusive jurisdiction on international relations
(STC 165/1994, Ground 5).
The doctrine on Autonomous Community activities
with international projection, and the scope of the
States exclusive competence in international relations,
carried out by Autonomous Communities

should be limited to actions that do not involve
exercising this ius contrahendi, do not generate
immediate and actual obligations vis--vis
foreign public powers, do not affect the States
have been reiterated in STC 31/2010, of 28 June,

Ground 125, expressly citing STC 165/1994, of
26 May, Grounds 5 and 6, referred to by the
parties in this action of unconstitutionality and,
(2016) 1 LAW
34
(2016) 1 LAW
F-17
States international liability (SSTC 137/1987,

153/1989 and 80/1993) (STC 165/1994, Ground
5). The matter is not unclear and involves powers
on which the Constitutional Court has
pronounced itself; rather, it constitutes the essential
foreign policy, and do not entail its liability vis-vis foreign States or inter or supra-national
organizations.
d) The States powers include the possibility of

regulating and coordinating the foreign actions
of Autonomous Communities, in order to
core of this exclusive and totally defined competence,

consisting of characteristics matters of international
law, for which Autonomous Communities are not
competent. Only the State is competent to designate
national prevention mechanisms, as foreseen in the
Protocol, and to decide whether one or several
mechanisms
will
exist.
An
Autonomous
prevent or remedy any potential harm to

the management and implementation of
the foreign policy exclusively entrusted
to the State.
If this doctrine is applied to the case at hand,
according to Article 17 of the Optional Protocol
Each State Party shall maintain, designate or
Communitys designation of a prevention

mechanism breaches this State power and the
state rules designating the mechanism. This
designation of a national prevention mechanism
is not covered by any competences either as
claimed by the Counsellor of the Catalonian
Parliament foreseen in Article 196.4 EAC,
which are merely cited to, as no competence title
is enshrined further to which the States exclusive
competence, contained in Article 149.1.3 CE,
may be fragmented; rather, a consequence and
logically correlated effect of this state exclusivity
is to establish a duty for the Generalitat:
specifically, to adopt the necessary measures in
order to ensure the execution of any obligations
derived from international treaties and
conventions, ratified by Spain or binding the
State in the scope of its competences.
In turn, the theory that, once the mechanism is
establish one or several independent national

preventive mechanisms for the prevention of torture at
the domestic level. Article 17 also foresees that
mechanisms established by decentralized units may be
designated as national preventive mechanisms for the
purposes of the present Protocol if they are in
conformity with its provisions. According to this
article, it is clear that the designation of a

national prevention mechanism, foreseen in
Articles 3 and 17 of the Protocol, may only be
carried out by each State Party. From another
point of view, the Protocol creates international
obligations and foresees the States international
liability, as the only party responsible for
compliance with the Protocol, not only as regards
the designation of national mechanism(s) but also
in relation to all other duties imposed by the
Protocol, such as cooperation with the Deputy
Committee for Prevention, guaranteed functional
independence
from
national
prevention
mechanisms, enabling compliance with its
mandate, or publishing and disseminating the
annual
reports
of
national
prevention
mechanisms, amongst others.
Consequently, Article 149.1.3 CE, as interpreted by
designated by an Autonomous Community, it is the

State, as an international subject, which should
communicate the designation to the competent United
Nations body, mistakenly presumes that the Autonomous
Community is able to impose international obligations on
the State which, in this case, would consist of
communicating the competent international body

of designation of the body by the Autonomous
Community and, consequently, the State would be
STC 165/1994, of 26 May, is not compatible with a

situation such as the one raised by Law 24/2009 in the
challenged provisions. The Protocol has been signed
liable for the operation of a mechanism it did not

designate. We need to insist on the fact that there
are international law matters reserved to the State,
which limit any activity with international projection
that Autonomous Communities may carry out; one of
these limits is that the activity of Autonomous
Communities cannot generate the States liability vis-vis foreign States or inter or supra-national
and ratified by the State exercising its own

competences in characteristic matters of
international law, such as the conclusion of
treaties (ius contrahendi) and the foreign
representation of the State (ius legationis), as well
as the creation of international obligations and the
35
F-18
organizations: In light of the scope of the States
Advisory Council of the Sndic de Greuges to be

informed of the said report in order to be able
to make observations; this right is based on a
report that is issued and presented by the Sndic
de Greuges that has been declared unconstitutional.
On the other hand, this declared unconstitutionality
exclusive competence, the possibility of

Autonomous Communities carrying out activities
with an impact abroad should be interpreted as
limited to those which, being necessary or at least
appropriate, for the exercise of their competences,
do not involve a ius contrahendi, do not generate
immediate and actual obligations vis--vis public
foreign powers, do not affect the States foreign
policy and do not render it liable vis--vis foreign
States or inter or supra-national organizations
(STC 165/1994, of 26 May, Ground 6).
As result of the foregoing, we should declare the
does not affect the Sndic de Greugess duty to present

to the Parliament each year a report on the actions
taken further to exercising its competences (Article
64.1 of Law 24/2009).

5. This said, the constitutional impropriety
incurred by the legislator of the Autonomous
Community when designating a national prevention
mechanism does not inevitably render unconstitutional
all of Title VIII of Law 24/2009; only if the entire
content of this title were inseparably connected to this
ultra vires conduct would it be inevitable to declare the
unconstitutionality of all the precepts it contains.
unconstitutionality of Articles 1.b), 68.1 and 2, 71.d, 74

and 75 of Catalonian Parliament Law 24/2009, insofar
as: i) Articles 1.b) and 68.1 attribute to the Sindic de
Greuges the status as a Catalonian authority under the
framework of the Optional Protocol of the United
Nations Convention against torture; ii) Articles 68.2
and 71.d) entrust the Sndic de Greuges with
competences and duties derived from the said Protocol;
iii) Article 69.2 is aimed at articulating collaboration
with the State, in order for the Sndic de Greuges to be
able to fulfil the duties inherent thereto as a Catalonian
Authority, in State-owned institutions where persons
are deprived of freedom, iv) Article 74 sets the
obligation to provide a monographic report on any
actions taken as a Catalonian authority bound by said
Protocol; and, finally, v) Article 75 designates the
Sndic de Greuges as the entity collaborating with the
Deputy Committee for the Prevention of Torture and
Other Cruel, Inhuman or Degrading Treatment or
Punishment which, as indicated by Article 2 of the
Protocol, carries out its task further to the United
Nations Charter and holds relations with the Party
States. The regulation contained in these provisions
infringes the States exclusive competence in
international relations, foreseen in Article 149.1.3
CE; furthermore, in the case of Article 69.2, the
Ombudsmans exclusive competence is also breached, in
relation to the General State Administration in
Catalonia, pursuant to Article 54 CE.
In this way, the fact that only the State is

competent to designate the national prevention
mechanism established in the Protocol, and to
decide whether one or several such mechanisms
will exist, as part of the essential core of the
exclusive competence in international relations
referred to in Article 149.1.3 CE, is insufficient to
examine the constitutionality of the other
provisions of Title VIII of Law 24/2009.
Therefore, we have to insist on the fact that the
functions assigned to the national prevention
mechanism do not in any way prevent exercising the
supervision powers entrusted to the Sndic de Greuges,
exclusively but not on an exclusive basis (STC
31/2010, Ground33), on the Generalitat

Administration and the local Administration of
Catalonia, specifically in relation to the
prevention of torture, other cruel, inhuman or
degrading treatment or punishment. Nor do the
tasks entrusted to the national prevention
mechanism prevent the Ombudsman, further to
the powers inherent to its tasks, beyond its
designation as a national mechanism to prevent
torture, to be able to request the collaboration of
the competent parliamentary Commissioner to
ensure the effective execution of its dealings and
to receive, as such or as the national mechanism
designated, any complaints on the activity of the
State Public Administration. This collaboration
An accessory consequence of the declared

unconstitutionality of Article 74 of Law 24/2009,
establishing the obligation to present a
monographic report on any steps taken as a
Catalonian Authority bound by said Protocol, is
the need to declare the unconstitutionality of
Article 77.5.c) of the Law, when it entitles the
(2016) 1 LAW
36
(2016) 1 LAW
may materialize in agreements, to include the

scope of action of the Public Administrations
being supervised (Articles 2.2 and 3 of Law
36/1985, of 6 November, regulating relations
between the Ombudsman as an institution and
similar figures in various Autonomous
Communities). The foregoing will also apply
without prejudice to the tasks entrusted to the
Public Prosecution Service, to which the Sndic
de Greuges and the Ombudsman should report
any signs of the commission of criminal
infractions or the existence of presumably
criminal conduct or facts (Articles 45 of Law
24/2009 and 25.1 of Organic Law 3/1981, of 6
April, of the Ombudsman, respectively.
Furthermore, for the purposes of examining the
constitutionality of the provisions contained in
Chapters II and III of Title VIII of Law 24/2009,
respectively
entitled
Work
Teamand
Advisory Council of the Sndic de Greuges for
the Prevention of Torture and Other Cruel,
Inhuman
or
Degrading
Treatment
or
Punishment, we need to recall that the Catalonian
F-19
Convention against torture and other cruel,

inhuman or degrading treatment or punishment,
adopted by the General Assembly of the United
Nations by means of Resolution 57/199, of 18
December 2002, and ratified by Spain on 3
March 2006.
Likewise, insofar as Article 72.2 allows the Sndic de
Greuges, in its task as Catalonian Authority for the
degrading treatment or punishment, to access the
data of medical records only insofar as related to the
functions performed in the matter, such article is
hereby declared unconstitutional, as it is solely aimed at
granting powers to the Sndic de Greuges that are
exclusively bound to its task as a national prevention
mechanism and, consequently, inseparably linked
to the foregoing ultra vires conduct.

6. At the same time, after declaring the
unconstitutionality of Article 69.2 of Law
24/2009, due to overlooking not only the States
exclusive competence in international relations
further to Article 149.1.3 CE, but also the
exclusive supervision competence entrusted to
the Ombudsman over the General State
Administration, the logical consequence is to
consider that the reference thereto made in
Article 72.1, when stating that the Sndic de
Greuges has access to information on the
number and location of the places referred to in
Article 69, on the number of persons deprived of
freedom, on the treatment given to these persons
and on the conditions of their detention or
imprisonment, should be deemed as referring to
Article 69.1, consequently excluding access to
any information that may affect State-owned
places. In this regard, we have reiterated that the
Parliament, within the area of its competences, by virtue

of Article 79.4 EAC, is entitled to regulate the
organisation and attributions of the Sndic de Greuges
and that, in addition, the Sndic de Greuges enjoys
regulatory, organizational, functional and budgetary
independence in accordance with the law.
At this point, based on the premises described,

and insofar as only the State is exclusively
competent to designate the National Mechanism,
we hereby declare the unconstitutionality of the
following terms: Catalonian Authority, heading
Chapter I of Title VIII; as a Catalonian Authority, in
Articles 69.1, 71 72.1, 73, 76.1, 77.1; as a Catalonian
Authority, Article 70; as they all identify, in each case
where the term is used, the Sndic de Greuges as a
national prevention mechanism, thereby incurring
the ultra vires conduct explained above. This is the
supervision competence entrusted to the Sndic de

Greuges is exclusively limited, albeit not on in an
excluding manner, to the Generalitat Administration
and to the Catalonian Local Administration, without
affecting the General State Administration.
purpose of the expressions used, as derived from

the Preamble of the Law, which aims at
endowing the Sndic de Greuges with status as a
Catalonian Authority for the Prevention of
Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, pursuant to the
Optional Protocol of the United Nations
If we apply the aforementioned constitutionality

parameters, and after removing the terms as a
Catalonian Authority, as unconstitutional,
included in Article 71 of Law 24/2009, the powers
attributed thereunder to the Sndic de Greuges in a), b)
and c), consisting of visiting places where persons
37
F-20
Parliament Law 24/2009, of 23 December, of the Sndic

de Greuges and, consequently, to declare that:
are
deprived
of
freedom,
to
make
recommendations to the competent authorities
and to make proposals an observations about
Draft Bills, as well as the reference contained in
Article 73.1 of said Law on the premises
deemed appropriate in those places where persons
are deprived of freedom, should be deemed as
1. The following are not unconstitutional,

interpreted in the terms expressed in
Ground Three above: Articles 3.1; 26.b)
(the local Administration) and c) (or the
local Administration) and Article 78, as well
as Articles 71.a), b) and c), 72.1 and 73.1, as
long as they are interpreted as foreseen in
Ground Six above.
exclusively
referring
to
places
owned
by
the Generalitat Administration and the local Catalonian
Administration, authorities of such Administrations
and, ultimately to Draft Bills of the Catalonian
Parliament.
2. The following are unconstitutional and,

consequently, rendered null and void: Articles
1.b), 68.1 and 2, 69.2, 71.d), 72.2, 74, 75, 77.5.c)
and the Catalonian Authority terms,
heading Chapter I of Title VIII, as a
Catalonian Authority in Articles 69.1, 71,
72.1, 73, 76.1, 77.1 and further to its status
as a Catalonian Authority in Article 70.
Finally, we would like to point out that Article

73.2, when establishing the possibility of Sndic de
Greuges the holding interviews, obtaining the doctors
opinion, insofar as such functions may be deemed as
severed from the duties assigned as a Catalonian
Authority, as part of the supervision tasks of the
Sndic de Greuges referred to, does not entail any
unconstitutionality whatsoever. The foregoing is
May this Judgment be published in the Official

State Gazette. Issued in Madrid, on March 15th,
2015.
likewise affirmed in relation to Article 76 and 77,

after clearing the terms as a Catalonian
Authority, as unconstitutional, contained in
Articles 76.1 and 77.1, and declaring the
unconstitutionality of Article 77.5.c), insofar as
they respectively configure the creation,
composition, selection of members and functions
of the Work Team and Advisory Council of
the Sndic de Greuges to prevent torture and other
cruel, inhuman or degrading treatment or
punishment. Thus, we have affirmed that the
Catalonian Parliament, in the scope of its
competences, by virtue of Act 79.4 EAC, is
entrusted to regulating the organization and
attributions of the and, furthermore, that
theSndic de Greuges enjoys regulatory,
organizational,
functional
and
budgetary
independence in accordance with the law when
exercising its competence.
RULING
*****
IN RETROSPECT
{Sagas of heroism and sacrifice of Indian
revolutionaries during freedom struggle}
Collected and Edited by: I. MALLIKARJUNA SHARMA
5 volumes (7 books) running to about 2200 1/8 demy pages
Rare and precious interviews of several revolutionary

freedom fighters - colleagues of Bhagat Singh like
Shiv Varma, Jaidev Kapur, Durga Bhabi; deputies of
martyr Surya Sen such as Benode Behari Dutta, Sahay
Ram Das; veteran fighters of Telangana Armed
struggle like B.N. Reddy, Omkar, Mallu Swarajyam;
founders of communist movement in India and
Andhra like SA Dange, SG Sardesai, Kambhampati
Satyanarayana, et al; of selfless intellectuals such as
Sri Vavilala Gopalakrishnaiah, Dr. A.R. Desai et al;
of several women leaders and fighters like Dr.
Lakshmi Sahgal of INA, Bina Das, Kamala Mukherji,
et al incorporated.
Entire set at a deep-discounted price of
Rs. 1500/- (for individuals only). Contact:
I. BALAMANI, RAVI SASI ENTERPRISES,
H. No. 6-3-1243/156, M.S. Makta, Opposite
Raj Bhavan, HYDERABAD - 500 082.
Ph: 040 - 23300284; E-mail: mksharma55@gmail.com
For all of the above, the Constitutional Court, BY

THE AUTHORITY CONFERRED BY THE
CONSTITUTION OF THE SPANISH NATION,
Has decided
To partly uphold the unconstitutionality appeal
lodged
by
the
Ombudsman
against
(2016) 1 LAW
(Add Rs. 75/- for outstation cheques)
Catalonian
38
(2016) 1 LAW
Amparo Appeal against European Arrest Warrant [SPN-CC]
(2016) 1 LAW F-21 (SPN-CC)
F-21
The Constitutional Court, in full bench,

composed of the Honour Judges Mr. Francisco
Prez de los Cobos Orihuel, President, Ms. Adela
Asua Batarrita, Mr. Luis Ignacio Ortega lvarez,
Ms. Encarnacin Roca Tras, Mr. Andrs Ollero
Tassara, Mr. Fernando Valds Dal-Re, Mr. Juan
Jos Gonzlez Rivas, Mr. Santiago MartnezVares Garca, Mr. Juan Antonio Xiol Ros, Mr.
Pedro Jos Gonzlez-Trevijano Snchez and Mr.
Enrique Lpez y Lpez, has pronounced
CONSTITUTIONAL COURT
OF SPAIN AT MADRID
Tribunal Constitucional de Espaa
Judgment No. 26/2014
Thursday, 13 February 2014

***
SHORT NOTES: The point of law in this amparo appeal is as
to whether in the member states of the European Community,
where extradition proceedings are replaced by the system of
European Arrest Warrant, the European Community law
binds the member states and their constitutional courts in
respecting and enforcing such EAW irrespective of whether in
cases of convictions made in absentia, the convicting State
permits appellate proceedings in presence of the convict after
his surrender to that country or not. The Constitutional Court
opined that, in the instant case, EAW has a binding force even
if the conviction in absentia may not be followed up by postconviction hearings.
IN THE NAME OF THE KING
the following
JUDGMENT
In the amparo appeal 6922-2008, brought by
Mr. Stefano Melloni, represented by the Attorney
Ms. Paloma Rubio Pelez and assisted by the
Lawyer Mr. Luis Casaubn Carles, against the
Order issued by Section One of the Criminal
Chamber of the Audiencia Nacional, on 12
September 2008, entered into the Chamber
records under no. 373-2008, agreeing to surrender
the appellant to the Italian authorities in order to
complete the conviction ordered by the Appellate
Court of Bologna, further to European Arrest
Warrant No. 157-2008. The Public Prosecutor has
been party to the proceedings. The judgment has
been drawn up by Judge Ms. Encarnacin Roca
Trias, who expresses the opinion of the Court.
***
Courtesy: Constitutional Court of Spain, Domenico Scarlatti,
6, Madrid - 28003, http://www.tribunalconstitucional.es/;
Emphases in bold ours - IMS.
The writ of amparo (also called recurso de amparo or juicio

de amparo) is a remedy for the protection of constitutional
rights, found in certain jurisdictions. In some legal
systems, predominantly those of the Spanish-speaking
world, the amparo remedy or action is an effective and
inexpensive instrument for the protection of individual
rights. Amparo, generally granted by a supreme or
constitutional court, serves a dual protective purpose: it
protects the citizen and his basic guarantees, and protects the
I. Background Facts
constitution itself by ensuring that its principles are not violated

by statutes or actions of the state that undermine the basic
rights enshrined therein. It resembles, in some respects,
1. By means of a writ received at the General

Registry of this Court on 17 September 2008, the
Attorney Ms. Paloma Rubio Pelez, acting on
behalf and in the name of Mr. Stefano Melloni
and assisted by the Lawyer Mr. Luis Casaubn
Carles, lodged an amparo appeal against the Order
issued by Section One of the Criminal Chamber
of the Audiencia Nacional on 12 September 2008,
constitutional remedies such asthe writ of security

available in Brazil and the constitutional complaint
(Verfassungsbeschwerde) procedure found in Germany.
In many countries, an amparo action is intended to protect
all rights that are not protected specifically by the
constitution or by a special law with constitutional rank,
such as the right to physical liberty, which may be
protected instead by habeas corpus remedies. Thus, in the
same way that habeas corpus guarantees physical
freedom the amparo protects other basic rights. It may
therefore be invoked by any person who believes that any
of his rights, implicitly or explicitly protected by the
constitution, another law (or by applicable international
treaties), is being violated. Amparo in Spanish literally
means protection or refuge. {Wikipedia}
authorising the appellants surrender to the Italian

authorities in order to complete a conviction ordered by
the Ferrara Court, further to European Arrest Warrant
no. 157-2008.
2. The relevant facts for the resolution of this

amparo appeal are basically the following:
39
F-22
a) Section One of the Criminal Chamber of the

Audiencia Nacional, in an Order dated 1 October
1996, approved the extradition to Italy of Mr.
Stefano Melloni, to be tried for the facts
described in arrest warrants nos. 554-1993 and
444-1993, respectively issued on 13 May and 15
June 1993 by the Ferrara Court. The resolution
states that during the necessary appearance at
courts, the requested person challenged the
extradition because he never thought that
criminal irregularities existed, but believed that
an economic crisis merely entailed civil liability,
manifesting that should he be released, he
undertook to voluntarily return to his country and
render the necessary accounts to the Italian
courts. Also according to this resolution, by
means of an Order delivered by Central
Investigation Court (Juzgado Central de
Instruccin) No. 1, on 19 April 1996, his release
on bail was approved, subject to a 5,000,000peseta deposit, that he provided the following
day. According to subsequent resolutions held in
the case, the appellant escaped and was therefore
not surrendered to Italy.
b) By means of a Decree of 27 March 1997, the
Ferrara Court declared the now appellant in
absentia , given that he had evaded justice, and
agreed that any notifications be subsequently
made to Lawyers of his choice he had already
appointed. Through a Judgment dated 21 June
2000, subsequently upheld by the Judgment of 14
March 2003 delivered by the Appellate Court of
Bologna, the plaintiff was held in absentia as the
perpetrator of an offence of fraudulent
bankruptcy and sentenced to ten years
imprisonment. At both instances he was
counselled by Lawyers Mr. Vittorio Rossi
belonging to the Modena Bar Association and
Mr. Bruno Senatore of the Milan Bar
Association who, in this position, were
informed of the Decree for the present purposes
which ordered commencement of a public
hearing prior to the Ferrara Courts conviction,
including European Arrest Warrant no. 271-2004,
delivered on 8 June 2004 by the Public
Prosecution Office of the Republic before the
(2016) 1 LAW
Appellate Court of Bologna, further to which

proceedings commenced giving rise to this
constitutional suit. By means of a Judgment dated
7 June 2004, Criminal Section Five of the
Supreme Court of Cassation rejected the appeal
lodged by the plaintiffs Lawyers, Mr. Vitorio
Rossi, Mr. Bruno Senatore and Mr. Luciano
Teneggni.
c) As a result of his arrest by the Spanish police,
on 1 August 2008, Central Investigation Court
No. 6 commenced proceedings for European
Arrest Warrant (EAW) no. 157-2008, in relation
to EAW no. 271-2004, issued by the Public
Prosecution Office of the Republic before the
Appellate Court of Bologna in order to complete
the conviction ordered by the Ferrara Court.
Through an Order dated 2 August 2008, the same
Court ordered a lifting of the EAW and applied
for surrender before Section One of the Criminal
Chamber of the Audiencia Nacional. The
appellant challenged his surrender, claiming, in
the first place, that during the appeal stage he had
appointed another Lawyer, revoking the
appointment of the two previous lawyers, although
the latter continued to receive the relevant
notifications. Second, he claimed that Italian
procedural law does not contemplate the possibility of
appealing convictions delivered in absentia, which is why
the EAW and his surrender, in any case, were
conditional upon Italy guaranteeing an appeal against
the Judgment.
d) First Section of the Criminal Chamber of the

Audiencia Nacional, by means of an Order dated
12 September 2008, which is hereby challenged
in this amparo appeal, agreed to surrender the
appellant to the Italian authorities in order to
complete the conviction imposed by the Ferrara
Court, as the perpetrator of an offence of
fraudulent bankruptcy. First of all, the Audiencia
Nacional did not consider as proven that the
Lawyers appointed by the appellant no longer
represented him as of 2001. According to the
challenged Order, this allegation is contradicted
by the issuing authority in a complementary
report requested to the Public Prosecution Office
of the Republic. Second, the Audiencia Nacional
40
(2016) 1 LAW
also rejected his pleading regarding the lack of

defence based on the information included in the
arrest warrant and the documents provided by the
requested person himself, indicating that the
requested person was aware that a future trial
would be held, voluntarily incurred in absentia
and had designated two Lawyers of his choice for
his representation and defence; these Lawyers
participated at first instance, on appeal and on
cassation, thereby exhausting all appeal channels.
In light of the foregoing, the Audiencia Nacional
reached the conclusion that, in a case such as the
one tried in the main suit, the conviction in
absentia and the holding of a trial in absentia
were not disproportionate, precisely because the
accused had been technically defended and had
waived his personal defence by incurring in
absentia, in such a way that it cannot be
affirmed that the requested party was unprotected
during the suit, and the issuing authorities need
not provide any guarantees in this respect.
e) The applicant requested the nullity of the
proceedings thereby meeting the requirement to
grant this amparo appeal leave to proceed, i.e. to
exhaust prior judicial channels and Section One
of the Criminal Chamber of the Audiencia
Nacional, rejected his petition by means of a
resolution dated 16 September 2008.
3. The appellant sustains his amparo appeal on the
F-23
consolidated case-law of the Constitutional Court,

whereby, in the case of convictions for serious offences
ordered in absentia, surrender must be conditional
upon the possibility of reviewing the Judgment,
recalling to this effect Constitutional Court

Judgments (in Spanish, Sentencia del Tribunal
Constitucional [STC]) 91/2000, of 30 March, and
177/2006, of 5 June.
4. By means of a resolution dated 18 September
2008, Section One of this Constitutional Court
agreed to grant the claim leave to proceed and,
further to the provisions established in Article
56.6 of Organic Law 2/1979, of 3 October, of the
Constitutional Court, it suspended the execution
of the Order dated 12 September 2008 issued by
Section One of the Criminal Chamber of the
Audiencia Nacional. The appellant, who has still
not been surrendered to the Italian authorities, is
currently free.
5. By means of a resolution dated 10 October
2008, it was agreed that the Public Prosecutor and
the parties be forwarded the proceedings and
granted a common term of 20 days to submit any
pleadings deemed appropriate.
6. The Public Prosecutor completed the pleadings
stage with a writ, received by the Constitutional
Court on 21 November 2008, which concluded
against the amparo appeal, on the grounds that
the plaintiffs right to a fair trial had not been
violated.
According to the case-law laid down by STC
91/2000, it considered that the Constitution does not
violation of his right to a fair trial, acknowledged in

Article 24.2 of the Spanish Constitution. He claims
that the challenged Order indirectly infringes the

absolute requirements stemming from the right
enshrined in Article 24.2 of the Spanish
Constitution, by hindering the essential content of
a fair trial, in such a way as to affect human
dignity, given that agreeing on an extradition to
countries which, in the case of very serious
offences, uphold convictions in absentia, without
making surrender conditional upon the convicted
party being able to challenge them in order to
uphold his rights of defence, constitutes a
violation of the right to a process with full
guarantees. The appellant also claims that his
appeal has special constitutional relevance, because
forbid convictions in absentia, not even in the case of

serious offences, but only makes this conditional upon
the possibility of a later challenge. This is why,
consequently, since STC 120/2002 and 160/2002

or, even in relation to EAWs, since STC
177/2006, a resolution that gathers the possibility
of challenging the conviction cannot be refuted in
any way. Consequently, the Prosecutor states that
the possibility of challenging a conviction is
gathered in Article 175 of the Procedural Law of
the Italian Republic; the Constitutional Court has
indicated that this possibility was irrelevant in the
present case, given that a possible challenge is
the challenged Order apparently departed from

41
F-24
inapplicable if the accused party has voluntarily

waived his right to be party to the trial, as this
would not harm his right of defence, due to being
informed about the lawsuit, as accredited by the
appointment of his procedural representative.
The Public Prosecutor believes that there is no lack of
mentions that Article 5 of the Framework Decision

contemplates the possibility of conditioning the
decision to a new lawsuit in such cases.
8. By means of a resolution dated 1 March 2011, the
Constitutional Court, in full bench, agreed, further to a
proposal from Chamber One and pursuant to
Article 10.1 n) of the Organic Law on the
Constitutional Court, to undertake the examination
of this appeal.
9. By means of a resolution dated 31 March 2011,
the Constitutional Court, in full bench, agreed to
hear the appellant and the Public Prosecutor,
who, within a common term of ten days, could
submit any pleadings in relation to the possibility
of filing a preliminary ruling before the European
Court of Justice. Both parties filed their writs on
18 April 2011. Unlike the appellant, the Public
Prosecutor challenged a preliminary ruling
because, in its opinion, Council Framework
Decision 2009/299/JHA, of 26 February, was not
applicable ratione temporis to the lawsuit giving
rise to this amparo appeal, thereby the
preliminary ruling before the European Court of
Justice wouldnt be necessary for the final
resolution.
substantive defence if the party claiming it has not been

duly diligent when upholding his rights, as indicated
in the proceedings. The foregoing was upheld by

Section One of the Criminal Chamber of the
Audiencia Nacional, which believed that the accused
partys failure to act diligently by not voluntarily
standing before the court on trial, determined the
conclusion that it was unnecessary to provide the
accused party with further guarantees, given that his
own decision to evade justice cannot now be used

as an excuse to subsequently claim the fact of
non-attendance at the hearing. Thus, and
regarding the plaintiffs claim about his
revocation of the appointed Lawyers, the Public
Prosecutor considered that the Court had
thoroughly explained why the documents
provided by the appellant to justify his claims
were rejected, and why it had accepted those
directly sent by the Public Prosecutor of the
Italian Republic, whereby the plaintiff had
designated the Lawyers Vittorio Rossi and Bruno
Senatore at his own initiative, refuting the alleged
revocation claimed by the appellant.
7. The appellants attorneys completed the
pleadings stage with a writ filed on 12 November
2008, indicating that the then plaintiff and now
appellant had not been informed of the date and
place of the hearing, and was not eventually
surrendered to Italy in order to be tried. In
addition to substantially reiterating the arguments
included in his amparo appeal, for example that
10. The Constitutional Court, in full bench, by an

Order dated 9 June 2011, agreed to suspend the
processing of this amparo appeal and to apply to
the European Court of Justice for a decision on
the following preliminary rulings:
1. Must Article 4a(1) of Framework Decision
2002/584/JHA, as inserted by Council
Framework Decision 2009/299/JHA, be
interpreted as precluding national judicial
authorities, in the circumstances specified in
that provision, from making the execution of a
European arrest warrant conditional upon the
conviction in question being open to review, in
order to guarantee the rights of defence of the
person requested under the warrant?
2. In the event of the first question being
answered in the affirmative, is Article 4a(1) of
Framework
Decision
2002/584/JHA
compatible with the requirements deriving
from the right to an effective judicial remedy
his surrender should has been made conditional upon

the possibility of reviewing his conviction, he enlarges
that, although it is true that neither the Councils
Framework Decision on European Arrest Warrants nor
implementing Spanish Act 3/2003 includes this
requirement as a sine qua non condition for the
executing State to proceed with the surrender
requested, this does not remove the requirement derived
from the fundamental right to a fair trial, and in this
particular case to a fair extradition process. Finally, it
(2016) 1 LAW
42
(2016) 1 LAW
F-25
12. By means of a resolution dated 11 February

2014, it was scheduled the date of 13 February
2014 for the discussion and voting of this
Judgment.
and to a fair trial, provided for in Article 47 of

the Charter , and from the rights of defence
guaranteed under Article 48(2) of the Charter?
3. In the event of the second question being
answered in the affirmative, does Article 53 of
the Charter, interpreted schematically in
conjunction with the rights recognised under
Articles 47 and 48 of the Charter, allow a
Member State to make the surrender of a
person convicted in absentia conditional upon
the conviction being open to review in the
requesting State, thus affording those rights a
greater level of protection than that deriving
from European Union law, in order to avoid an
interpretation which restricts or adversely
affects a fundamental right recognised by the
constitution of the first-mentioned Member
State?
11. The Grand Chamber of the European Court of
Justice, by Judgement dated on 26 February
2013, replying to the preliminary issues, stated as
follows:
1. Article 4a(1) of Council Framework Decision
II. GROUNDS
1. As established in the Background Facts above,

this amparo appeal is challenging the Order
issued by Section One of the Criminal Chamber
of the Audiencia Nacional, on 12 September
2008, ordering surrender of the appellant to the
Italian authorities in order to complete the rest of
his ten years imprisonment, of which he was
convicted for an offence of fraudulent
bankruptcy. The appeal is based on a breach of
the right to a fair trial (Article 24.2 of the Spanish
Constitution), because the challenged resolution
agreed to surrender the plaintiff to Italy where
convictions in absentia are valid without
conditioning his surrender to the possibility of
challenging his conviction for a very serious
offence in order to safeguard his rights of
defence, as required by the case-law of the
Constitutional
Court
concerning
indirect
infringements of fundamental rights.
The Public Prosecutor proposes the rejection of the
appeal. In its opinion, sustained on the reasoning
exposed in the Background Facts, the appellants
2002/584/JHA of 13 June 2002 on the European arrest

warrant and the surrender procedures between Member
States, as amended by Council Framework
Decision 2009/299/JHA of 26 February 2009,

must be interpreted as precluding the executing judicial
authorities, in the circumstances specified in that
provision, from making the execution of a European
arrest warrant issued for the purposes of executing a
sentence conditional upon the conviction rendered in
absentia being open to review in the issuing Member
State.
right to a fair trial has not been infringed, because there

was no lack of protection.
2. We shall begin recalling that this Court, acting

as a court of a Member State in the terms of
Article 267 of the Treaty on the Functioning of
the European Union [Order of the Constitutional
2. Article 4a(1) of Framework Decision

2002/584, as amended by Framework Decision
2009/299, is compatible with the requirements
under Articles 47 and 48(2) of the Charter of
Fundamental Rights of the European Union.
3. Article 53 of the Charter of Fundamental
Rights of the European Union must be
interpreted as not allowing a Member State to
make the surrender of a person convicted in
absentia conditional upon the conviction being
open to review in the issuing Member State, in
order to avoid an adverse effect on the right to a
fair trial and the rights of the defence guaranteed
by its constitution.
Court (in Spanish Auto del Tribunal Constitucional,

hereinafter ATC) 86/2011, of 9 June, Ground (in
Spanish Fundamento Jurdico, hereinafter FJ) 4 e)],
applied to the European Court of Justice for three

preliminary rulings two regarding interpretation
and one about validity in relation to Article
4a (1) of the Framework Decision 2002,
subsequently amended by Council Framework
Decision 2009/2009, of 26 February (hereinafter,
the 2009 Framework Decision). Amongst other
reasons, as we had stated in ATC 86/2001, of 9
June, the standard control applicable to examine
43
F-26
the constitutionality of the Order delivered on 12

September 2008 by the, First Section of the
Criminal Chamber, of the Audiencia Nacional,
authorising the surrender of the appellant to the
Italian authorities, should be based on European
Union laws that imply the protection of the
fundamental rights, as well as the regulation of
European Arrest Warrants (EAWs), which
obviously point out the constitutional relevance
of the interpretation given to the European Union
law [FJ 4 b)]. As we highlighted in the Order, of
9 June 2011, European Union law is an
instrument to define part of the content of the
fundamental right that deploys ad extra effects,
i.e. the rights and guarantees, unawareness of
which by foreign authorities may entail an
indirect infringement if unconditional surrender is
ordered [FJ 4 c)]. Thus, in the Order raising the
preliminary ruling, we pointed out that the
European Court of Justice had still not
pronounced on the specific meaning of Articles
47.II and 48.2 of the European Charter of
Fundamental Rights (hereinafter, the Charter),
and its pertinent application to judgments of
conviction imposed in absentia in very serious
crimes [FJ 6 d)]. Nor is there any
pronouncement about the content of Article. 53 of
the Charter, in order to clarify the scope and
function of the European system to protect
fundamental rights, and its articulation with
respect to the declarations of rights contained in
Member State Constitutions (FJ 7). These
preliminary issues have been replied in the
Judgment of the Court (Grand Chamber) of 26
February 2013, C-399/11, Melloni. This response
will be of great use when determining the content
of a right to a process with full guarantees
(Article 24.2 of the Spanish Constitution)
deploying ad extra effects.
Declaracin
del
Tribunal
Constitucional
(hereinafter DTC)] 1/2004, of 13 December.
At that Declaration, we firstly pointed out that
the operation of the transfer of the exercise of
competences to the European Union and the
consequent integration of Community legislation
into our own impose unavoidable limits to the
sovereign faculties of the State, acceptable only
when European legislation is compatible with the
fundamental principles of the social and
democratic State of Law established by the
national
Constitution.
Consequently,
the
constitutional transfer enabled by Art. 93 CE is
subject to material limits imposed on the transfer
itself. Said material limits, not expressly included
in the constitutional precept, but which implicitly
result from the Constitution and from the
essential meaning of the precept itself, are
understood as the respect for the sovereignty of
the State, or our basic constitutional structures
and of the system of fundamental principles and
values set forth in our Constitution, where the
fundamental rights acquire their own substantive
nature (Art. 10.1 CE) [DTC 1/2004, of 13
December, Ground 2].
Likewise, the primacy of European Union law,

jurisdictionally proclaimed, is applied to the
European legal order, which is constructed upon
common values of the European Union Member
States Constitutions and their constitutional
traditions, leading us to point out that it is
European law which would guarantee, through a
series of devices foreseen in the Treaties, respect
for basic constitutional structures in each country,
to include fundamental human rights (DTC
1/2004, of 13 December, Ground 3).
As a result, the Court stated that After the

integration, emphasis must be placed on the fact
that the Constitution is no longer the framework
of validity of Community legislation, but rather
the Treaty itself, which carried out the sovereign
operation of transfer of the exercise of
competences resulting from the former, although
the Constitution requires that the legislation
accepted as a result of the transfer be compatible
3. Before determining the content of the right to a

fair trial deploying ad extra effects, we should
however complete the response given in the
Judgment of the European Court of Justice
delivered in the Melloni case, with the criteria
laid down in our Declaration [in Spanish:
(2016) 1 LAW
44
(2016) 1 LAW
F-27
the guarantees established by Article. 24 of the Spanish

Constitution, but only those contents that constitute the
very essence of the notion of fair trial and that, as
with its basic values and principles. (DTC

1/2004, of 13 December, Ground 2).
Consequently, this Court is not entitled to check
such, can be used in the assessment of the

conduct of foreign public authorities, determining
if necessary the indirect unconstitutionality of
the Spanish authorities which, in fact, is the only
object of our control (STC 91/2000, of 30 March,
the validity of the law adopted by European institutions;

this control should be, in any case, carried out by the
European Court of Justice when settling, amongst
others, any preliminary rulings on validity that may
eventually be raised. It is basically through these
FFJJ 7 and 8).
procedures, including preliminary rulings on

interpretation, that the European Court of Justice
guarantees and effectively safeguards a high level
of protection for the fundamental rights contained
in the Charter.
Notwithstanding, the Constitutional Court also
upheld that In the unlikely case where, in the
ulterior dynamics of the legislation of the
European Union, said law is considered
irreconcilable with the Spanish Constitution,
without the hypothetical excesses of the European
legislation with regard to the European
Constitution itself being remedied by the ordinary
channels set forth therein, in a final instance, the
conservation of the sovereignty of the Spanish
peopleandthegiven supremacy of the Constitution
could lead this Court to approach the problems
which, in such a case, would arise. Under current
circumstances, said problems are considered
inexistent through the corresponding constitutional
procedures. (DTC 1/2004, of 13 December, Ground 4).
4. In order to resolve this amparo appeal we must take
In the STC 91/2000, of 30 March, above

mentioned, we reached the conclusion that an
indirect breach of the requirements stemming from
the right proclaimed in Article 24.2 of the Spanish
Constitution projected ad extra will arise if the
Spanish courts decide to order an extradition to
countries where, in cases of a very serious offence,
convictions in absentia are upheld without conditioning
surrender to the convicted party being able to challenge
the conviction in order to safeguard his rights of
defence. In our opinion, this would be detrimental to
the essential content of a fair trial, in such a way as to
affect human dignity (STC 91/2000, of 30 March, FJ 14).
In subsequent Judgments (STC 177/2006, of 5

June, or STC 199/2009, of 28 September), we
have stated that this approach to indirect
infringements of the right to a fair trial is
also applicable under the EAW system which
replaces the extradition procedure foreseen in the
1957 European Conventionon Extradition, in
compliance with the Council Framework
Decision 2002/584/JHA, of 13 June, already
implemented into Spanish law, by Law 3/2003, of
14 March, on European Arrest Warrants.
After having referred to our case-law on
indirect infringements of fundamental rights and
its specific application to a fundamental right to a
fair trial, we must overrule [overview] the way how
this Court has construed the notion absolute
contents of the right to a fair trial (Article 24.2
of the Spanish Constitution).
In order to [assess] the specific rights, faculties
or facets contained in the absolute contents of a
fundamental right, whose infringement may
determine an indirect violation of that very right
by the Spanish public authorities, we have
highlighted the decisive relevance of international
treaties and agreements on the protection of
into consideration our previous decisions concerning

indirect infringements of fundamental rights and their
specific application to the scope of fundamental rights
as regards the right to a fair trial, regulated in
Article. 24.2 of the Spanish Constitution.

According to our case-law, when national
authorities (including the Judiciary) recognise,
certify or validate a resolution adopted by a
foreign authority, this may indirectly breach a
fundamental right subject to special protection by
amparo appeal. The Spanish public powers are
unconditionally bound ad intra by fundamental
rights as enshrined in the Constitution , but the
binding content of fundamental rights when
projected ad extra is more limited. Thus, regarding
to the right to a fair trial, its content does not include all
45
F-28
when effectively informed of the proceedings of an

unequivocal waiver of their right to be heard [ECtHR
fundamental rights and public freedoms, ratified

by Spain (STC 91/2000, of 30 March, FJ 7). As a
result, this Court has stated that the constitutional
Judgment Sejdovic v. Italy, 1 March 2006, paragraphs

82 ff.].
value system coincides with the values and interests

protected by such treaties and agreement, thereby,
Thus, European Court of Human Rights caselaw has acknowledged that the presence of the
allowing us to determine the most elementary

requirements that may be projected on a valuation
of the conduct of foreign public powers,
determining the indirect unconstitutionality of the
defendant in the hearings is one of his basic rights, but

Article 6 ECHR is not breached if the defendant, after
being duly summoned, freely decides to waive his
hearing at the trial, and, as long as, throughout these
proceedings he is counselled by a Lawyer to defend his
interests. According to the European Court of
conduct of the Spanish authorities.
Thus, according to our case-law relating to

indirect infringements of the right to defence and to a
fair trial (Article 24.2 of the Spanish Constitution), the
Human Rights case-law, the fact that the

defendant, in spite of having been properly
summoned, does not appear, cannot even in the
absence of an excuse justify depriving him of
his right ... to be defended by counsel. (ECtHR
standard of control applicable to examine the

constitutionality of the Order delivered by the
First Section of the Criminal Chamber of the
Audiencia Nacional, dated 12 September 2008,
which authorised the surrender of the appellant to
the Italian authorities, should include any
international treaties and agreements on the
protection of fundamental human rights and
public freedoms, ratified by Spain. Amongst
these treaties, we may emphasize the importance
of the Convention for the Protection of Human
Rights and Fundamental Freedoms (hereinafter,
ECHR), and the Charter, which, along with the
interpretation thereof by the supervising bodies
established by these same international treaties
and agreements, become essential when
interpreting the absolute contents of the right
proclaimed in Article 24.2 of the Spanish
Constitution. Unawareness of these contents
would cause indirect breach of this fundamental
right by the Spanish courts.
Consequently, we must analyse the
Judgment Pelladoah v. the Netherlands, of 22

September 1994, paragraph 40; mutatis mutandi,
Judgments Poitrimol v. France, of 23 November 1993,
paragraph 35; Lala v. the Netherlands, of 22
September 1994, paragraph 33; Van Greyseghem v.
Belgium, of 21 January 1999, paragraph 34).
On the other hand, the European Court of

Justice has stated that Regarding the scope of the
right to an effective judicial remedy and to a fair
trial provided for in Article 47 of the Charter, and
the rights of the defence guaranteed by Article
48(2) thereof, it should be observed that, although
the right of the accused to appear in person at his trial is
an essential component of the right to a fair trial, that
right is not absolute (see, inter alia, Case C 619/10
Trade Agency [2012] ECR I 0000, paragraphs 52

and 55). The accused may waive that right of his free
will, either expressly or tacitly, provided that the waiver
is established in an unequivocal manner, is attended by
minimum safeguards commensurate to its importance
and does not run counter to any important public
interest. In particular, violation of the right to a fair
trial has not been established, even where the accused
did not appear in person, if he was informed of the date
and place of the trial or was defended by a legal
counsellor to whom he had given a mandate to do so.
interpretation of the contents of the right to a fair trial

made by the European Court of Human Rights and the
European Court of Justice, established in the ECHR
and in the Charter.

According to ECHR, the right to a fair trial, laid
down in Article 6, includes the right of any person
convicted in absentia to have the court issue another
decision on the merits of the case, after hearing the
defendant. However, the inclusion of this right within
the one regulated in Article 6 ECHR has been
conditioned, in the case-law of the European Court
of Human Rights to the absence by such persons
(2016) 1 LAW
[Judgment of 26 February 2013, C-399/11, Melloni,

paragraph 49]
So, the European Court of Human Rights has

construed the right to a fair trial, proclaimed in
Article 6 of the ECHR in a way largely
coincidental with the interpretation given by the
46
(2016) 1 LAW
European Court of Justice of the rights to an

effective judicial protection, to a fair trial and
defence, regulated in Articles 47 and 48.2 of the
Charter. Their interpretations are hermeneutic criteria
F-29
the appellant to the Italian authorities has not

incurred in an indirect violation of the
fundamental right to a fair trial, because it has
been proved that the defendant had legal defense
and had voluntarily waived his right to be heard.
For all the reasons previously stated, and given
that what is being discussed in this amparo appeal
is whether the surrender authorised did or did not
constitute an indirect breach of the right to a
fair trial (Article 24.2 of the Spanish
Constitution), this Court hereby rejects this appeal,
we must use to define the absolute contents of the

fundamental right to a fair trial which deploys ad extra
effects. In other word, they help to define those
rights and guarantees which, if not upheld by

foreign authorities, may cause an indirect
infringement when surrender is agreed by the
Spanish public powers.
Consequently overruling the doctrine laid
down in STC 91/2000 and state that a conviction in
insofar the First Section of the Criminal Chamber of the

Audiencia Nacional, in its Order of 12 September 2008,
decided to surrender Mr. Stefano Melloni without
infringing the requirements derived from the absolute
content of this fundamental right.
absentia does not involve an infringement of the

absolute contents of the fundamental right to a fair trial,
even if there is no remedy for the absent defendant,
when this absence has been voluntarily and
unambiguously decided by a defendant who was duly
summoned, and has been effectively defended by an
appointed Lawyer (Article 24.2 of the Spanish Constitution).
RULING
For all of the above, the Constitutional Court, BY
THE AUTHORITY CONFERRED BY THE
CONSTITUTION OF THE SPANISH NATION,
Has decided
To reject this amparo appeal.
Therefore, we shall reject this appeal since the

judicial body (Audiencia Nacional), pursuant to
Article. 12 of Law 3/2003, of 14 March,
considered that none of the situations had arisen
that could hinder surrender of the convicted party
in absentia to the Italian State and, consequently,
it was not necessary to require additional guarantees
from the Italian authorities. This conclusion was
reached after examining an entire series of files
(the complementary report requested from the
Public Prosecution Service of the Italian
Republic, the arrest warrant and the
documentation provided by the now appellant
himself). From the review of that documentation
resulted: on the one hand, that there was no
evidence that the Lawyers appointed by the
defendant had stopped representing him since
2001; and, on the other hand, that there was no
lack of defence, given that the defendant, aware
that a hearing was to be held, voluntarily incurred
in absence. Moreover, the defendant had
designated two lawyers of his choice for his
representation and defence, who acted as such at
first instance, on appeal and on cassation, thereby
exhausting all appeal channels. In light of the
foregoing, the Order issued by the Audiencia
Nacional allowing the unconditional surrender of
Let this Judgment be published in the Official State

Gazette.
This Judgment was handed down in Madrid, on

February, 13th 2014.
***
Concurrent Opinion of the Judge Ms. Adela
Asua Batarrita in relation to the Judgment
delivered in the amparo appeal no. 6922-2008.
According to the right granted to me under
Article 90.2 of the Organic Law of the
Constitutional Court, and with my utmost respect
for the opinion of the majority of the Court,
I hereby explain why I disagree with the legal
grounds of the Judgment, according to the
arguments I upheld during the Chambers
discussion.
I would like to point out that my disagreement
does not refer to rejection of the amparo appeal which
I totally agree with but to the legal grounds of the
Judgment, both due to what it states and to what it
omits. I will begin by stating what, in my opinion,
is ignored and omitted by the Judgment (1), to

47
F-30
later explain the reasons for my disagreement

with what it implicitly does state (2) and, finally,
to explain my disagreement with what the
Judgment actually does (3).
1. The Judgment that resolves this amparo appeal
was preceded, as is well known, by the
application for our first preliminary ruling before
the European Court of Justice. This was a
milestone in the history of the Constitutional
Court of Spain, and has been subsequently
followed by other European constitutional courts.
and it is not a
Constitutional Courts task to guarantee the
application of EU law, and that EU law is only
relevant from the perspective of Article 10.2 of
the Spanish Constitution, that only refers to the
interpretation of the constitutional fundamental
rights scope.
Thus, the Judgment adopted by the majority does
constitutionality
standard,
not take advantage of the opportunity to reflect and

establish the important transformations the Courts
jurisdictional task has undergone, as a result of EU
membership, including the constitutional processes
whereby the Constitution is rendered pre-eminent. In
A direct dialogue between the European Court of

Justice and the national constitutional courts is worthy
of celebration, in the sense that this dialogue will
gradually help to construct a common European
constitutionalism. Furthermore, the European Court
particular, it does not discuss the implications of

the European Court of Justices considerations in
this Judgment of 26 February 2013 on the
meaning of Article 53 of the Charter about
relations between national and EU system, and
relations between the different Constitutional
Courts.
In order to carry out a reflection on the matter,
of Justice Judgment of 26 February 2013, which

replied to our preliminary ruling, encloses crucial
aspects for the future articulation of fundamental
rights protection systems in the European Union.
Consequently, I consider that this Judgment
provided an excellent opportunity to continue
with this dialogue to specify the relevance of the
fundamental rights acknowledged in the
European Union, not only within the scope of the
Spanish Constitution but also in terms of the
the Court should have begun by placing the Melloni

Judgment within the broader scope of recent European
Court of Justice case-law, taking into account other
important pronouncements, such as the Judgment
delivered by the Grand Chamber also on 26

February 2013, Akerberg Fransson case, or the
subsequent Judgment of 30 May 2013, delivered
in reply to a preliminary ruling requested by the
French Conseil Constitutionnel in a matter also
related to the European arrest warrant, but which
was not totally harmonized.
2. Moreover, I believe that references contained
in Ground 3 resolving the amparo appeal are
totally unnecessary and inconsistent in relation to
the finally adopted resolution.
Ground 2 of the Judgment refers to the terms
of the preliminary rulings in our Order 86/2011,
as well as the response given by the European
Court of Justice in its Judgment of 26 February
2013. Immediately after that, Ground 3 starts
stating that, before determining the absolute
contents of the fundamental right claimed by the
applicant, We should however complete
[complement?] the response given by the European
Court of Justices Judgment with the case-law at
Courts jurisdictional function as the guarantor of the

Constitutions supremacy, which is partly conditioned
by the case-law laid down by the European Court of
Justice in fundamental rights matters.
Constitutional Court Order 86/2011, of 9 June,

had justified the request for a ruling on
interpretation of Article 53 of the Charter of
Fundamental Rights of the European Union (the
Charter), on which the European Court of Justice
had not yet issued a decision; that said provision
declares it was truly essential in order to clarify
the scope and mission of fundamental rights
protection systems in the European Union, as
well as its articulation with respect to the
declarations of rights contained in Member State
Constitutions (FJ 7).
However, the Judgment adopted by the majority
ignores these central issues and, instead, aligns itself
with precedent case-law, which had been reiterating
that European Union law does not cover our
(2016) 1 LAW
48
(2016) 1 LAW
the time laid down by the Spanish Constitutional

Court in our Declaration 1/2004, of 13
December. I do not understand why this Court
has to complete [compliment?] the European Court
of Justices Judgments delivered by preliminary
rulings at our request, or at the request of any
other European Union judicial authorities. Then,
Ground 3 makes several generic affirmations
without providing an accurate explanation of their
purpose or utility in relation to this amparo
appeal; but I am concerned about the fact that
F-31
EU law application scope. If I read Ground 3

correctly, the Judgment adopted by the majority
would be implicitly stating its rejection of the EU law
primacy, which the European Court of Justice has
again precisely confirmed in Judgment of 26

February 2013. All the citations of the
Declaration 1/2004 included in Ground 3 suggest
the same, as they highlight the limits of Europes
integration. Acceptance of the primacy of EU law
primacy which is reiterated up to three times in
different ways is conditioned to respect for Spanish
Ground 3 content, context and tone may be interpreted

as an implicit resistance to assume the European Court
of Justice Judgment of 26 February 2013, specifically
the response given to our third question.
Constitution basic principles and values.
Answering that question, the European Court

of Justice has stated that Article 53 of the Charter
does not allow Spain to apply a level of
protection higher than the one foreseen by the
Charter in a subject the European arrest warrant
regulated by European Union common rules.
Consequently (taking into account that it is
materialized in that way in the legal arguments of
the Judgment), the European Court of Justice
rejects outright our interpretation included in the
question, upheld by the Constitutional Court
Order: Article 53 of the Charter does not permit
Member States to apply a higher level of
protection within the Charter scope (which is it
the application of EU law scope).
Constitutional Court Declaration 1/2004 about
the compatibility between the Constitutional
Treaty and the Spanish Constitution, upheld the
compatibility of the Charter with the Spanish
Constitution, among other reasons, referred to an
reinterprets and clarifies the absolute contents of

the fundamental right affected in Ground 4), the
In my opinion, it is inconsistent that, in a matter

where there is no compatibility with EU law and the
Spanish
Constitution
(the Judgment itself
unconditional European Union law primacy is now
called into question, in relation to domestic law,
emphatically referring to its limits. A reiteration

of these limits may suggest that a deep conflict
exists between both legal orders, but this is not
indicated by our case-law, nor do I believe it to
be the majority opinion of the Court.
Ground 3 does not end there. I also criticize
European Court of Justice case-law, by reminding
the necessity to guarantee and effectively
safeguard a high level of protection for the
fundamental rights contained in the Charter
(emphasis added). If this was the underlying
purpose of these words, I totally disagree with it.
This Court should not remind European Court of
Justice of the necessity to effectively guarantee
fundamental rights, or to do so with a high level of
protection. Each jurisdiction should apply its own rules
on the protection of fundamental rights, with the
consequent level of protection; it cannot and should not
guarantee a higher level of protection than the one
enshrined in said rules, let alone a level of protection
that exactly coincides with the one provided by each
Member State Constitution. Without a doubt, it is
interpretation of Article 53 of the Charter that has now

been flatly rejected by the European Court of Justice.
The Judgment, consequently, by completing the

response given by the European Court of Justice
with the case-law at the time laid down by the
Spanish Constitutional Court in our Declaration
1/2004, of 13 December, seems to be suggesting
bound by an explicit or implicit mandate to

optimize the rights acknowledged, but this is not
the same as applying a high level of protection,
which may collide with other rights or other
constitutional values and purposes and, even with
constitutional guarantees recognised in some
Member States.
that it does not accept the response to the third question

provided by the European Court of Justice, and that the
Constitutional Court is entitled to apply a level of
protection that is eventually higher than the one that
may arise from the Spanish Constitution further to the
49
F-32
to protect and interpret the fundamental rights

recognised within the European Union.
The critical perspective to European Court of

Justice is real and not only my suspicion, and it is
accredited by the paragraph that follows, which
fully reproduces the admonishment given in the
Constitutional Court Declaration 1/2004, saying
that in the case of excess conduct not remedied by the
In fact, in response to the preliminary rulings

raised in our Order 86/2011, the Judgment of 26
February 2013 declared that the conditions to
execute a European arrest warrant are harmonized in
EU law and, consequently, it is not possible to apply a
higher level of protection derived from domestic law,
but only the level of protection of fundamental rights
recognised in Articles 47 and 48.2 of the Charter.
European Court of Justice, the supremacy of the

Constitution would oblige the Constitutional Court to
handle this excess. I sincerely do not understand
why, in a case where no conflictive interpretation

problem nor contradiction with a constitutional
rule apparently arise, the Court reiterates and
refers to the doctrine laid down in the Declaration
1/2004 for hypothetical and unlikely cases where
the Spanish Constitution is incompatible with the
future dynamics of EU law. If the majority of the
Court considers that this was in fact the case, it
should have argued the matter in a clear and
straightforward manner; but if this was not the
case, this admonishment was unnecessary.
In short, in my opinion, the Judgment should have
The response given by the European Court of

Justice to our preliminary rulings could be used to
integrate, through Article 10.2 of the Spanish
Constitution, our standard about the absolute contents
of the fundamental right to a fair trial (Article 24.2 of
the Spanish Constitution), in cases not related to the
application scope of European Union law. However,
in cases such as the one at hand, which fully examine
the application scope of EU law, it cannot be used
as a hermeneutic criterion freely applied, along with
others, in order to specify ex Article 10.2 of the Spanish
Constitution, the absolute contents of this fundamental
right. By contrast, it provides the standard
excluded Ground 3 entirely, because it ultimately

suggests that this Court is somehow dissatisfied with the
response given by the European Court of Justice.
applicable further to Article 93 of the Spanish

Constitution as a result of being part of the
European Union: regulations on the execution of
3. In order to resolve this amparo appeal, the

Judgment adopted by the majority proceeds in
Ground 4 to reinterpret further to Article 10.2
of the Spanish Constitution the absolute
contents of a fundamental right to a fair trial,
respectfully with the interpretation made until
then by the Spanish Constitutional Court. In my
opinion, this interpretation returns to the
traditional position of the Constitutional Court
criticized in various fields which take for
granted that Article 10.2 of the Spanish
Constitution
exclusively
justifies
the
effectiveness of fundamental rights recognised
within the European Union. This is not consistent
with the application itself of our three preliminary
rulings about the validity and interpretation of
several European rules that are relevant to resolve
the amparo appeal; it is particularly not consistent
with the content of the responses given by the
European Court of Justice. Both the filing of our
European arrest warrants are totally harmonized, so

only European Union fundamental rights should
exclusively be applied. In this case, the fundamental
rights recognised in Articles 47 and 48 of the

Charter, have been specifically interpreted, at our
request, by the European Court of Justice in its
Judgment of 26 February 2013.
In other words, the legal reasoning to apply cannot
consist in a domestic rule, such as Article 24.2 of the
Spanish Constitution, although it has been interpreted
via Article 10.2 of the Spanish Constitution, according
to what the European Court of Justices

declarations on the matter; the foregoing should
consist of fundamental rights recognised by the
EU, as it has been interpreted by the European
Court of Justice. These EU fundamental rights should
be applied under Spanish jurisdiction taking into
account the EU law primacy, as the Constitutional
Court has already recognised in Declaration

1/2004 (Ground 4) and, furthermore, with respect
to what rhetorical Ground 3 of the majority
Judgment implies, there is no discrepancy with
preliminary rulings and the European Court of Justices

response agree on one point: European Court of
Justices exclusive and excluding jurisdiction recognised
(2016) 1 LAW
50
(2016) 1 LAW
the level of protection we consider is extended ad

extra by Article 24.2 of the Spanish Constitution.
4. For the reasons set out herein, I consider
F-33
other cases. According to previous resolutions by

the Court, when in absentia convictions are concerned,
Spain has acknowledged a higher standard of protection
of the right of defence than the one established in said
regulations (without prejudice to thoroughly
unsatisfactory the legal reasoning of the Judgment

adopted by the majority. This legal reasoning may
encourage the idea that the Constitutional Court does
not recognise the EU law primacy and that the Court
adopts a defensive approach to its legal autonomy
against EU law, evading the EU law primacy with
interpretations it believes may be controlled under
Article 10.2 of the Spanish Constitution. The idea that
examining other Brussels regulations that affect

the standards of protection of fundamental rights
in family matters, to specifically include Articles
8 and 12 of the Convention for the Protection of
Human Rights and Fundamental Freedoms).
The case that has been brought to this Court
has been ongoing for some time. As gleaned from
the Background Facts of this Judgment, the Court
decided to apply to the European Court of Justice
for three preliminary rulings, in ATC 86/2011, of
9 June. In an apparently straightforward
Judgment of the European Court of Justice, dated
26 February 2013, a crucial matter in this case
and for the near future is examined: the relations
between Constitutional Courts of the Member
States and the European Court of Justice, the
supreme body of the European jurisdiction,
according to Article 19.1 of the European Union
Treaty, which provides that the Court of Justice
will guarantee that the law is upheld when
interpreting and applying the Treaties (see also
Articles 251 ff. of the Treaty on the Functioning
of the European Union).
Specifically, paragraph 59 of the European
Court of Justice Judgment of 23 February 2013
states as follows: It is settled case-law that, by
the Constitutional Court does not apply EU rights

but fundamental rights of the Spanish Constitution
albeit adequately interpreted in order to
perfectly coincide with the level of protection
recognised in the EU still remains unreal and
hardly convincing.
Madrid, on 13 February 2014.
***
Concurrent Opinion of the Judge Ms. Encarnacin
Roca Tras in relation to the Judgment delivered in
amparo appeal no. 6922-2008.
1. With my utmost respect for the opinion of the

majority, I hereby issue my Concurrent Opinion
on the Judgment which has rejected the amparo
appeal lodged by Mr. Stefano Melloni.
The heart of the matter in the Melloni case is that
the Constitutional Court of Spain, when protecting the
right of defence, has been requiring in presentia
convictions; otherwise, in order to surrender the alleged
criminal requested to the country where proceedings
was underway, a new trial, this time in presentia, should
be guaranteed. However, the EAW, whereby Italy is
requesting that Spain immediately surrender Mr.
Melloni, convicted in absentia, though represented by
his lawyers, does not accept this requirement and
prevents a European country from refusing to
surrender the convicted party in these circumstances.
virtue of the principle of primacy of EU law, which is an

essential feature of the EU legal order (see Opinion
1/91 [1991] ECR I-6079, paragraph 21, and

Opinion 1/09 [2011] ECR I-1137, paragraph 65),
rules of national law, even of a constitutional order,
cannot be allowed to undermine the effectiveness of EU
law on the territory of that State (see, to that effect,
The framework decision that implements the

EAW procedure just follows the path already
taken in other aspects of EU law, as in the
enforcement of decisions related to family
matters,
divorce,
parental
responsibility,
maintenance, succession, European titles, etc.
Nevertheless, the Framework Decision on the
European arrest warrant is not equivalent to these
inter
alia,
Case
11/70
Internationale
Handelsgesellschaft [1970] ECR 1125, paragraph
3, and Case C-409/06 Winner Wetten [2010]
ECR I-8015, paragraph 61). Although the
Judgment allows exceptions in accordance with
Article 53 of the Charter, the decision states that
Article 4a(1) of Framework Decision 2002/584 does not
allow Member States to refuse to execute a European
51
F-34
of Justice has delivered this resolution at the

Spanish Courts request, as a result of the
filing of a preliminary ruling, but because the
Constitutional Court has legitimately reconsidered
its prior doctrine. Thus, the Constitutional Court in
arrest warrant when the person concerned is in one of

the situations provided for therein, consequently,
the scope of the EAW, which effects a

harmonisation of the conditions of execution of a
European arrest warrant in the event of a
conviction rendered in absentia, which reflects
the consensus reached by all the Member States
allowing a Member State to avail itself of Article 53 of
full bench, despite fulfilling the European standard,

adds ambiguity to truly important issues that do not
benefit the logic underlying the European Union, which
is based on the principles of loyalty and loyal
cooperation, primacy and subsidiarity of EU law within
the scope of its competences, and respect for reciprocal
constitutional identity.
the Charter to make the surrender of a person convicted

in absentia conditional upon the conviction being open
to review in the issuing Member State, a possibility not
provided for under Framework Decision 2009/299, in
In my opinion, this means of collaboration, which

began with the filing of preliminary rulings, should have
ended with a respect for the aforementioned principles,
particularly the principles of primacy, unity and
effectiveness of European law, contained in the Charter.
order to avoid an adverse effect on the right to a

fair trial and the rights of the defence guaranteed
by the constitution of the executing Member
State, by casting doubt on the uniformity of the
standard of protection of fundamental rights as
defined in that framework decision, would
To acknowledge each Courts task, when

upholding each ones competences, also helps the
actual effectiveness of the so-called dialogue
between the Courts. In the scope of EU law and
after ascertaining that there was no breach of the
national Constitution, explained below it should
undermine the principles of mutual trust and

recognition which that decision purports to uphold and
would, therefore, compromise the efficacy of that
framework
decision.
(Judgment
Melloni,
paragraphs 61, 62 and 63).

2. For the first time, the Constitutional Court of
Spain was facing the execution of a decision
delivered by the Court of Justice which, further to
its competence and as a result of the filing of
three preliminary rulings, required a standard of
protection for the right of defence in EAW
proceedings that was less than the one held until
now. I should say that although I share the ruling
of the Judgment refusing to grant constitutional
protection where a request was made to apply
the standard followed by the Court until now
I disagree with the legal reasoning on which it
justifies this overruling.
In fact, I cannot accept that a change in
consolidated case-law, laid down by this Court
when interpreting Article 24.2 of the Spanish
Constitution since STC 91/2000, of 30 March,
should not arise as a result of the European Court
of Justice Judgment of 26 February 2013
(Melloni case), which interprets the conditions to
execute a EAW delivered in absentia, despite
procedural representation of the accused; leaving
out by the Spanish Court that the European Court
(2016) 1 LAW
be applied based on arguments that conform to

Europes reality.
As Mr Pedro Cruz Villaln stated in his

Concurrent Opinion to STC 91/2000, of 30
March, FJ 4, indirect infringements should be
significantly played down in the case of States which, for
half a century, have belonged to the same community of
rights and freedoms. As regards rights,
furthermore, one cannot ignore the binding nature

granted by Article 6.1 of the European Union
Treaty to the European Charter of Fundamental
Rights (see the Concurrent Opinions issued by
Mr. Jorge Rodrguez-Zapata Prez and Mr. Pablo
Prez Tremps, in STC 199/2009, of 28
September).
Thus, and with even more reason now given
the new European scenario we are currently in,
the Spanish Constitutional Court in full bench should
have based its decision to lower the standard within
Europe which until then applied for the extradition
from the perspective of these informative principles.
Bear in mind that this is a new standard of

protection of the right of defence, further to
Article 24.2 of the Spanish Constitution, which
52
(2016) 1 LAW
the Court had established, amongst other

decisions, in STC 91/2000, of 30 March, and
which was agreed by European countries
(Framework Decision 2002, subsequently
amended by Framework Decision 2009/299),
including Spain, greatly by its request.
3. Article 2 of the Treaty of Lisbon provides that
the Union is founded on the values of respect for
human dignity, freedom, democracy, equality, the
rule of law and respect for human rights The
prevalence of EU law generates new issues when
fundamental rights are concerned. In this regard,
there are resolutions delivered by the European
Courts that deny European integration to be
detrimental to the fundamental rights of their
national citizens. Thus, the doctrine refers to
Italian Judgments of 27 December 1973 (Frontini
case), 8 June 1984 (Granital case) and 21 April
1989 (Fragd case). Particularly relevant is the
Judgment of the German Constitutional Court
(Bundsverfassungsgericht), known as Solange I
(29 May 1974), which affirmed that insofar as
the European Communities did not have a
catalogue of fundamental rights, any national
judge, after applying for a preliminary ruling to
the Court of Justice, could address the
Constitutional Court if the response given was
not convincing; the Court, however, in the case
known as Solange II (22 October 1986), stated
that insofar as the European Communities
provide general effective protection for
fundamental rights vis--vis national sovereignty,
the Court would not be entitled to examine
whether the fundamental rights acknowledged in
German law conformed to EU law.
The European Constitutional Courts have used two
F-35
decision of the French Constitutional Court of 29

October 2004 and the Judgment of the European
Court of Justice Bosphorus, of 30 June 2005).
The second one consists of the so-called minimum
standard of protection. This principle was
somewhat upheld in our Declaration 1/2004, of
13 December, which indicated that it is clear
that the Charter is conceived, in whatsoever case,
as a guarantee of minimums on which the content
of each right and freedom may be developed up
to the density of content assured in each case by
internal legislation. It also stated that In the
unlikely case where, in the ulterior dynamics of
the legislation of the European Union, said law is
considered irreconcilable with the Spanish
Constitution, without the hypothetical excesses of
the European legislation with regard to the
European Constitution itself being remedied by
the ordinary channels set forth therein, the Court
would ultimately rule in favour of the sovereignty
of the Spanish people and the supremacy of the
Constitution, through the relevant constitutional
procedures.
As stated in the Concurrent Opinion issued by
Mr. Pablo Prez Tremps in the STC 199/2009,
First paragraph, as part of the common
fundamental rights culture applied by European
Union Member States, an equivalent protection
of these rights does not mean, or should entail, a
merely formal equivalence, but also entails the
acceptance of the sufficiency of substantive
guarantees offered and the controlling devices
foreseen (European Court of Justice Decision
Bosphorus v. Ireland, of 30 June 2005, 155),
crowned in any case, as already indicated, by the
work of the European Court of Human Rights.
This equivalence and sufficiency principle in
protection terms is particularly clear and
enforceable within the European Union, which
only becomes clear as a political and legal project
when there is an underlying legitimate trust in
Community institutions and other Member
States.
4. However, as above stated,, the Judgment
delivered by the majority merely reconsiders albeit
standards to examine a hypothetical conflict between

the prevalence of European law and the domestic
constitutional protection of fundamental rights
acknowledged in each Constitution. The first is based
on the German decision Solange II, establishing the
equivalent protection doctrine: in the case of rights
acknowledged within Europe (albeit not by the
Convention for the Protection of Human Rights

and Fundamental Freedoms), national courts should
not examine any hypothetical conflict (see the
53
F-36
legitimately our prior doctrine. Consequently, it

indicated that, at the bottom, always underlies
this type of situation, where two competent
Courts the European Court of Justice and this
Constitutional Court coincide within Europe,
without forgetting the European Court of Human
Rights, which is not applicable here: the
protection of the Constitutional Courts
jurisdiction within the scope of fundamental
rights. But, above all, given the absence of a clear
recognition of the European Court of Justices
competence on this matter which, however, is
accepted in the case of preliminary rulings not
only are matters ignored which I consider
fundamental to understand the logic behind the
European Union, but also lead to conclusions that
I disagree with. Certainly, from the moment the
Court of Human Rights, as required by Article

52.3 of the Charter of Fundamental Rights of the
European Union. Nevertheless, although said
limits are not expressly included in Article 93 of
the Spanish Constitution, I believe it may be
understood as this Court stated at the time in
Declaration 1/2004, of 13 December, Ground 2
that they implicitly arise from the Constitution
and from the essential meaning of the precept,
and are understood as the respect for the
sovereignty of the State, or our basi constitutional
structures and of the system of fundamental
principles and values set forth in our Constitution,
where the fundamental rights acquire their own
substantive nature (Article 10.1 of the Spanish
Constitution).
I hereby corroborate, except for any obvious
regulatory differences, what Judge Pedro Cruz
Villaln said in his Concurrent Opinion to the
STC 91/2000: I believe that an examination of
European Charter of Fundamental Rights was

incorporated into EU law and, according to Art. 6.1
of the European Union Treaty, is given the same
legal value as treaties, competences overlap on the
same matter. As a result of Spains adhesion to the
European Economy Community, in 1985, this
Constitutional Court has not lost any jurisdiction in the
protection of fundamental rights, but insofar as there are
rights protected within Europe, as a result of
incorporation of the Charter into European law, we
should examine our competence when applying these
fundamental rights. This has led the Court to uphold
the absolute content of the right of defence (Article 24.2

of the Spanish Constitution) is unnecessary if a
supranational rule exists, which does not generate
any constitutionality doubts and specifically

covers the extradition of convicted parties in
default further to the European Extradition
Convention, Art. 3.1 of its Second Additional
Protocol, ratified by Spain with no reservations
whatsoever (Paragraph 4). This affirmation is
even more relevant here: the present case does not
certain decisions of the European Court of

Justice, particularly when applying the principle
of equal treatment (see SSTC 41/2013, of 14
February, and 61/2013, of 14 March).
Consequently, in my opinion, after
ascertaining that the Judgment of the European
Court of Justice was delivered within the scope of
its competence and that an interpretation of the
requirements derived from Articles 47 and 48.2
of the European Charter of Fundamental Rights
established in the Judgment of the European
Court of Justice of 26 February 2013 did not
affect the substantive limits of the Constitution,
involve an International Treaty for the purposes of

Article 10.2 of the Spanish Constitution, but a system
included as a result of the assignment of

competences carried out through Article 93 of the
Spanish Constitution.
5. The Judgments reasoning begins by referring
to the aforementioned Decision 1/2004 (see
Ground 3), which, it claims, should be used to
complete the response given by the Court of
Justice. This is an affirmation which, given the
absence of any explanation, does not merit
any consideration whatsoever. Nevertheless, I do
consider it pertinent that the use of the hermeneutic
criteria of aforementioned Declaration should be
applied in the understanding that this Declaration
dealt with a text, the non nata European
this Court should have openly applied the common

standard established by the European Court of Justice,
particularly when, according to the Judgment

I disagree with it is clear that the European Court
of Justice upholds the case-law of the European
(2016) 1 LAW
54
(2016) 1 LAW
Constitution, which is not the one that is currently

in force. I will add that the Court has not had the
chance to pronounce itself on the Treaty of
Lisbon, as it may only do so at a partys petition
and that the Treaty was signed without
reservations. Having said this, certainly the
Judgment, after referring to certain extracts of
Declaration 1/2004, particularly on the Courts
work when facing a hypothetical incompatibility,
is silent on a fundamental issue: the absence of all
constitutionality doubts. Consequently, albeit by
omission, it may be concluded that the Court in
full bench considers that the Judgment of the
European Court of Justice does not exceed the
limits at the time imposed by this Court, in light
of the ratification of the European Constitution,
an opinion that I also share.
After transcribing several paragraphs of the
Judgment of the European Court of Justice, which
are not applicable to the case, the majoritarian
Judgment merely states that this Court is not
entitled to check the validity of the law adopted
by European institutions; this control should be,
in any case, carried out by the European Court of
Justice when settling, amongst others, any
preliminary rulings on validity that may
eventually be raised. It is basically through these
procedures, including preliminary rulings on
interpretation, that the European Court of Justice
guarantees and effectively safeguards a high level
of protection for the fundamental rights contained
in the Charter. This high level of protection,
F-37
This
apparently
innocuous
reasoning,
however, does in fact have consequences, in my
opinion, resulting from issues that are not
adequately resolved in the Judgment.
6. In effect, when the Judgment renders the two
standards of protection European Court of
Justice and European Court of Human Rights
equivalent, it questions principles that I consider
basic for the construction of Europe. This Court
should have based the decision on these
principles, thus encouraging an effective not
merely apparent dialogue between the Courts,
once it was confirmed in Ground 3 albeit by
omission that there was no conflict with the
Spanish Constitution. The foregoing may be
explained for the following reasons:
a. First of all, EU law does not act as
international law in the territory of
Member States; decisions are not of the
European Union, but of the members
belonging to Community bodies and the
European Parliament, which is why
Regulations are immediately effective in
national legal orders. The States have
assigned part of their sovereignty to the
European Union, which is why Article 93
of the Spanish Constitution provides:
Organic Acts may be enacted to
authorise the conclusion of treaties that
entrust an international organization or
institution the exercise of competences
derived from the Constitution. The
Cortes Generales (National Parliament)
or the Government, as the case may be,
should ensure compliance with these
Treaties and any resolutions delivered by
international or supranational bodies
enjoying this assignment. This is a
fundamental article for the present case.
b. As regards the application of EU law, the
content of fundamental rights is
determined by its rules and by the
interpretation made thereof, and of the
Charters rights, by the European Court
of Justice, providing a standard
I assume, does not mean the highest level.
These references in relation to EU law

become, however, illogical if the control standard
the Judgment considers should apply to examine
the constitutionality of the challenged Order
should include any international treaties and
agreements on the protection of fundamental
rights and public freedoms, ratified by Spain. In
other words, the Convention for the Protection of
Human Rights and Fundamental Freedoms and
the European Charter of Fundamental Rights, and
the interpretation made thereof by the controlling
bodies established in these same international
treaties and agreements.
55
F-38
substantive interpretation; a supranational

standard, parameter or level of rights, to
be founded on respect for the common
constitutional traditions of Member
States and the rights protected by the
Convention for the Protection of Human
Rights and Fundamental Freedoms
(Article 6.3 of the Treaty on the
Functioning of the European Union), as
said rights are interpreted by the
European Court of Human Rights
(Article 52.3 of the Charter and Judgment
of the European Court of Justice of 22
December
2010,
DEB
Deutsche
Energiehandels und Beratungsgesellchaft
mbH, C-279/09, section 35). This
supranational standard, parameter or
level cannot be avoided, unless the
aforementioned limits are exceeded. This
is particularly true in the case of the
EAW: a cooperation device between the
judicial authorities of European Union
Member States, which share a common
realm of freedom, security and justice
based on a respect for human rights and
the rule of law.
c. All national Judges and Courts should
apply European law and, consequently,
they are all, without exception,
European judges in application matters.
Also in relation to fundamental rights and
the application of EU law, they should
apply the European standard, with the
possibility however, should Community
regulations allow a margin of discretion,
of challenging, if they so wish, the
national standard (Judgment of the
European Court of Justice of 26 February
2013, matter Akerberg Frannson).
The constitutional courts should also act
in this way, as proven by the fact that this
Constitutional Court, in the Order
applying for a preliminary ruling,
recognised that it acted as a
jurisdictional body in the terms of
(2016) 1 LAW
Article 267 of the Treaty on the

Functioning of the European Union
[ATC 86/2011, of 9 June, FJ 4 e)].
According to Article 267, the European
Court of Justice will be competent to
issue
preliminary
rulings
about
interpretation of the Treaties and the
validity and interpretation of acts adopted
by EU institutions, bodies or authorities,
if this is requested by a jurisdictional
body of a Member State, which considers
it is necessary to have a decision on the
matter in order to rule on a case. Further
to the foregoing, it is clear that whenever
a Member State court decides to apply
for this type of ruling, it is
acknowledging that the Court presented
with this issue is competent to resolve it,
unless its decision affects substantive
constitutional limits, in the terms
described. Certainly, this is a complex
matter that has produced different
solutions amongst the various European
courts (case of Czechoslovakia), but this
should be examined in relation to the
standards referred to above.
d.- The European Arrest Warrant replaces
extradition in European countries, but not
in relation to third countries in which,
due to not sharing the same principles, it
was not considered necessary or even
appropriate to establish a single standard
of protection of the right of defence.
In fact, as a fundamental difference, please
note that European Union members share a
policy of fundamental rights precisely
derived from their membership of this
supranational body (Article 93 of the
Spanish Constitution), which is lacking in
other countries. The recognition of a level of
protection that is lower than the right of
defence in relation to the EAW derives from
an application of the so-called principle of
mutual trust, because all European countries
share the same or equivalent protection
56
(2016) 1 LAW
F-39
7. To conclude, I do not agree with the reasoning

contained in the text of the Judgment approved in
full bench, for the following reasons explained
above:
1st This Judgment does not specify the
grounds on which the Court decides to
change the standards used until now in
our system, as part of our interpretation of
the right of defence.
2nd No reference is made to the nature of EU
law with respect to the rights and duties
contained in the.
3rd There are no constitutional criteria or
standards that should govern extraditions
to third countries, leaving the problem
unresolved.
4th In short, the Court does not assume its role
as a European judge.
The foregoing represents my Concurrent Opinion.
system, upon their acceptance of the rights

recognised in the Treaty of Lisbon.
This is precisely why the Court is not subject to
compliance with EU law in extradition matters
related to non-European countries, where it need
not be restricted by European standards. The
constitutional standard, parameter or level

applied in such case may be different; it may
have even remained the same, though as a
result- as in this case- of the application of
Article 10.2 of the Spanish Constitution.
The Judgment generally proclaims that The
Spanish public powers are unconditionally
bound ad intra by fundamental rights as
enshrined in the Constitution, but the
binding content of fundamental rights when
projected ad extra is more limited. And I
wonder if even in those States requesting an
extradition that do not share the same
concept of rights and freedoms? What is the
reason for this standards more limited
nature? These and other questions arise as a
result of this Judgment. Such a radical
change of position following constant caselaw laid down since the year 2000 would
need, with all due respect, more justified
grounds; unless we had clearly recognised
that the Judgment was one of execution, not
delivered in an amparo appeal with a change
of doctrine which, in my opinion, would
have been more in line with our task as an
European judicial body and would have
avoided bringing up the tangential issue of
extradition, when in fact what was being
discussed was the European Arrest Warrant.
Judge Jorge Rodrguez-Zapata Prez, in his
aforementioned Concurrent Opinion, already
advised that the nature of both institutions
extradition and the EAW is clearly different
and that the decisions referred to in the Judgment
he did not agree with had not stopped to reason
or refute it, thereby precluding the possibility of
knowing what logical process advised that the
formers effects be extended to the latter. The
foregoing is applicable to this Judgment.
***
Concurrent Opinion of the Judge Mr. ANDRS
OLLERO TASSARA in relation to the Judgment
delivered in amparo appeal no. 6922-2008.
With my utmost respect for the opinion of the rest

of the Court, and further to the right conferred by
Article 90.2 of the Organic Law on the
Constitutional Court, I hereby issue my
concurrent opinion on the aforementioned
Judgment.
1. First of all, let it be said that I share the ruling
and part of the legal grounds. As I indicated in
the discussion, my difference of opinion refers to
the scope of our resolution, based on such
grounds.
I agree with our acknowledgement of the binding
effects arising, via Article 93 of the Spanish
Constitution, for the Kingdom of Spain as a
European Union Member State. But I also agree
with the statement of Declaration 1/2004, of 13
December, Ground 2, cited in Ground 3 of this
Judgment: the constitutional transfer enabled by
Art. 93 CE is subject to material limits imposed,
expressly included in the constitutional precept,
but which implicitly result from the Constitution
57
F-40
and from the essential meaning of the precept

itself, are understood as the respect for the
sovereignty of the State, or our basic
constitutional structures and of the system of
fundamental principles and values set forth in our
Constitution, where the fundamental rights
acquire their own substantive nature (Article 10.1
of the Spanish Constitution). Not in vain, the
Constitution demands that the legal order
accepted as a consequence of the assignment be
compatible with its basic principles and values.
In fact, the European Court of Justice, with
headquarters in Luxembourg, has been gradually
consolidating its case-law, inspired by the
constitutional traditions of Member States about
the minimum content covered by the protection
of fundamental rights to which they are bound. A
decisive factor in the foregoing has been the
incorporation of the Charter of the Fundamental
Rights of the European Union amongst the
Treaties. In no case was the plan to condition
possible over-protection in force in different
countries. Similarly, Spain is bound to the
European Convention on Human Rights, and to
the case-law laid down by the European Court of
Human Rights, with headquarters in Strasbourg.
Also in this case, European Court of Human
Rights case-law establishes certain unavoidable
contents as regards the protection of rights,
without consequently excluding any possible
over-protection in the signatory States.
As regards European Court of Justice caselaw, the facts have eventually evidenced that
sometimes, both in Spain and in other Member
States, a certain over-protection is however
obligatorily excluded as a result of EC rules; in
the case, the European Arrest Warrant scope has
been used to fight cross-border delinquency more
effectively inside the European Union.
2. Accepting that this interpretation should lead
us to recognise certain exceptions on the level of
protection of rights established in our case-law,
further to relations with other States also bound
by the EAW, I do not agree with the affirmation
stated in Ground 4 of the Judgment, which only
(2016) 1 LAW
uses as an argument the European Court of

Justices response to our first preliminary ruling
the following statement: After having referred to
our case-law on indirect infringements of
fundamental rights and its specific application to
a fundamental right to a fair trial, we must
overrule the way how this Court has construed
the notion of absolute contents of the right to a
fair trial (Article 24.2 of the Spanish
Constitution)., which has been governing our
relations with countries. I see no reason why the
exceptional treatment arising from Article 93 of
the Spanish Constitution should be extended to
the immense majority of non-EU countries. This
diverse treatment is not that different from the
one generated with a constitutional reform of
Article 13 of the Spanish Constitution from the
fundamental right to be elected, not just to vote,
in local elections.
Even if, for other reasons not included in the
Judgment, the opinion is that we should abandon
the excessive judicial protection implicit in our
doctrine, this case is not the most appropriate
time for such justification: specifically, an appeal
for constitutional protection filed by a citizen
belonging to a European Union Member State,
which is likewise bound by the EAW. I do not
think that the best way to inaugurate what seems
to be a laborious dialogue between the Courts
(the Spanish Constitutional Court and the
European Court of Justice) is to unnecessarily
turn it into a monologue that needs to be
accepted.
3. I consider that the situation raised should have
encouraged the Court to review the adequacy of
the European Union also subscribing the Treaty
of Rome, in order to avoid its Member States
from being obliged in a strained perspective to
carry out a three-way dialogue, in order to
establish the mandatory minimum contents
involved in the protection of human rights.
The foregoing represents my Concurrent Opinion.
Madrid, on 13 February 2014
*****
58
(2016) 1 LAW
ISC-13
(Carried from p. 18)
orders passed in the writ petition and the review are

the subject matters of these appeals, by way of
special leave, before this Court.
14. We have heard Ms. Pinky Anand, learned
Additional Solicitor General along with Mr.
Balasubramaniam, learned counsel for the appellants
and Mr. Sharan, learned senior counsel along with
Ms. Shobha, learned counsel for the respondent.
15. It is submitted by the learned Additional
Solicitor General that since respondent had already
received on two occasions the benefits in terms of
the 1987 policy, the change in the application of
parameters will not enure to the benefit of the
respondent because that will ultimately lead to
application of policy ad infinitum in gross disregard
of Paragraph 7 of the policy dated December 13,
2008. It is urged by her that had the benefit not been
extended for the purpose of granting promotion to
the post of Lt. Colonel and Colonel, the matter
would have been absolutely different. Learned
counsel appearing for the appellants has been
extremely critical of the view expressed by the High
Court that once there has been a reduction of the
Boards and the post, namely, Lt. Colonel has
become a non-selection post a pragmatic approach
has to be adopted while appreciating the subsequent
policy of 2011. In support of the stand, reliance has
been placed on Hardev Singh v. Union of India &
Anr., (2011) 10 SCC 121. It is her submission that
the High Court has fallen into grave error in
distinguishing the said authority.
16. Countering the aforesaid submissions, it is
propounded by Mr. Sharan, learned senior counsel
that the subsequent policies clearly envisaged that
marks are to be awarded for two stages of
promotion and when a specific policy is introducing
precise terms, it has to be applied to the case of the
respondent and the High Court has not committed
any error by applying the same. Learned senior
counsel would contend that the pronouncement in
Hardev Singh (supra) is not applicable to the case at
hand as the relief sought therein was to get the
benefit in perpetuity but so is not the factual score
in the case at hand. Learned senior counsel would
vehemently urge that gallantry awards exhibit
bravery and courage of a soldier and there are
hardly many people in the country who get such
awards twice and hence, the interpretation of the

policy deserves a liberal outlook which the High
Court has done and in such a situation, the
impugned judgment and order do not warrant any
interference.
17. We have already reproduced the relevant
clauses of the policy. The 1987 policy postulated
about the nature of benefits to be given to the
awards and decorations. When the respondent was
promoted to the post of Lt. Colonel in the year
1999, he was given the benefit of the awards. At
that point of time, the post of Lt. Colonel was a
selection post. Thereafter in 2001, as is the admitted
position, he was promoted to the post of Colonel
and he was granted the benefit of the decorations.
There is no cavil over the fact that policy is changed
in 2008 with effect from 01.01.2009 and further in
2011. The case of the respondent was considered
twice for the post of Brigadier but he was not
selected. The selection on any other ground was not
under assail either before the tribunal or before the
High Court and that is not the issue before us.
18. What has been canvassed before us is that under
the 1987 policy, there was no restriction of period,
meaning thereby, it was not restricted to two
promotions. The restriction was incorporated in
2008 policy as well as in 2011 policy and,
therefore, the benefits should be given under the
said scheme. The said proponement has been
astutely structured by urging that earlier there were
five promotions through Selection Boards but by
virtue of the change of policy, it has been reduced
to four selection Boards inasmuch the post of Lt.
Colonel has become a non-selection post and
attainable on the basis of time bound promotion
scheme and, therefore, in actuality the respondent
has been conferred the benefit of awards/
decorations only once.
19. In this context, it is appropriate to understand
the ratio laid down in Hardev Singh (supra). The
two-Judge Bench was considering the 2009 policy
which dealt with the value judgment. We are
really not concerned with regard to the position held
by the appellant therein. The appellant was awarded
Kirti Chakra in 1985 when he was working in the
rank of Major. The said award was considered by
the selection Board while considering his case for
59
ISC-14
promotion up to Major General and in that context,

the Court observed that the award/honour could not
be considered forever as per promotional policy. In
that context, the Court held that as per the new
policy, weightage for awards is allowed only for
two times after receipt of the award/honour and
hence, in the circumstances, the award of Kirti
Chakra had rightly not been considered by the
Special Selection Board when it had convened its
meeting in January 2009. In paragraph 21 and 22,
the Court has ruled thus:-
and, therefore, that should be counted from that stage.
To clarify, as the learned senior counsel for the

respondent would put it even if the benefits had
been given for two promotions on the basis of the
1987 policy, he would still be entitled to get two
selections stipulated in the subsequent policy.
The said submission is really pyramided on the
edifice that one Selection Board has been
reduced, for earlier there were five Boards and
subsequently it has been reduced to four as the
post of Lt. Colonel became a non-selection post.
In our considered view, the said edifice is bound
to founder because it does not have any rational
support. Our further delineation would make it
clear. The High Court, as we notice, has been
guided by some kind of unfathomable
pragmatism while appreciating the policy
decision. A policy has to be understood in its proper
21. The above facts would make it clear that the

cases of the appellant and others were never
considered by the SSB in 2008 or prior to 1st
January, 2009. It means that the cases were
considered as per the new policy and, therefore, all
submissions made on behalf of the appellant that
the policy was changed after the process of
selection had been started are not correct and,
therefore, they are to be discarded.
22. The grievance made by the appellant with
regard to non-consideration of award of Kirti
Chakra is also not having any substance for the
reason that as per the new policy, the grant of such
an award/honour is to be considered only twice. In
1985, when the appellant was in the rank of Major,
he was awarded 'Kirti Chakra' and the said fact was
duly considered till he got promotion to the rank of
Major General. As per the new policy, this honour,
which he had secured in 1985 could not have been
considered again and, therefore, it was rightly not
taken into account. We also find substance in the
perspective. It has to be appositely interpreted, regard

being had to the concept of permissible and acceptable
parameters. A change of criterion in a promotional
policy and more so with added restriction, as

noted above, according to the High Court, would
not affect the future prospects of an incumbent
even if he had already availed the permissible
benefit under the earlier policy. In our considered
opinion, such an interpretation is indubitably
fallacious. The clear language of Paragraph 7 of the
new Policy has no scope for interpretation. Gallantry
awards can be given weightage only for two Selection
Boards after the award. Respondents case if
policy that if a person has performed his duty excellently

at a particular stage in his career, then that performance
of excellence cannot be considered for the entire life.
When an officer has to get his promotion strictly on
merits, his performance should be commendable
throughout and especially during last few years. The
accepted would require weightage for more than

two Selection Boards and that is clearly not
permissible. Therefore, we have no hesitation in
holding that the High Court has not appropriately
appreciated the ratio of the authority in Hardev
Singh (supra), the relevant clauses in the policy
and has committed an illegality and, therefore,
the judgment and order passed by the High Court
are bound to be set aside and we so do.
21. Resultantly, the appeals are allowed and the
judgment and order passed by the High Court in
the writ petition and in the Review are set aside.
However, there shall be no order as to costs.
case of the appellant was considered in 2009 for his

promotion to the rank of Lieutenant General and,
therefore, the achievements of the appellant in 1985
could not have been ordinarily considered by the
SSB. In the circumstances, the submissions relating
to not considering 'Kirti Chakra' award would not
help the appellant.
(emphasis ours)
20. The ratio of the said authority, as we understand

is that if an incumbent had already been given the
benefit that many number of times, which has been
stipulated in the subsequent policies, he cannot claim it
as a right on the basis of subsequent policy on the
foundation that the restriction had come into play later
(2016) 1 LAW
*****
60
(2016) 1 LAW
Supreme Court Women Lawyers Association v. Union of India & Anr. [IND-SC]
certain psychologically and possibly psychographically perverted culprits have not even
spared 28 days old baby girl and also in certain
situations have monstrously behaved with other
small girls who come within two to ten years of
age as if they are totally trivial commodities, has
invoked the jurisdiction of this Court under
Article 32 of the Constitution of India for
considering imposition of chemical castration as
an additional punishment for such child abusers.
(2016) 1 LAW ISC-15

AT NEW DELHI
CIVIL ORIGINAL JURISDICTION
Date of Judgment: Monday, 11 January 2016
Supreme Court Women Lawyers
Association (SCWLA)
ISC-15
Petitioner
ORDER
DIPAK MISRA, J.
2. In support of the cause projected, it is

submitted by Ms. Mahalakshmi Pavani, learned
senior counsel along with Ms. Shiva Vijay
Kumar, Ms. Anita Bafna and Ms. Prerna Kumari,
learned counsel for the petitioner that reading
certain news items in the newspapers in the
morning has become quite a dreadful and
lamentable experience for any sensitive person in
this country and extremely agonizing and
anguishing for any woman as the concept of
civility and conception of civilised society seem
to have veered on the path of destruction, and
degradation from the basic human values. She has
drawn our attention to the news items in the
Times of India, New Delhi dated December 07,
2015, Times City, dated December 8, 2015 and
various TV reports which reflect that two to five
year old girl children have been abused and
raped. Sometimes, as she would put with all
vestige of distress at her command, the tender
angelic girls have been abducted, brutally
ravished and murdered. It is urged by her that she
is absolutely conscious that this Court may not be
inclined to issue a mandamus to create a
punishment in respect of an offence but
indubitably this Court can give a suggestion so
that the legislature can appositely respond to the
collective cry.
1. The petitioner, Supreme Court Women

Lawyers
Association
(SCWLA),
being
immensely sensitively ignited by the atrocious,
inconceivable and brutal sexual offence where
3. Learned senior counsel has drawn inspiration

from the decisions rendered in Vishaka & Ors. v.
1
State of Rajasthan & Ors. and Sakshi v. Union of
2
India & Ors. to stress the point that this Court can
Versus
Union of India & Anr.
Respondents.
CORAM:
DIPAK MISRA, J.
N.V. RAMANA, J.
***
Short Notes: This decision condemns child rape in no
uncertain terms and makes a salient observation and a
meaningful suggestion to the Parliament on that basis as
follows: There can be no doubt that a girl child is a minor
but may be a time has come where a distinction can be drawn
between the girl children and the minor, may be by fixing the
upper limit at 10 for the girl children. We are disposed to
think so as by that age, a child, a glorious gift to mankind,
cannot conceive of any kind of carnal desire in man. Once she
becomes a victim of such a crime, there is disastrous effect on
her mind. The mental agony lasts long. Sorrow and fear haunt
forever. There is need to take steps for stopping this kind of
child abuse and hence, possibly there is a need for defining the
term child in the context of rape and thereafter provide for
more severe punishment in respect of the culprits who are
involved in this type of crime. In the light of the said decision,
we part with the suggestion with the fond hope that Parliament
would respond to the agony of the collective, for it really
deserves consideration.
***

61
(1997) 6 SCC 241

(2004) 5 SCC 518
ISC-16
Supreme Court Women Lawyers Association v. Union of India & Anr. [IND-SC] (2016) 1 LAW
that basis came to hold that in the absence of

enacted law to provide for effective enforcement
of the basic human right of gender equality and
guarantee against the sexual harassment and
abuse, more particularly against sexual
harassment at work places, guidelines and norms
can be laid down in exercise of the power under
Article 32 of the Constitution, and such guidelines
should be treated as law declared under Article
141 of the Constitution. The following passage
from the said authority makes the position clear:-
always lay the guidelines in the said regard.

Additionally, learned counsel for the petitioner
highlighting the fundamental value of human
rights and dignity of the children submitted that
when a child is born, thought of the Creative
Intelligence or Almighty comes into action. It is
canvassed by her that when a child sees the
mother earth it is a grace to the human race but
unfortunately the life span of a girl child is
guillotined before it blossoms because of
unimaginable carnal desire of some.
4. We have sought assistance of Mr. Mukul
Rohatgi, learned Attorney General for India.
Responding to the submissions of the learned
senior counsel for the petitioner, it is very fairly
put forth by Mr. Rohatgi that a society which is
civilized and replete with cultural values of
thousand years old and respects child and human
rights, child abuse and the rape of a girl child can
never be tolerated, and the culprits deserve to be
dealt with iron hands of law. However, Mr.
Rohatgi would submit that this Court should not
suggest a particular or specific punishment to be
introduced as it is in the domain of wisdom of the
Legislature. That apart, canvassed Mr. Rohatgi,
the punishment suggested by the PetitionerAssociation is more out of passion rather than
rational deliberation. In essence, the submission
is that punishment is provided under Section 376
of the Indian Penal Code (IPC) in respect of a
woman who is minor but there may be
circumstances where more specific attention may
be necessitous for dealing with the rapist of a girl
child.
5. At the very outset, we must make it clear that the
The international conventions and norms are

to be read into them in the absence of enacted
domestic law occupying the field when there is
no inconsistency between them. It is now an
accepted rule of judicial construction that regard
must be had to international conventions and
norms for construing domestic law when there is
no inconsistency between them and there is a
void in the domestic law.
6. We have referred to the said passage as it is

clear that the Court has clearly taken note of the
constitutional silence or constitutional abeyance
and dealt with the constitutional obligation to
protect the right of women at the workplace. The
Constitution Bench in Manoj Narula v. Union of
3
India , while dealing with the said principle, has
observed: The said principle is a progressive one and is
applied as a recognised advanced constitutional
practice. It has been recognised by the Court to
fill up the gaps in respect of certain areas in the
interest of justice and larger public interest.
Liberalisation of the concept of locus standi for
the purpose of development of public interest
litigation to establish the rights of the have-nots
or to prevent damages and protect environment is
one such feature. Similarly, laying down
guidelines as procedural safeguards in the matter
of adoption of Indian children by foreigners in
Laxmi Kant Pandey v. Union of India, (1987) 1
SCC 66, or issuance of guidelines pertaining to
arrest in D.K. Basu v. State of W.B., (1997) 1
SCC 416, or directions issued in Vishaka v. State
of Rajasthan (supra) are some of the instances.
courts neither create offences nor do they introduce or

legislate punishments. It is the duty of the Legislature.
The principle laid down in Vishaka's case is quite

different, for in the said case, the Court relied on
the
International
Convention,
namely,
Convention on the Elimination of All Forms of
Discrimination against Women, especially
Articles pertaining to violence and equality in
employment and further referred to the concept of
gender equality including protection from sexual
harassment and right to work with dignity and on
62
(2014) 9 SCC 1
(2016) 1 LAW
7. In the case at hand, the Legislature has enacted

the law and provided the punishment and,
therefore, we cannot take recourse to the Vishaka
principle. There is no constitutional silence or
abeyance.
8. In Sakshi (supra), the Court was dealing with a
Public Interest Litigation filed by the PetitionerAssociation to provide legal, medical, residential,
psychological or any other help, assistance or
charitable support for women, in particularly
those who are victims of any kind of sexual abuse
and/or harassment, violence or any kind of
atrocity or violation. The Court took note of
various statutory provisions and the constitutional
command, referred to the international
conventions, pronouncement in S. Gopal Reddy v.
4
State of A.P. and the report of the Law
Commission, and opined as follows:The writ petition is accordingly disposed of
with the following directions:
(1) The provisions of sub-section (2) of
Section 327 CrPC shall, in addition to the
offences mentioned in the sub-section, also
apply in inquiry or trial of offences under
Sections 354 and 377 IPC.
(2) In holding trial of child sex abuse or rape:
(i) a screen or some such arrangements
may be made where the victim or
witnesses (who may be equally
vulnerable like the victim) do not see
the body or face of the accused;
(ii) the questions put in cross-examination
on behalf of the accused, insofar as
they relate directly to the incident,
should be given in writing to the
presiding officer of the court who may
put them to the victim or witnesses in
a language which is clear and is not
embarrassing;
(iii) the victim of child abuse or rape,
while giving testimony in court,
should be allowed sufficient breaks as
and when required.
4
ISC-17
These directions are in addition to those given

in State of Punjab v. Gurmit Singh, (1996) 2
SCC 384.
9. We shall refer the said authority at a later
stage, but suffice to say here that the Court
neither proceeded to legislate nor did it provide
for a punishment.
10. In the case at hand, we are concerned with the
rape committed on a girl child. As has been urged
before us that such crimes are rampant for
unfathomable reasons and it is the obligation of
the law and law makers to cultivate respect for
the children and especially the girl children who
are treated with such barbarity and savageness as
indicated earlier. The learned senior counsel
appearing for the petitioner has emphasized on
the obtaining horrendous and repulsive situation.
11. In this context, we may usefully refer to
Section 376 IPC, as amended with effect from
February 3, 2013 which reads as follows:376. Punishment for sexual assault
(1)(a) whoever, except in the cases provided
for by sub-section (2) commits sexual
assault
shall
be
punished
with
imprisonment of either description for a
term which shall not be less than seven
years but which may extend to 10 years
and shall also be liable to fine. (b) If the
sexual assault is committed by a person in
a position of trust or authority towards the
complainant or by a near relative of the
complainant, he/she shall be punished with
rigorous imprisonment for a term which
shall not be less than ten years but which
may extend to life imprisonment and shall
also be liable to fine.
(2) Whoever,
(a) Being a police officer commits rape
(i) Within the limits of the police station
to which he is appointed; or
(ii) In the premises of any station house;
or
(iii) On a woman or minor in his custody
or in the custody of a police officer
subordinate to such officer; or
(1996) 4 SCC 596

63
ISC-18
Supreme Court Women Lawyers Association v. Union of India & Anr. [IND-SC] (2016) 1 LAW
(b) Being a public servant, commits rape on

a woman in such public servant's
custody or in the custody of a public
servant subordinate to such public
servant; or
(c) being a member of the armed forces
deployed in area by the Central or a
State Government commits rape in such
area; or
(d) being on the management or on the staff
of a jail, remand home or other place of
custody established by or under any law
for the time being in force or of a
women's or children's institution,
commits rape on any inmate of such
jail, remand home, place of institution;
or
(e) being on the management or on the staff
of a hospital, commits rape on a woman
in that hospital; or
(f) being a relative, guardian or teacher of,
or a person in a position of trust or
authority towards the woman, commits
rape on such woman; or
(g) commits rape during communal or
sectarian violence; or
(h) commits rape on a woman knowing her
to be pregnant; or
(i) commits rape on a woman when she is
under sixteen years of age; or
(j) commits rape, on a woman incapable of
giving consent; or
(k) being in a position of control or
dominance over a woman, commits rape
on such woman; or
(l) commits rape on a woman suffering
from mental or physical disability; or
(m) while committing rape causes grievous
bodily harm or maims or disfigures or
endangers the life of a woman; or
(n) commits rape repeatedly on the same
woman,
shall
be
punished
with
rigorous
imprisonment for a term which shall not be
less than ten years, but which may extend to
imprisonment for life, which shall mean
imprisonment for the remainder of that

person's natural life, and shall also be liable
to fine.
Explanation. For the purposes of this subsection.
(a) 'armed forces' means the naval, military
and air forces and includes any member
of the Armed Forces constituted under
any law for the time being in force,
including the paramilitary forces and
any auxiliary forces that are under the
control of the Central Government or
the State Government;
(b) 'hospital' means the precincts of the
hospital and includes the precincts of
any institution for the reception and
treatment
of
persons
during
convalescence or of persons requiring
medical attention or rehabilitation;
(c) 'police officer' shall have the same
meaning as assigned to the expression
police under the Police Act, 1861(5 of
1861);
(d) 'women's or children's institution' means
an institution, whether called an
orphanage or a home for neglected
women or children or a widow's home
or an institution called by any other
name, which is established and
maintained for the inception and care of
women or children.
12. It is submitted by Ms. Pavani, learned senior

counsel that Section 376(2)(i) deals with a culprit
who commits rape on a woman who is under 16
years of age but the instances are numerous
where the girl children and babies are raped.
Highlighting further, it is proponed by her that
when the society faces perversion where the child
abuse like rape is rampant, there is a warrant for
specific provision for imposing higher and severe
punishment on such culprits as there is a
provision under Section 376B which deals with
sexual intercourse by husband upon his wife
during separation or Section 376C, sexual
intercourse by a person in authority or Section
376E, punishment for repeated offender.
64
(2016) 1 LAW
13. It is urged by Ms. Pavani, learned senior

counsel that the term child requires to be
defined, regard being had to the situation
obtaining in the present day society. Learned
counsel would suggest that a woman below 16
years is definitely a minor but a child, though a
minor, may stand in a different category. The
pain and suffering of a child is a brutal assault on
her physical frame, when she is raped. She has no
idea about sex or rape. It is a nightmare.
Therefore, concern expressed by the PetitionerAssociation is justified. It is not a Utopian
thought or floating fancy of unwarranted
assumption. It is the demonstration of reality in
concrete terms. When a society moves in this
way, there has to be instillation of fear of law and
the punishment has to be definitive in a different
way. In such a situation the classical
understanding of crime by Marcus Aurelius, the
Roman Emperor of 2nd Century A.D., who had
said that poverty is the mother of crime may not
hold good, for the crimes committed on girl
children has no nexus with the economic status of
the perpetrator of crime; on the contrary, may
have nexus with neurotic behavior. In fact, this is
a crime which is a shameless demonstration and
total insensitive exposition of attitude to a victim.
It is a gross violation of the social values and a
failure of an individual. It is an act of extreme
depravity. Therefore, the situation that has
emerged compels one to rethink.
ISC-19
15. This Court cannot provide a higher

punishment. It can only suggest to the
Legislature. We are absolutely conscious that IPC
provides punishment for the offence of rape.
There can be no doubt that a girl child is a minor
but may be a time has come where a distinction
can be drawn between the girl children and the
minor, may be by fixing the upper limit at 10 for
the girl children. We are disposed to think so as
by that age, a child, a glorious gift to mankind,
cannot conceive of any kind of carnal desire in
man. Once she becomes a victim of such a crime,
there is disastrous effect on her mind. The mental
agony lasts long. Sorrow and fear haunt forever.
There is need to take steps for stopping this kind
of child abuse and hence, possibly there is a need
for defining the term child in the context of
rape and thereafter provide for more severe
punishment in respect of the culprits who are
involved in this type of crime. In the light of the
said decision, we part with the suggestion with
the fond hope that Parliament would respond to
the agony of the collective, for it really deserves
consideration. We say no more on this score.
16. We have earlier stated that we shall refer to
the authority in Sakshi (supra). In the said case,
after issuing the directions, the Court has
observed thus:The suggestions made by the petitioners will
advance the cause of justice and are in the
larger interest of society. The cases of child
abuse and rape are increasing at an alarming
speed and appropriate legislation in this regard
is, therefore, urgently required. We hope and
trust that Parliament will give serious attention
to the points highlighted by the petitioner and
make appropriate legislation with all the
promptness which it deserves.
14. We must appreciate the stand taken by

Mr. Rohatgi, learned Attorney General for India,
who has keenly expressed his concern relating to
the child abuse. It can never be forgotten that it is
duty of the society to make a child happy. In this
regard, it is apt to quote a few lines from Buxton:The first duty to children is to make them
happy. If you have not made them so, you
have wronged them, No other good they may
get can make up for that.
17. The writ petition is accordingly disposed of.

*****
65
ISC-20
Usmangani Adambhai Vahora v. State of Gujarat & Anr. [IND-SC]
The learned Principal Sessions Judge while rejecting

the application on the ground that once the trial
commenced, he had no jurisdiction to transfer the case
in exercise of the power under Section 408 CrPC; the
High Court had unsettled the said view and
- para 4, p. ISC-21.
correctly so.
(2016) 1 LAW ISC-20

AT NEW DELHI
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos. 1592-1593 of 2015
Criminal Law Administration of Justice Fair Trial

Justice not only be done but to be seen to be done
Transfer of a case from one court to another Sections
406, 407 & 408 CrPC Norms for exercise of power of
courts in this regard [Section 406 confers powers on
{@ S.L.P. (Criminal) Nos. 9374-9375 of 2015}
Date of Judgment: Friday, 8 January 2016

Usmangani Adambhai Vahora
Appellant
the Supreme Court to transfer a case from one court to

any other court in the country; S. 407 confers powers
on the High Courts to transfer cases from one court to
any other court in their jurisdiction; and S. 406 deals
with the powers of the Sessions Judge to do so under
his jurisdiction]. Under Section 406 CrPC, for transfer
of a criminal case, there must be a reasonable
apprehension on the part of the party to a case that
justice will not be done; also mere an allegation that
there is an apprehension that justice will not be done
in a given case alone does not suffice. No doubt the
purpose of the criminal trial being to dispense fair and
impartial justice uninfluenced by extraneous
considerations, when it is shown that the public
confidence in the fairness of a trial would be seriously
undermined, the aggrieved party can seek the transfer
of a case within the State under Section 407 and
anywhere in the country under Section 406 CrPC.
However, the apprehension of not getting a fair and
impartial inquiry or trial is required to be reasonable
and not imaginary. Though, free and fair trial is sine
qua non of Article 21 of the Constitution, the
apprehension must appear to the court to be a
reasonable one. Seeking transfer at the drop of a hat is
inconceivable. An order of transfer is not to be passed
as a matter of routine or merely because an interested
party has expressed some apprehension about proper
conduct of the trial. The power has to be exercised
cautiously and in exceptional situations, where it
becomes necessary to do so to provide credibility to
the trial. There has to be a real apprehension that there
would be miscarriage of justice. In this case, the
apprehension that has been stated is absolutely
mercurial and cannot remotely be stated to be
reasonable. The learned Sessions Judge, while hearing
the application for transfer of the case, called for
remarks of the learned trial judge, and in such a
situation, he is required to give a reply and that he has
done. The trial judge is not expected to accept the
Versus
State of Gujarat & Anr.
Respondents.
CORAM:
DIPAK MISRA, J.
PRAFULLA C. PANT, J.
***
Head Notes:
Justice not only be done but to be seen to be done
Transfer of a case from one court to another under the
jurisdiction of the Sessions Judge Section 408 CrPC
Questions raised in this case are: 1) regarding exercise

of power under sub-section (1) of Section 408 of the
Code of Criminal Procedure, 1973 (CrPC) by the
Sessions Judge to transfer a case from one Additional
Sessions Judge to any other Additional Sessions Judge
in his Sessions Division after commencement of the
trial; and 2) whether the case deserves to be
transferred. Answering the first issue, the High Court
has opined that the transfer petition preferred under
Section 408 CrPC before the learned Principal
Sessions Judge is maintainable. The view expressed
by the High Court on this score appears to be correct
and hence, the Court affirmed it. The principal issue
warranting delineation is the justification for allowing
application for transfer from the court where the trial
was pending to the court of another learned Additional
Sessions Judge .
- para 2, p. ISC-20.
Transfer of a case from one court to another under the
jurisdiction of the Sessions Judge Section 408 CrPC

(2016) 1 LAW
66
(2016) 1 LAW
allegations made as regards his conduct and more so

while nothing has been brought on record to
substantiate the same. The High Court could not have
deduced that he should have declined to conduct the
trial. Solely because an accused has filed an
application for transfer, the trial Judge is not required
to express his disinclination. He is required under law
to do his duty. He has to perform his duty and not to
succumb to the pressure put by the accused by making
callous allegations. He is not expected to show
unnecessary sensitivity to such allegations and recuse
himself from the case. If this can be the foundation to
transfer a case, it will bring anarchy in the
adjudicatory process. The unscrupulous litigants will
indulge themselves in court haunting. The High Court
has gravely erred in this regard. The appeals are
allowed in part. ...the direction to the Principal
Sessions Judge to transfer the case from the 3rd
Additional Sessions Judge to some other court is
set aside; the trial to be proceeded with and disposed
- Paras 9-13, p. ISC-23-24.
of within six months.
ISC-21
case from one Additional Sessions Judge to any

other Additional Sessions Judge in his Sessions
Division after commencement of the trial, and the
other, whether the case deserves to be transferred.
Answering the first issue, the High Court has
opined that the transfer petition preferred under
Section 408 CrPC before the learned Principal
Sessions Judge is maintainable. The view
expressed by the High Court on this score appears
to be correct and hence, we affirm the same. The
principal issue warranting delineation is the
justification for allowing application for transfer
from the court where the trial was pending to the
court of another learned Additional Sessions
Judge.
3. The facts which are essential to be stated are
that the 2nd respondent faced trial for the offences
mentioned hereinbefore in Sessions Case No. 291
of 2003. After examination of 18 prosecution
witnesses, the informant preferred an application
under Section 319 CrPC for arraigning one
Natubhai Maganbhai Edanwala as an accused in
the sessions case. The said application was
rejected by the learned trial judge vide order
dated 18.05.2006. Aggrieved by the aforesaid
rejection, the informant preferred Special
Criminal Application No. 1444 of 2006 before
the High Court which vide order dated
02.12.2011 rejected the same. The said order was
assailed before this Court in Special Leave
Petition (Criminal) No. 17262 of 2012 which was
dismissed on 11.01.2013 with the observation
that it would be open to the informant to file an
appropriate application under Section 319 CrPC,
if at the end of the examination of all the
witnesses, some material is found to connect the
person sought to be arraigned as an accused in the
alleged crime. As the factual matrix would
exposit, the informant filed another application
under Section 319 CrPC after the examination of
the prosecution witnesses Nos. 19 to 23 and the
application was allowed. The newly arraigned
accused preferred Special Criminal Application
No. 1731 of 2013 before the High Court
challenging the said order, and the High Court
had stayed the same.
***
JUDGMENT
DIPAK MISRA, J.
1. The seminal issue that has emerged for
consideration in these appeals is whether the
High Court in exercise of jurisdiction under
Article 227 of the Constitution of India is
justified in quashing the order dated 14.08.2015
passed by the Principal Sessions Judge, Kheda at
Nadiad in Criminal Miscellaneous Application
No. 545 of 2015 arising from the Sessions Case
No. 291 of 2003 instituted for the offences
punishable under Sections 147, 148, 149, 364A,
120B, 447, 342 and 506(2) of the Indian Penal
Code (IPC) and further directing the learned
Principal Sessions Judge to transfer the Sessions
Case to any other court of the learned Additional
Sessions Judge in the same Sessions Division
from the court of the 3rd Additional Sessions
Judge, Kheda.
2. Be it stated at the beginning, the High Court
has posed two questions one of which pertains
to exercise of power under sub-section (1) of
Section 408 of the Code of Criminal Procedure,
1973 (CrPC) by the Sessions Judge to transfer a
67
ISC-22
4. As the factual score would undrape on

31.07.2015 when the sessions trial was fixed
before the learned 3rd Additional Sessions Judge,
Kheda at Nadiad, as alleged, the second
respondent was standing in the parking area
meant for the four wheelers and at that time he
could overhear certain conversation between the
informant and his son that the trial would be
surely taken up for hearing from the next date
onwards and all the accused persons would
definitely be convicted. As further alleged, the
Presiding Officer said something regarding the
trial which the accused correlated with the
conversation he had overheard between the
informant and his son. Under such circumstances,
he filed Criminal Miscellaneous Application No.
545 of 2015 under Section 408 CrPC before the
Principal Sessions Judge, Kheda for transfer of
the sessions case to any other court in the same
Sessions Division. The learned Principal Sessions
Judges called for the remarks of the concerned
Presiding Officer and, after taking into
consideration the remarks and adverting to the
position of law, rejected the application. The
of transfer as the same is revealed from his

remarks forwarded to the Principal Sessions
Judge. After so stating, the learned single Judge
has held thus:I am sure that the present Additional Sessions
Judge would have acted in a true sense of a
Judicial Officer. But nevertheless, to ensure that
justice is not only done, but also seems to be
done and in the peculiar facts of the case, I feel
that it will be appropriate if the Principal
Sessions Judge transfers the case to any other
Additional Sessions Judge in the same Sessions
Division. I make it abundantly clear that the
transfer shall not be construed as casting any
aspersions on the learned Additional Sessions
Judge.
6. On a careful scrutiny of the order passed by the

High Court, it is not clear whether the High Court
has been convinced that the accused has any real
apprehension or bias against the trial judge.
However, the observations of the learned single
Judge, as it seems to us, is fundamentally based
on apprehension and to justify the same, he has
referred to the remarks offered by the learned
Additional Sessions Judge to the Sessions Judge
when explanation was called for. First, we shall
refer to the issue of apprehension. The
apprehension is based on some kind of
conversation between the informant and another
that the accused persons shall be convicted. There
is also an assertion that the trial judge is a
convicting Judge and that is why, the High Court
has observed that he is in dilemma.
7. So far as apprehension is concerned, it has to be one
which would establish that justice will not be done. In
this context, we may profitably refer to a passage
from a three-Judge Bench decision in Gurcharan
1
Dass Chadha v. State of Rajasthan , wherein it has
been held:-
learned Principal Sessions Judge while rejecting the

application had observed that once the trial
commenced, he had no jurisdiction to transfer the case
in exercise of the power under Section 408 CrPC. As
has been stated earlier, the High Court had unsettled
the said view and we have no hesitation to say correctly
so.
5. The High Court, as has been indicated earlier,

has referred to the conversation between the
parties and the impression of the accused. After
narrating the same, the High Court has observed
that the accused-petitioner definitely is in
dilemma and whether to term his apprehension as
reasonable or not, the result of the reaction of a
hypersensitive mind is the question. Thereafter,
the High Court has proceeded to observe that the
learned trial Judge had not examined any witness;
that all witnesses examined so far were examined
by his predecessor in office; that the Presiding
Officer himself had also not indicated his
disinclination to hear the matter, and that apart,
he had offered quite a stiff resistance to the plea
(2016) 1 LAW
The law with regard to transfer of cases is wellsettled. A case is transferred if there is a reasonable
apprehension on the part of a party to a case that justice
will not be done. A petitioner is not required to
demonstrate that justice will inevitably fail. He is

entitled to a transfer if he shows circumstances
1
68
AIR 1966 SC 1418
(2016) 1 LAW
from which it can be inferred that he entertains an

apprehension and that it is reasonable in the
circumstances alleged. It is one of the principles of the
alleged is reasonable or not, for the apprehension

must not only be entertained but must appear to the
Court to be a reasonable apprehension. In the said
context, the Court has held thus:-
administration of justice that justice should not only be

done but it should be seen to be done. However, a mere
allegation that there is apprehension that justice will not
be done in a given case does not suffice. The Court has
further to see whether the apprehension is reasonable or
not. To judge of the reasonableness of the
apprehension the state of the mind of the person who
entertains the apprehension is no doubt relevant but
that is not all. The apprehension must not only be
19. Assurance of a fair trial is the first

imperative of the dispensation of justice. The
purpose of the criminal trial is to dispense fair and
impartial
justice
uninfluenced
by
extraneous
considerations. When it is shown that the public
confidence in the fairness of a trial would be

seriously undermined, the aggrieved party can seek
entertained but must appear to the Court to be a

reasonable apprehension.
(emphases ours)
the transfer of a case within the State under Section 407

and anywhere in the country under Section 406 CrPC.
8. This Court in Abdul Nazar Madani v. State of

2
T.N. has ruled that:-
20. However, the apprehension of not getting a fair

and impartial inquiry or trial is required to be
reasonable and not imaginary. Free and fair trial is
The apprehension of not getting a fair and impartial
sine qua non of Article 21 of the Constitution. If

the criminal trial is not free and fair and if it is
biased, judicial fairness and the criminal justice
system would be at stake, shaking the confidence
of the public in the system. The apprehension
must appear to the court to be a reasonable one.
10. In Lalu Prasad alias Lalu Prasad Yadav v. State
4
of Jharkhand , the Court, repelling the submission
inquiry or trial is required to be reasonable and not

imaginary, based upon conjectures and surmises. If it
appears that the dispensation of criminal justice is

not possible impartially and objectively and
without any bias, before any court or even at any
place, the appropriate court may transfer the case to
another court where it feels that holding of fair and
proper trial is conducive. No universal or hard-andfast rules can be prescribed for deciding a transfer
petition which has always to be decided on the basis of
the facts of each case. Convenience of the parties
that because some of the distantly related

members were in the midst of the Chief Minister,
opined that from the said fact it cannot be
presumed that the Presiding Judge would
conclude against the appellant. From the said
decision, we think it appropriate to reproduce the
following passage:-
including the witnesses to be produced at the trial is

also a relevant consideration for deciding the
transfer petition. The convenience of the parties
does not necessarily mean the convenience of the
petitioners alone who approached the court on
misconceived notions of apprehension. Convenience
for the purposes of transfer means the convenience of
the prosecution, other accused, the witnesses and the
larger interest of the society.
(emphases ours)
Independence of judiciary is the basic feature of

the Constitution. It demands that a Judge who
presides over the trial, the Public Prosecutor who
presents the case on behalf of the State and the
lawyer vis--vis amicus curiae who represents
the accused must work together in harmony in
the public interest of justice uninfluenced by the
personality of the accused or those managing the
affairs of the State. They must ensure that their
working does not lead to creation of conflict
between justice and jurisprudence. A person
whether he is a judicial officer or a Public
Prosecutor or a lawyer defending the accused
should always uphold the dignity of their high
office with a full sense of responsibility and see
9. In Captain Amarinder Singh v. Parkash Singh

3
Badal and others , while dealing with an
application for transfer petition preferred under
Section 406 CrPC, a three-Judge Bench has
opined that for transfer of a criminal case, there must
be a reasonable apprehension on the part of the party to
a case that justice will not be done. It has also been
observed therein that mere an allegation that there is
an apprehension that justice will not be done in a given
case alone does not suffice. It is also required on the
part of the Court to see whether the apprehension

2
3
ISC-23
(2000) 6 SCC 204

(2009) 6 SCC 260
69
(2013) 8 SCC 593

ISC-24
that its value in no circumstance gets devalued.

The public interest demands that the trial should
be conducted in a fair manner and the
administration of justice would be fair and
independent.
(2016) 1 LAW
the adjudicatory process. The unscrupulous litigants
will indulge themselves in court haunting. If they

are allowed such room, they do not have to face
the trial before a court in which they do not feel
comfortable. The High Court has gravely erred in
this regard. So far as the non-examination of the
witnesses is concerned, as the factual score would
uncurtain, the matter had travelled to the High
Court in revision assailing the order passed under
Section 319 CrPC. Be that as it may, the High
Court has not adverted to the issue who was
seeking adjournment and what was the role of the
learned trial judge. Grant of adjournment could
have been dealt with by the High Court in a
different manner. It has to be borne in mind that a
judge who discharges his duty is bound to
commit errors. The same have to be rectified. The
accused has never moved the superior court
seeking its intervention for speedy trial. The High
Court has innovated a new kind of approach to
transfer the case. The High Court should have
kept in view the principles stated in K.P. Tiwari v.
6
State of M.P. which are to the following effect:-
11. The aforesaid passage, as we perceive, clearly

lays emphasis on sustenance of majesty of law by
all concerned. Seeking transfer at the drop of a hat is
inconceivable. An order of transfer is not to be passed
as a matter of routine or merely because an interested
party has expressed some apprehension about proper
conduct of the trial. The power has to be exercised
cautiously and in exceptional situations, where it
becomes necessary to do so to provide credibility to the
trial. There has to be a real apprehension that there
would be miscarriage of justice. [See : Nahar Singh
5
Yadav and another v. Union of India and others ].
12. In the instant case, we are disposed to think

that apprehension that has been stated is absolutely
mercurial and cannot remotely be stated to be
reasonable. The learned single Judge has taken an
exception to the remarks given by the learned

trial judge and also opined about nonexamination of any witness by him. As far as the
first aspect is concerned, no exception can be
taken to it. The learned Sessions Judge, while
hearing the application for transfer of the case,
called for remarks of the learned trial judge, and
in such a situation, he is required to give a reply
and that he has done. He is not expected to accept
the allegations made as regards his conduct and
more so while nothing has been brought on
record to substantiate the same. The High Court
could not have deduced that he should have
declined to conduct the trial. This kind of
observation is absolute impermissible in law, for
It has also to be remembered that the lower

judicial officers mostly work under a charged
atmosphere and are constantly under a
psychological pressure with all the contestants and
their lawyers almost breathing down their necks
more correctly up to their nostrils. They do not
have the benefit of a detached atmosphere of the
higher courts to think coolly and decide patiently.
Every error, however gross it may look, should not,
therefore, be attributed to improper motive.
13. Thus analysed, we are unable to sustain the

order of transfer passed by the High Court.
Consequently, the appeals are allowed in part. The
there is no acceptable reason on the part of the learned

trial judge to show his disinclination. Solely because an
accused has filed an application for transfer, he is not
required to express his disinclination. He is required
under law to do his duty. He has to perform his duty
and not to succumb to the pressure put by the accused
by making callous allegations. He is not expected to
show unnecessary sensitivity to such allegations and
recuse himself from the case. If this can be the
foundation to transfer a case, it will bring anarchy in
finding recorded as regards the jurisdiction of the

learned Sessions Judge is sustained, and as far as the
direction to the Principal Sessions Judge to transfer the
case from the 3rd Additional Sessions Judge to some
other court being vulnerable and wholly
unsustainable is set aside. The learned trial judge
shall proceed with the trial and dispose of the same

within six months.
*****
(2011) 1 SCC 307
70
1994 Supp. (1) SCC 540
THE ESSENCE OF CHRISTIANITY

- Ludwig Feuerbach
Written: 1841
Source: Introduction from The Fiery Brook,
remainder from The Essence of Christianity
Translated: Introduction translated by Zawar Hanfi,
1972, remainder translated by George Eliot, 1854.
TABLE OF CONTENTS:
Then
came
Feuerbachs
Essence
of
Christianity. With one blow it pulverised the
contradiction, in that without circumlocutions
it placed materialism on the throne again. ...
The spell was broken; the system was
exploded
and
cast
aside,
and
the
contradiction, shown to exist only in our
imagination, was dissolved. One must oneself
have experienced the liberating effect of
this book to get an idea of it. Enthusiasm
was general; we all became at once
Feuerbachians...
- ENGELS
Preface to the Second Edition, 1843

I:
1
2
Part I:
II
III
IV
V
VI
VII
VIII
IX
X
XI
XII
XIII
XIV
XV
XVI
XVII
XVIII
Part II.
XIX
XX
XXI
XXII
XXIII
XXIV
XXV
XXVI
XXVII
Introduction
Being of Man in General
Essence of Religion in General
The True or Anthropological Essence of
Religion
God as Being of Understanding
God as Moral Being or Law
God as Love
The Suffering God
The Trinity and Mother of God
The Logos and Divine Image
The Cosmogonical Principle
Nature in God
Creation out of Nothing
Creation in Judaism
The Mystery of Prayer
Faith and the Miracle
The Resurrection
The Personal God
Christianity and Heathenism
Celibacy and Monachism
Heaven & Immortality
The False or Theological Essence of Religion
The Essential Standpoint of Religion
Contradiction in existence of God
Contradiction in revelation of God
Contradiction in the nature of God
The Speculative Doctrine of God
Contradiction in the Trinity
Contradiction in the Sacraments
Faith & Love
Concluding Application
***
Preface to the Second Edition

THE clamour excited by the present work has
not surprised me, and hence it has not in the least
moved me from my position. On the contrary,
I have once more, in all calmness, subjected my
work to the severest scrutiny, both historical and
philosophical; I have, as far as possible, freed it
from its defects of form, and enriched it with new
developments, illustrations, and historical
testimonies, testimonies in the highest degree
striking and irrefragable. Now that I have thus
verified my analysis by historical proofs, it is to
be hoped that readers whose eyes are not sealed
will be convinced and will admit, even though
reluctantly, that my work contains a faithful,
correct translation of the Christian religion out of
the Oriental language of imagery into plain
speech. And it has no pretension to be anything
more than a close translation, or, to speak
literally, an empirical or historico-philosophical
analysis, a solution of the enigma of the Christian
religion. The general propositions which I premise
in the Introduction are no priori, excogitated
propositions, no products of speculation; they
have arisen out of the analysis of religion; they
are only, as indeed are all the fundamental ideas
of the work, generalisations from the known
manifestations of human nature, and in particular
of the religious consciousness, facts converted
into thoughts, i.e., expressed in general terms, and
thus made the property of the understanding. The
ideas of my work are only conclusions,
***
Ludwig von Feuerbach, a German philosopher, a left

Hegelian; impressed Marx and Engels very much toward
materialistic philosophy; emphases in bold ours - IMS.
71
72
The Essence of Christianity (Ludwig von Feuerbach)
consequences, drawn from premises which are not

themselves mere ideas, but objective facts either
actual or historical facts which had not their
place in my head simply in virtue of their
ponderous existence in folio. I unconditionally
repudiate absolute, immaterial, self-sufficing,
speculation, that speculation which draws its
material from within. I differ toto coelo from
those philosophers who pluck out their eyes that
they may see better; for my thought I require the
senses, especially sight; I found my ideas on
materials which can be appropriated only through
the activity of the senses. I do not generate the
practically, i.e., in concreto, in application to a

special object, but an object which has a universal
significance: namely, to religion, in which this
principle is exhibited, developed, and thoroughly
carried out. This philosophy is essentially
distinguished from the systems hitherto prevalent,
in that it corresponds to the real, complete nature of
man; but for that very reason it is antagonistic to minds
perverted and crippled by a superhuman, i.e., antihuman, anti-natural religion and speculation. It does
not, as I have already said elsewhere, regard the

pen as the only fit organ for the revelation of
truth, but the eye and ear, the hand and foot; it
does not identify the idea of the fact with the fact
itself, so as to reduce real existence to an
existence on paper, but it separates the two, and
precisely by this separation attains to the fact
itself; it recognises as the true thing, not the thing as it
object from the thought, but the thought from the

object; and I hold that alone to be an object which has
an existence beyond ones own brain. I am an idealist
only in the region of practical philosophy, that is,

I do not regard the limits of the past and present
as the limits of humanity, of the future; on the
contrary, I firmly believe that many things yes,
many things which with the short-sighted,
pusillanimous practical men of today, pass for
flights of imagination, for ideas never to be
realised, for mere chimeras, will tomorrow, i.e.,
in the next century, centuries in individual life
are days in the life of humanity, exist in full
reality. Briefly, the Idea is to me only faith in the
historical future, in the triumph of truth and virtue; it
has for me only a political and moral significance; for
is an object of the abstract reason, but as it is an object

of the real, complete man, and hence as it is itself a real,
complete thing. This philosophy does not rest on an
Understanding per se, on an absolute, nameless
understanding, belonging one knows not to whom, but
on the understanding of man; though not, I grant,
on that of man enervated by speculation and

dogma; and it speaks the language of men, not
an empty, unknown tongue. Yes, both in substance
and in speech, it places philosophy in the negation of
philosophy, i.e., it declares that alone to be the true
philosophy which is converted in succum et sanguinem,
which is incarnate in Man; and hence it finds its
in the sphere of strictly theoretical philosophy, I attach

myself, in direct opposition to the Hegelian
philosophy, only to realism, to materialism in the sense
above indicated. The maxim hitherto adopted by
highest triumph in the fact that to all dull and

pedantic minds, which place the essence of
philosophy in the show of philosophy, it appears to
speculative philosophy: All that is mine I carry

with me, the old omnia mea mecum porto,
I cannot, alas! appropriate. I have many things
outside myself, which I cannot convey either in
my pocket or my head, but which nevertheless
I look upon as belonging to me, not indeed as a
mere man a view not now in question but as a
philosopher. I am nothing but a natural philosopher in
the domain of mind; and the natural philosopher can
do nothing without instruments, without material
means. In this character I have written the present
work, which consequently contains nothing else
than the principle of a new philosophy verified
(2016) 1 LAW
be no philosophy at all.
This philosophy has for its principle, not the

Substance of Spinoza, not the ego of Kant and
Fichte, not the Absolute Identity of Schelling, not
the Absolute Mind of Hegel, in short, no abstract,
merely conceptional being, but a real being, the true
Ens realissimum man; its principle, therefore, is in
the highest degree positive and real. It generates
thought from the opposite of thought, from

Matter, from existence, from the senses; it has
relation to its object first through the senses, i.e.,
passively, before defining it in thought. Hence
my work, as a specimen of this philosophy, so far
72
(2016) 1 LAW
73
into two parts, of which the first is, as to its main

idea, positive, the second, including the Appendix,
not wholly, but in the main, negative; in both,
however, the same positions are proved, only in a
different or rather opposite manner. The first
exhibits religion in its essence, its truth, the
second exhibits it in its contradictions; the first is
development, the second polemic; thus the one is,
according to the nature of the case, calmer, the
other more vehement. Development advances
gently contest impetuously, for development is
self-contented at every stage, contest only at the
last blow. Development is deliberate, but contest
resolute. Development is light, contest fire. Hence
results a difference between the two parts even as
to their form. Thus in the first part I show that the
true sense of Theology is Anthropology, that
there is no distinction between the predicates of
the divine and human nature, and, consequently,
no distinction between the divine and human
subject: I say consequently, for wherever, as is
especially the case in theology, the predicates are
not accidents, but express the essence of the
subject, there is no distinction between subject and
predicate, the one can be put in the place of the other;
on which point I refer the reader to the Analytics
of Aristotle, or even merely to the Introduction of
Porphyry. In the second part, on the other hand,
I show that the distinction which is made, or rather
from being, a production to be placed in the

category of Speculation, although in another
point of view it is the true, the incarnate result of
prior philosophical systems, is the direct opposite
of speculation, nay, puts an end to it by
explaining it. Speculation makes religion say only
what it has itself thought, and expressed far better than
religion; it assigns a meaning to religion without
any reference to the actual meaning of religion; it
does not look beyond itself. I, on the contrary, let
religion itself speak; I constitute myself only its listener
and interpreter, not its prompter. Not to invent, but to
discover, to unveil existence, has been my sole object;
to see correctly, my sole endeavour. It is not I, but
religion that worships man, although religion, or

rather theology, denies this; it is not I, an
insignificant individual, but religion itself that says:
God is man, man is God; it is not I, but religion that
denies the God who is not man, but only an ens rationis,
since it makes God become man, and then

constitutes this God, not distinguished from man,
having a human form, human feelings, and
human thoughts, the object of its worship and
veneration. I have only found the key to the
cipher of the Christian religion, only extricated its
true meaning from the web of contradictions and
delusions called theology; but in doing so I have
certainly committed a sacrilege. If therefore my work
is negative, irreligious, atheistic, let it be
remembered that atheism at least in the sense of
this work is the secret of religion itself; that religion
itself, not indeed on the surface, but
fundamentally, not in intention or according to its
own supposition, but in its heart, in its essence,
believes in nothing else than the truth and divinity
of human nature. Or let it be proved that the
historical as well as the rational arguments of my
work are false; let them be refuted not,
however, I entreat, by judicial denunciations, or
theological jeremiads, by the trite phrases of
speculation, or other pitiful expedients for which
I have no name, but by reasons, and such reasons
as I have not already thoroughly answered.
Certainly, my work is negative, destructive; but,
be it observed, only in relation to the unhuman, not to
the human elements of religion. It is therefore divided
supposed to be made, between the theological and

anthropological predicates resolves itself into an
absurdity. Here is a striking example. In the first
part I prove that the Son of God is in religion a real son,
the son of God in the same sense in which man is

the son of man, and I find therein the truth, the
essence of religion, that it conceives and affirms a
profoundly human relation as a divine relation; on the
other hand, in the second part I show that the Son of
God not indeed in religion, but in theology, which is
the reflection of religion upon itself, is not a son
in the natural, human sense, but in an entirely different
manner, contradictory to Nature and reason, and
therefore absurd, and I find in this negation of
human sense and the human understanding the

negation of religion. Accordingly the first part is
the direct, the second the indirect proof, that theology is
anthropology: hence the second part necessarily
73
74
has reference to the first; it has no independent

significance; its only aim is to show that the sense
in which religion is interpreted in the previous
part of the work must be the true one, because the
contrary is absurd. In brief, in the first part I am
true object and substance, namely, man,

anthropology, were an absurdity, a nullity, a pure
illusion. But so far from giving a trivial or even a
subordinate significance to anthropology a
significance which is assigned to it only just so
long as a theology stands above it and in
opposition to it, I, on the contrary, while reducing
chiefly concerned with religion, in the second with

theology: I say chiefly, for it was impossible to
exclude theology from the first part, or religion

from the second. A mere glance will show that
my investigation includes speculative theology or
philosophy, and not, as has been here and there
erroneously supposed, common theology only, a
kind of trash from which I rather keep as clear as
possible, (though, for the rest, I am sufficiently
well acquainted with it), confining myself always
to the most essential, strict and necessary
definition of the object, and hence to that
definition which gives to an object the most
general interest, and raises it above the sphere of
theology. But it is with theology that I have to do,
not with theologians; for I can only undertake to
characterise what is primary, the original, not
the copy, principles, not persons, species, not
individuals, objects of history, not objects of the
chronique scandaleuse.
If my work contained only the second part, it
would be perfectly just to accuse it of a negative
tendency, to represent the proposition: Religion is
nothing is an absurdity, as its essential purport.
But I by no means say (that were an easy task!):
theology to anthropology, exalt anthropology into

theology, very much as Christianity, while lowering God
into man, made man into God; though, it is true, this
human God was by a further process made a

transcendental, imaginary God, remote from man.
Hence it is obvious that I do not take the word
anthropology in the sense of the Hegelian or of any
other philosophy, but in an infinitely higher and more
general sense.
Religion is the dream of the human mind. But even
in dreams we do not find ourselves in emptiness or in
heaven, but on earth, in the realm of reality; we only
see real things in the entrancing splendour of

imagination and caprice, instead of in the simple
daylight of reality and necessity. Hence I do
nothing more to religion and to speculative
philosophy and theology also than to open its
eyes, or rather to turn its gaze from the internal
towards the external, i.e., I change the object as it
is in the imagination into the object as it is in
(to be continued)
reality.
***
Ludwig Andreas von Feuerbach (28
July 1804 13 September 1872) was a
German philosopher and anthropologist
best known for his book The Essence
of
Christianity,
which
provided
a critique
of
Christianity which
strongly
influenced generations of later thinkers, including
both Karl Marx and Friedrich Engels. An
associate of Left Hegelian circles, Feuerbach
advocated liberalism, atheism, and materialism.
Many of his philosophical writings offered a
critical analysis of religion. His thought was
influential in the development of dialectical
materialism, where he is often recognized as a
bridge between Hegel and Marx.
God is nothing, the Trinity is nothing, the Word of God

is nothing, etc. I only show that they are not thatwhich
the illusions of theology make them, not foreign, but
native mysteries, the mysteries of human nature;
I show that religion takes the apparent, the superficial
in Nature and humanity for the essential, and hence
conceives their true essence as a separate, special
existence: that consequently, religion, in the definitions
which it gives of God, e.g.,of the Word of God, at
least in those definitions which are not negative

in the sense above alluded to, only defines or
makes objective the true nature of the human word.
The reproach that according to my book religion
is an absurdity, a nullity, a pure illusion, would be
well founded only if, according to it, that into
which I resolve religion, which I prove to be its
(2016) 1 LAW
*****
74
(2016) 1 LAW
Historical inevitability or electoral corruption? [IMS]
75
( Carried from p. 2 )
movement. The Committee had come to conclusions

in which the names of Messrs. B.C. Pal and Tilak
were loosely used. He asked why did not the
Committee go a step behind to enquire into the
causes that led the speakers and the writers to use
deprecating expressions with regard to bureaucratic
actions? He pointed out that under the cover of the
Defence of India Act, which was a war measure,
hundreds of people were sent to jail. The internment
policy was a living crime The resolution was
seconded, supported and carried.
It is not exactly clear whether the Pt. Malaviyas
resolution on Reforms in the context of the MontaguChelmsford Reforms proposals was passed in this
Congress itself or was reserved for the usual year
end Congress to be held at Delhi. However, it is
amply clear that the entire Special Congress was
seized more of the urgent need to press for more
and more self-government demands and proposals
in the context of the proposed constitutional reform
and any other matters and resolutions had only
attracted secondary importance and attention. It is
noteworthy that not any resolution was passed or
even any move made regarding the demand of
separate Andhra state in this special Congress.
The 33rd annual session of the Indian National
Congress began in the morning of 26 December
1918 at Delhi where, contrary to the general
expectations and resolution of the Bombay
Provincial Congress for election of Sri Bal
Gangadhar Tilak as the President, it seems Pandit
Madan Mohan Malaviya had been invited to be and
elected as President. In his ex tempore presidential
address Sri Malaviya, after thanking the delegates
and people for his election as President of Indian
National Congress for the second time, when
being elected even once was a great honor, and also

delving at length on the War situation and Indias
contributions to the allied effort, inter alia [per news
report in Andhra Patrika, 27-12-1918], stated:
and passed the LL.B. examination in 1891. With few
exceptions he regularly attended the annual Congress
sessions from 1886 to 1936.On account of his
services to the Congress he was elected its President in
1909, 1918, 1932 and 1933, but owing to his arrest by the
Government of India, he could not preside over the 1932
and 1933 sessions which had been banned. Perhaps, he
tried to popularise the national cause more than many
other leaders. Although he was a strong supporter of the
Congress he founded the Hindu Mahasabha in 1906. It was
established, according to its supporters, to oppose not the just
claims of the Muslim community but the "divide and rule"
policy of the British Government. He became a High Court
Vakil in 1893. in 1922 in regard to the appeal of 225

persons condemned to death in connection with the
Chauri Chaura riots [reg. which Gandhi suspended the
civil disobedience movement] he saved 153 accused from
the gallows. he was elected to the Provincial Legislative
Council in 1902. In view of the non-cooperation
movement started by Mahatma Gandhi in 1920, he did
not seek election to the Indian Legislative Assembly in
1921. But he was a member of the Assembly from 1924
to April 1930. He resigned shortly after the salt
satyagraha started by Mahatma Gandhi and took part in
it. He supported the demand for the grant of full
Dominion Status to India put forward by Pandit Motilal
Nehru. He was invited to the Round Table Conference in
1931, but he returned dissatisfied with the attitude of the
British Government. The Benares Hindu University is a
showcase of the keen interest that he took in the education of
the mind and the spirit [(to) combine the teaching of science
and technology with that of religion]. He was a conservative
in social matters; believed in the 'Varnashrama Dharma';

was, however, prepared to adjust himself to social
changes in the country to a limited extent; but wanted to
take leaders of the Hindu community and the Benares
pandits with him in matters of social reform. He felt
strongly the injustice done to the depressed classes,
especially as regards temple entry and pleaded their cause
with the Banaras Pandits...; also favoured the raising of
the position of Hindu women. He was known for his
Earlier he was the President of Indian National Congress

at the 1909 Lahore annual session. He had been elected as
President of the INC later in 1932 Delhi and 1933 Calcutta
also i.e. four times in all. Madan Mohan Malaviya (18611946), born Allahabad 25 December 1861; graduated
from the Calcutta University in 1884; appointed as a
teacher in his old school on forty rupees a month and
soon became popular amongst his pupils. Attended the
second Congress session held in Calcutta in 1886 and
delivered a speech which held the audience spellbound.
Malaviya wanted to devote himself entirely to the service
of the country. studied law passed LL.B. exam in 1891.
gentleness and humility but did not yield where principles were
concerned; had the courage to differ more than once with the
Mahatma even at the risk of becoming unpopular. He
opposed, for example, the boycott of schools and

colleges, the burning of foreign cloth and the boycott of
the Prince of Wales in 1921. he considered responsive
cooperation a better policy than civil disobedience. {Recently
he was, posthumously, awarded Bharat Ratna, Indias
highest award of honor}. (Courtesy: INC at http://inc.in/)
(to be continued)
75
76
Law Animated World {15 January 2016}
Postal Reg. No. HD/1098/2014-16
THE ROAD NOT TAKEN

- Robert Frost*
Two roads diverged in a yellow wood,
And sorry I could not travel both
And be one traveler, long I stood
And looked down one as far as I could
To where it bent in the undergrowth;
Then took the other, as just as fair,
And having perhaps the better claim,
Because it was grassy and wanted wear;
Though as for that the passing there
Had worn them really about the same,
And both that morning equally lay
In leaves no step had trodden black.
Oh, I kept the first for another day!
Yet knowing how way leads on to way,
I doubted if I should ever come back.
I shall be telling this with a sigh
Somewhere ages and ages hence:
Two roads diverged in a wood, and I
I took the one less traveled by,
And that has made all the difference.
OWN EPITAPH
Courtesy:
***
[*ROBERT LEE FROST (March 26, 1874 - January 29, 1963),
NOTHING GOLD CAN STAY
one of the most popular and critically respected American

poets of the 20th century, Frost was frequently honored,
received 4 Pulitzer Prizes; awarded the Congressional Gold
Medal in 1960; named Poet laureate of Vermont on 22 July,
1961.]
*****
Courtesy: Craig Michaud at en.wikipedia, CC BY 3.0,

https://commons.wikimedia.org/w/index.php?curid=17983593
Courtesy: https://in.pinterest.com/explore/famous-poems/
Owned, Printed and Published by I. Balamani, 6-3-1243/156, M.S. Makta, Opposite Raj Bhavan,
Hyderabad - 500082; Editor: I. Mallikarjuna Sharma; Ph: 23300284; E-mail: mani.bal44@gmail.com
andprinted at Pragati Offset Pvt. Ltd., Red Hills, Hyderabad-500 004 {Ph: 23304835, 23380000}
76

TotalLaw 15 01 2016

Hochgeladen von

Dokumentinformationen

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

TotalLaw 15 01 2016

Hochgeladen von

Copyright:

Verfügbare Formate

(2016) 1 LAW

RNI No. APENG/2005/18975

Annual Subscription Rs. 1200/-

ISSN 2277 8829

A world law fortnightly published from Hyderabad, India.

Editor: I. Mallikarjuna Sharma

Volume 12: Part 1

CASTEISM BANE OF INDIAN SOCIETY

5. Compassion Unlimited Plus

Editorial Office: 6-3-1243/156,

Annual Subscription: Rs. 1200/Abroad: $ 180 (postage extra)

Please donate Rs. 50/- or more.

Patidar (Patels) Reservation agitation and its leader Hardik Patel

Kapus demand reservations

Gujarati Brahmins too not lagging

HISTORICAL INEVITABILITY OR ELECTORAL CORRUPTION?

be an Indian. (B) All charges in respect to the

Pandit Malaviyas resolution contd

Continued from Law Animated World, 31-12-2015 issue;

AUTOBIOGRAPHY OF MARTYR RAMPRASAD BISMIL

Continued from Law Animated World, 31 December 2015

Law Animated World, 15 January 2016

Autobiography of Martyr Ramprasad Bismil

After some days the District Collector met us.

cannot be found, I think. As long as the case was

When at the time the case has not reached to

MARXS CONCEPT OF MAN

3. THE PROBLEM OF CONSCIOUSNESS,

as in a camera obscura, this phenomenon arises

A problem of the greatest importance is raised

Marx gave a fuller statement with regard to the

observations must in each separate instance bring

An instrument perfected in the late Middle Ages, to throw,

structure and the State are continually evolving out of

The production of ideas, of conceptions, of

Consciousness is therefore from the very beginning a social

Consciousness is at first, of course, merely consciousness

anything else than conscious existence, and the existence

men and their circumstances appear upside down

Continued from Law Animated World, 31 December

Law Animated World, 15 January 2016

Marxs Concept of Man (Erich Fromm)

The last concept, that of "revolutionary practice",

Its is important to recognize that this theory does

democracy is the daughter of the great English,

itself and all powers inherent in man are part of the

human evolution is concerned, Marx was by no

democratic government is based on the principle of force,

if it is necessary for the continuation of the status

argument was not against ideas, but against ideas which

following passage should make clear how

The materialistic doctrine [in contrast to Marx's

Marx saw that political force cannot produce

German Ideology, 1.c. p. 197-8 [My italics -E.F.] Cf. also

Law Animated World, 15 January 2016

UPON hearing the counsel the Court made the

(2016) 1 LAW ISC-1

SUPREME COURT OF INDIA

Writ Petition (Civil) No. 24 of 2016

Date of Judgment: Friday, 9 January 2015

(With appln. (s) for stay/interim directions and office report)

WITH W.P.(C) No.23/2016

Contempt Petition (C) No. D 1269/2016 in C.A. No.5387/2014