Rulj Volume 1 Issue 4

RULJ (2015) Vol. 1.
RULJ
RAJASTHAN UNIVERSITY LAW JOURNAL
BY
UNIVERSITY FIVE YEAR LAW COLLEGE
JAIPUR
VOLUME 1 ISSUE 4
JANUARY-JUNE 2015
RULJ (2015) Vol. 1.4
RULJ (2015) Vol. 1.4

VOLUME 1
2015
ISSUE 4
PATRONS
Mr. Hanuman Singh Bhati
Dr. Manju Koolwal
(Vice Chancellor,
(Director
University of Rajasthan)
Five Year Law College, Jaipur)

Justice Panachand Jain
(Former Judge Rajasthan High Court)

ADVISORY BOARD
Prof. T. Bhattacharya
(Former Head, Dean, Department of Law)
Prof. N.H. Gupta
(Former Principle, University Law College)
BOARD OF REVIEW
Dr. Bhupesh Rathore
Dr. Sonu Agarwal
Dr. Richa Dangayach
Dr. Veenu Rajpurohit

STUDENT EDITORS
Harshad Kapoor
Harshit Mittal
RULJ (2015) Vol. 1.4
RULJ (2015) Vol. 1.4

VOLUME 1
2015
ISSUE 4
RULJ
Mode of Citation: 4 RULJ 2015
Copyright 2015: Any reproduction or publication of the text of the articles
contained in this journal, without prior permission of University Five Year Law
College, University of Rajasthan, Jaipur is punishable under copyright laws.
Disclaimer: The views expressed by the contributors are personal and do not in any
way represent opinion of the editors.
RULJ (2015) Vol. 1.4
TABLE OF CONTENTS
Editorial
Articles
PANCHAYATI RAJ; THE MAI-BAAP OF INDIAN GOVERNANCE
KUSHAL SINGLA
10
ELECTORAL REFORMS, CONSTITUTIONAL VALIDITY & DECRIMINALISATION: A

MEANS TO AN END
NAMAN JAIN & DIVYANSHU MITTAL
17
ANTI-TERRORISM LAWS IN INDIA: ISSUES ON CONSTITUTIONALITY

PRAGALBH BHARDWAJ
28
KESVANANDA BHARATI V. STATE OF KERALA

RUSHALI SRIVASTAVA & SPANDAN SAXENA
41
NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014:

A CRITIQUE
SAMEER RASHID BHAT & SIDDHANT KHETAWAT
53
JUDICIAL RESPONSE TO WOMENS RIGHTS IN INDIA

SATENDRA PRATAP SINGH
66
ELECTORAL REFORMS IN INDIA- PROSPECTS & CHALLENGES

SHRUTICA PANDEY
86
GIVING EQUAL HEIGHT TO THE THIRD PILLAR : IN THE LIGHT OF MANEKA

GANDHI CASE
SRIJA RAY & ADITI SANGHI
98
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CANONS OF CONSTRUCTION: A DISCUSSION ON THE DIVERSE CONSTITUTIONAL

INTERPRETATION METHODOLOGIES
SRIMOYEE BISWAS
108
POLICY ANALYSIS OF THE TELANGANA GOVERNMENTS MANIFESTO

SWAPNIL TRIPATHI
118
JUDICIAL TREND TOWARDS SENTENCING POLICY IN INDIA

VAIBHAV KUMAR
126
DYNAMICS OF GENDER JUSTICE: PATRIARCHY &FEMINISM IN THE INDIAN

PERSPECTIVE
VISHAL MISHRA
155
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EDITORIAL
We are well aware that the review takes very seriously its role as judge of judges
- and to that, we say, more power to you. By your criticisms, your views, your
appraising cases, your tracing the trends, you render the making of new law a
little easier. In a real sense, you thus help to keep our system of law an open one,
ever ready to keep pace with changing social patterns.
Justice Stanley Flug
Looking forward with a vision that law journals are critical to the proper development of
law and an eminent source of research for the students, academicians and the Bar & the Bench
the inaugural issue of Rajasthan University Law Journal describes in depth, the current state of
the law, and offers analysis of legal policies, rules and history. The Journal is an annual peer
reviewed journal which seeks to provide a forum for engaging in discussions on constitutional
law.
Constitution is not only law but goes beyond. People regard it as an expression of their
aspirations from the State constituted by them. Constitution therefore, is rightly regarded as a
living law. Aspirations of the people change from one generation to another generation.
Therefore, constitutions across the nations are accordingly amended and enriched by the
experiences gained by people over generations.
Our attempt to instigate a spirit of enquiry about several constitutional issues has been duly
supported by researchers from all over the country with inputs ranging from students to
academicians and even practicing lawyers in this issue. These wide varieties of contributions
have indeed motivated us to work hard towards excellence and have also expanded our
knowledge base for a better understanding of the nuances of public law. Though we have
selected few articles from the abundant submissions sent to, we were greatly impressed with the
quality of research work put in by the students and their interest in this field.
Justice Stanley Flug, A Judge Looks at the Law Review, 28 New York University Law Review, 918
(1953).
RULJ (2015) Vol. 1.4
We express our gratitude to the support and guidance extended by our Chief Patron Justice
P.C. Jain, Patrons - Sh. Hanuman Singh Bhati (Vice Chancellor), Dr. Mahesh Koolwal (Dean),
Prof. Manju Koolwal (Director) and all the faculty advisors.
We hope that the articles included in the journal would develop better understanding of the
subjects discussed and turn out to be helpful to readers from every corner of legal fraternity.
(EDITORIAL BOARD)
RULJ (2015) Vol. 1.4
PANCHAYATI RAJ; THE MAI-BAAP OF INDIAN GOVERNANCE

KUSHAL SINGLA
Panchayati Raj in India is as old as the Indian civilisation itself, there are proofs, it existed
in every era whether it be the Vedic age or during the Mahabharata. The system ran finely unto
the demise of the Mughals, it started deteriorating after the death of strong and able Mughal
rulers and the advent of British in India, subsequently, to whom the weak rulers lost the
administration. The British enacted their own system of governance which almost abolished the
Panchayats and Panchayati Raj system, later they realised its significance and tried to re-gain it
but all their labour went down the drain, they could not, ever, re-gain the same essence of the
Panchayati system. And if someone is to be blamed, the weak rulers of the Mughals could be
said to be the whipping boy for the decline of this system. The system, however, started
regaining its existence when India became a welfare state after its independence, with several
changes introduced in it from time to time, and now is the strongest and the most proficient way
of governance starting at the grass root and reaching the bamboo tip i.e. starting at the village
level and reaching the centre.
1. INTRODUCTION
Panchayat, it is a term that became a widely used word after two words from two
different languages consented and combined together. Panch, which is a Sanskrit word, means
five and Ayat, an Arabic word, means assembly1which, when put together, means an assembly
of five people. The modern day Panchayat is not so old but the actual Panchayat, originally, has
been the backbone of the Indian villages since the history is being recorded. There are evidences
that suggest that there had been self-governing bodies called Sabhas in the Rig Vedic Era and
Samitis in later eras. It can also be found in Kautilyas Arthasastra as well as in Abul Fazals
Ain-E-Akbari where the practice of solving local problems under the leadership of elders of
the village could be traced. The same practise is still in vogue with some modifications done, in
its constitution and its working, by the constitutional provisions and recommendations given by
the different committees, after the independence of the India when a new, separate, Act- the
Assistant Professor of Law, Army Institute of Law, Mohali.

Meaning of the word Ayat is ambiguous, it differs from text to text but the most accepted meaning is the smallest
unit of Quran where it is plural form of the word Ayah
1
10
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Constitution (73rd Amendment) Act, 1992 or the 73rd Amendment Act or the Panchayati Raj Act
was passed and came into force w.e.f. 24th April, 1993. The Act talks about the decentralisation
of power in 3 tiers, consisting: Village Panchayat, Block Panchayat and District level Panchayat.
It has been vested with certain powers and authority which may be used, and which is necessary
for a local self-government, during the functioning of the institution.
2. PANCHAYATI RAJ; THE ANTECEDENTS
In the ages when kingship prevailed and the king used to be the fountain head of the
society, all the administrative and judicial powers were vested in him, with a bulk load of works
on him he could hardly pay attention to the remote/village areas of his empire due to which the
people of these areas were left all on themselves, they solved their problems by gathering
somewhere in the village under the leadership of the elder people of the village and sometimes
included the religious heads of the village. There are evidences from around 1700 BC that
suggest that a self-governing body known as Sabha existed during Rig Vedic period which,
later, became the Panchayat or say the council of five people. Panchayats, even during that
period, were the grassroots of the judicial governance as well as the executive affairs, such as
listening petty cases of thieveries, marriages, contracts, collection of taxes, distribution of land
etc., in almost every village with a council having large powers vested in it which could be used
by it whenever required, at the discretion of the council. And above a number of these village
councils there was a larger Panchayat or council to supervise and interfere if necessary. 2 Not
only in Rigveda but many other historical texts like- Manusamhita, Dharmashastras, Upanishads,
Jatakas, Manusmriti, Valmikis Ramayana3, Shantiparva of Mahabharata and Kautilyas
Arthasastra4 there are many references that refer extensively to the local self-governance.
This profound system of self-governance went to its extreme during the reign of Akbar
but, slowly, it started declining with the collapse of Mughals strong hands that brought into
India, with it, the feudalistic5 system of governance and the Panchayati system almost came to an
end with the advent of British through British East India Company. The company got the
Local self Government, Local self government in India available at http://en.wikipedia.org/wiki/Local_selfgovernment_in_India (last visited on February 03, 2014 at 6:57)
3
Ghosh Rathna & Pramanik Alok Kumar, Panchayat System in India. Historical, constitutional and Financial
Analysis (1999).
4
Id.
5
Feudalism was a system in which people were given land and protection by people of higher rank.
11
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Diwani rights6 from Shah Alam II by defeating his Army at Buxar in 1765. The Company,
with time, established many offices like local civil, criminal and revenue courts. It abolished
village police and established Magistrates office that carried the functions of police with the
name of Daroga who came under Mufassil Faujdar Adlat. The situation of Panchayats went
from bad to worse due to the famine in Bengal in the year 17707, it completely destroyed the
village Panchayat which. Later, the British East India Company tried to restore it by giving some
powers to try petty cases, it passed many resolutions and introduced many other reforms like the
Ripon Resolution- passed on 18th May, 1882 that focused on the policy of decentralisation but
the rural areas were kept deprived of it. Montague-Chemford, with his reforms in 1919, tried to
bring in- the local self-governance but due to the organisational and financial restraints he failed
to make the Panchayati system truly democratic in virtue. A nictate of the rise of Panchayats can
be seen after the enactment of the Government of India Act in 1935 when the provincial officers
enacted legislations to democratise the local self-government but, yet again, they failed to apply
it to the very grass root of the society i.e. in the villages. They took many measures, but in vain,
the company could not recover the same essence of Panchayats. Maybe thats why they say-once
gone, gone forever.
For the re-establishment of Panchayats there was a bifurcation of minds even among the
Indian leaders like- where Mahatma Gandhi was in favour of bringing in the village Swaraj by
strengthening the village Panchayats, Dr. B. R. Ambedkar was against it, maybe that is the
reason why the Panchayati system was kept in the non-justifiable part8 while drafting the
constitution of India.
3. PANCHAYATI RAJ; THE RESURRECTION
To come into the shape, in which it is today, it had to travel a real long way after the
adoption of the constitution of India. Such was the virtue of Panchayati system that it, from the
status of non-justifiable, got a separate Act enacted for it with the 73rd Amendment of the
Constitution and got itself enshrined in its 9th part. But this amendment wasnt a cake walk, for it
had to go through several stages of changes that started with the failure of establishing
decentralisation by the 1st and 2nd five year plan consecutively, it was then decided to form
6
The right to collect revenues.

Many folklore conveys that the famine came due to the depredation of the Patwari and Daroga.
8
The Directive Principles of State Policy.
7
12
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committees for their advices to the centre on its different aspects. The first committee that sowed
the seeds of Panchayati Raj system was the Balwant Rai Mehta Committee9, it was appointed in
January 1957 with a motto to examine the functioning, and suggest the ways to make it better, of
the Community Development Programme, 1952 and the National Extensive Services, 1953 and
to the surprise of Government, it came up with a suggestion to establish Democratic
decentralisation which was nothing but the judicio-political term that in laymans language
meant Panchayati Raj system of governance. The recommendations of the committee which was
the establishment of a 3-tier Panchayati Raj system consisting of a Zila Parishad at district level,
a Panchayat Samiti at Block level and a Gram Panchayat at village level, was adopted by the
Government of India after the approval of NDC10 in January, 1958. It was later incorporated in
the Constitution of India as the 9th Part by the 73rd Amendment Act, 1992 but before the
incorporation many changes were introduced into it as several issues arose with the Panchayati
Raj Institutions (hereinafter PRIs), the PRI structure as suggested by the Balwant Rai Mehta
Committee, somehow, failed to implement the required democratic rule in rural areas and hence
in 1978 a new committee chaired by Ashok Mehta was substituted to find the causes for the
failure and suggest the solution for the same. The important recommendations made by this
committee were: to turn the PRIs a two-tier system with mandal Panchayat at the base and the
Zila Parishad at the top, to let PRIs do their planning as they were capable of doing so with the
resources available to them, to let the district planning take care of the urban-rural continua, to
let the SCs and STs represent themselves in the elections of PRIs according to their population,
to let political parties participate in the elections of the PRIs and the term of PRIs to be of four
years.11 Few of the states passed their own legislation based on this report but, the big fish did
not want the smaller one to grow big and tried to eat it, the politics at higher level i.e. the state
level didnt allow these PRIs to establish their own entity in the vicinity of politics and hence,
soon, a new committee- G. V. K. Rao Committee was set up in the year 1985 by the Government
of India to examine, again, the various aspects of the PRIs, it recommended the PRIs to be
Balwant Rai G Mehta committee report Report of the team for the study of community projects and national
extension service, (1957) committee on plan projects, New Delhi available at http://www.docstoc.com/docs/26899459/balwant-rai-mehta-and-balwant-rai-mehta-committee-report-_1957_ (last visited on February 3,
2014, 9:48)
10
National Development Council.
11
Ashok Mehta committee report, Ashok Mehta committee report available at http://xmnotes.wordpress.com/2010/07/05/-ashok-mehta-committee-report/ july 5, 2010 (last visited on February 6, 2014 at 05:37)
9
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provided with all the supports required to become an effective organisation, to assign the PRIs at
district and the levels below it with the works like planning, implementation and monitor the
rural development programmes and the block level offices to be made the spinal cord of the rural
development process.12 Even after the implementation of these recommendations of Rao
committee there was still something missing in the System and yet another committee was
appointed in 1986, headed by L. M. Singhvi. This committee, even after studying the Panchayati
Raj in its entirety, did not recommend many changes to it but whatever it did recommend proved
to be of utter importance for the existence of the Panchayat and Panchayati Raj system. It
recommended the local government to be recognised, preserved and protected constitutionally
by the inclusion of a new chapter in the constitution and the political parties to stay away from
the Panchayat elections13, as it was the only way that could facilitate the actual participation of
local people and not the people already having any political background or the people who join
politics for politics and noting else. The recommendation of giving Panchayat constitutional
status was opposed by the Sarkaria Commission and after two failures, first by the 64th
Amendment bill and second by the 74th Amendment bill, which were both introduced in 1989
and none of which could become an Act due to some or the other reason. It was then in 1992, the
Constitutional (73rd Amendment) Act passed by the government of P. V. Narasimha Rao that
came into force form 24th April, 1993 that marked a new era of federal democracy which was
federal in the deepest of its meaning. A new part, Part IX, was added to the constitution,
constituting of Arts. 243 to 243 (O) and a new schedule, viz. eleventh schedule has also been
added.14 The Act applied everywhere except the schedule V and Schedule VI areas 15 with, the
main objective to establish constitutional autonomy functioning at village level, its five main
features- First, the establishment of a 3-tier system of Panchayati Raj for all States having
population of over 2 million. Second, Panchayat elections to be held every 5 years. Third, the
reservation of seats for Scheduled Castes, Scheduled Tribes and women (not less than one-third
12
G. V. K. Rao (Chairman), committee on administrative arrangements for rural development and poverty
alleviation programmes, Department of rural development ministry of agriculture, 1985, New Delhi.
13
L. M. Singhvi committee report, 1986.
14
M. P. Jain, Indian Constitutional Law (Sixth ed.), 2010.
15
It included following states and areas- Nagaland, Meghalaya, Mizoram, Andhra Pradesh, Bihar, Gujarat,
Himachal Pradesh, Madhya Pradesh, Maharashtra, Orissa, Rajasthan, hill areas of Manipur, hill areas of Darjeeling
in the West Bengal.
Also nothing in the article 243D, relating to reservation of seats for the scheduled caste was to be applied to the state
of Arunachal Pradesh.
14
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of seats). Fourth, the appointment of State Finance Commission to make recommendations as

regards the financial powers of the Panchayats. And fifth, the constitution of District Planning
Committees to prepare development plans for the district as a whole.16 Thus, it has been vested
with abovementioned powers and authorities which it may use, and which are deemed to be
necessary for local self-government, during the functioning of the institution. And hence started
the reign of people and the Panches.
4. PANCHAYATI RAJ; STRUCTURE, CONSTITUTION & FUNCTIONS.
The Panchayats, as recommended by the Balwant Rai Mehta committee, has a 3-tier
system consisting of Village level, Block-level and District level Panchayats. Any village having
population of 500 (above 18 years of age) or more can constitute a village or Gram Panchayat
by electing 7 to 20 (as per the requirement/population of the village) Panches headed by a
Sarpanch. The Sarpanch is responsible for the construction and maintenance of the roads,
markets, looking after public hygiene, providing free education keeping records of deaths,
marriages and births in village and holding the meetings of Gram Sabha17 and Gram Panchayat.18
Block or Tehsil level Panchayat is an office headed by a Chairman and his deputy Chairman
elected every five year and comprises of the ex-official members viz. The Sarpanches, the MPs
and MLAs of that area and the SDO of the subdivision, Cooperative members, associate
members and some elected members. It has different names in different places like, Mandal
Panchayat in Karnataka, Panchayat Samiti in Maharashtra Taluk Panchayat in Gujrat etc. Its
main departments are: general Administration, Finance, Education etc. with an exclusive officer
for every department and BDO as its chief. The functions of this level of Panchayat are to
implement the schemes for the development of agriculture, establishment of primary health care
centres, primary schools, youth organisation etc.19 The third and the highest level of the
Panchayati system is the district level Panchayat, known as Zila Parishad headed by an officer
of IAS cadre. Few of the important functions of the Zila parishad are to: provide essential
services and facilities to the rural population, to supply improved seeds to farmers and inform
16
Issues of India, Panchayat Raj System in India, September 6, 2012 available at http://socialissuesindia.wordpress.com/2012/09/06/panchayat-raj-system-in-india/ (last visited on February 6, 2014 at 7:32)
17
Includes all the adults, of voting age, of the village having population of 750- 25,000. The meeting of a Gram
Sabha should be held at least twice a year.
18
Panchayati Raj available at http://en.wikipedia.org/wiki/Panchayati_raj (last viewed on 11th February, 2014 at
07:30)
19
id
15
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them of new farming techniques. To start primary health centers and hospitals in villages to, start
vaccination drives against epidemics, to execute plans for the development of the scheduled
castes and tribes. Run ashramshalas for adivasi children. Set up free hostels for them, provide
employment etc.20
When it comes to the governance at any level, who could be the best government but the people,
to be ruled, themselves and isnt it the tagline of a democratic country-democracy is of the
people, by the people and for the people?
20
id
16
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ELECTORAL REFORMS, CONSTITUTIONAL VALIDITY &

DECRIMINALISATION: A MEANS TO AN END
NAMAN JAIN & DIVYANSHU MITTAL
Democracy empowers the people to elect their own leaders. In recent days, the whole
concept of the electoral system has witnessed staggering changes in the past century. The idea of
free and fair elections along with the independence of voters has been the paramount agenda of
the Election Commission. However, recent reports and statistics have suggested staggering rise
of criminal activites in the electoral spherer, which make reforms necessary to uphold the true
ideals of our democracy. This paper delibratees upon certain key issues vis-a-vis electoral
reforms like deciminalisation, RTI, and the concept of absentee ballot. It is observed that the
criminalisation of politics has been a major cause of concern for quite some time but the
Parliament has still not taken any concrete step redressing the same. The Honble Supreme Court
has taken significant steps through the various court judgements to separate governance from
crime, coupled with several suggestions from the many Law Commission Reports. Large
amounts of money are spent in canvassing and rallying need regulation and supervision. A
country likes ours can do better with those extravagant sums. The contribution of some regional
parties to national progress is questionable and negative. All this makes the voters demand
information, and paves way for the Right to Information Act, 2005.
3rd Year, Rajiv Gandhi National University of Law, Patiala, Punjab.
17
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1. INTRODUCTION
It is a matter of great pride that India is termed as the worlds largest democracy, that is,
the democracy ruling over the most number of people. It is ingrained within the core of this great
democracy the concept of representation and a sense of inclusion and participation which is
facilitated by the elected representatives who deliberate and thereupon pass legislations on the
behalf of the people, and for their benefit. The idea was first conceived in ancient Greece,
wherein the term of democracy was coined from the words that is demos i.e. people and
krates which means to rule. It originated from the city state of Athens during when the citystate set about with an experimentation of a formation of government such that all laws of the
state were made by the citizens themselves and not by the king or a group of wealthy and
powerful aristrocrats. In India, Parlimentary from of Democracy is practiced over Presidential
democracy, wherein we follow a format of elections whereby representatives at every level of
governance(MP, MLA and councillors/sarpanch). The representatives serve the citizens. The
promise of development is made and there is a hope for change. The complete picture is
portrayed before all prospective and eligible voters. Nevertheless, the assiduous duty of the
voters is to introspect before accepting themselves to good citizens and voter.
The question that arises is how prudent we are on our part in electing these leaders? How
much faith is reciprocated by such representives? What are the stakes of such promised
development ? Who is to made accountable for the change that is expected by the voters ? Such
questions are highly probably upon introspection. Much ponderance is not required by the
subjects of good governance. If such substantial ponderance is required then it implies that the
governance of such government is far from being ideal or an archetype of perfection. Thus, a call
for change is apt. Change in the working of such a system, change in the public perception of
such working and change in the public want for such working. A complete upheaval of such a
system is on the cards. No such significant change in the system of governance towards
establishing such an epitome of prefect governance is possible without institution of such
transformation at the grassroots, eventually zeroing down to investigating the conduction of
elections and the extent of reformation required. This means reviewing everything from the
identifiying of candidates to the establishment of who should be in his place. Matters of
common welfare of the citizens can be addressed by a responsible government, by ensuring that
18
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the correct steps are taken in conducting elections and zeroing down to reformation of such
elections.
In this paper, it has been our intention to address the following issues :
a. Who must rule : The essential competencies and capabilities which have to be considered
by the voters in electing such representatives. Practice selection before elction,
b. Proposition : The suggestions by reports, eminent jurists and committees for reformation.
2. WHO MUST RULE
Its not important to merely hold elections. In fact, there is no point of holding elections if
they are not free and fair. The importance of free and fair elections stems from two factors
instrumentally, its central role in selecting the persons who will govern the people, and
intrinsically, as being a legitimate expression of popular will.21 Even the apex court emphasised
on the importance of conducting free and fair elections in Mohinder Singh Gill v. Chief Election
Commissioner22and other landmark cases. Broadly speaking, there are two factors which need to
be kept in mind when providing the prospective candidates with election tickets in order to
ensure free and fair elections. These are criminal behaviour and educational qualifications.
Earlier, the trend had been of seeing many elected members and politicians being
supported, or at least influenced, by criminal groups. Their nexus could well be discovered by a
large number of people in the country. However, things have changed. Instead of people being
supported or helped by criminal groups, the candidates who have now started to step into
elections are criminals themselves. Probably one of the greatest issues in dealing with electoral
reforms is whether a person must be allowed to contest elections owing to criminal charges
levelled against him/her. This question has bothered legislators of many governments in the past,
and continues to bother them even still. Those who break the law should not be allowed to make
the law.23 There would hardly be anybody liking to be ruled by criminals. Therefore, the
proposition of banning people having criminal records from contesting elections would not face
a lot of opposition. Sadly, there has been a high degree of infiltration to the parliament by rulers
who have been accused of crimes- many of which being serious crimes like murder, rape,
dacoity, extortion, kidnapping, etc. In the ten years since 2004, about 18% of candidates
20TH LAW COMMISSIONS 244TH REPORT ON ELECTORAL DISQUALIFICATIONS (2014)

Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405,
23
K Prabhakaran v. P Jayarajan, (2005) 1 SCC 754
21
22
19
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contesting either National or State elections have had criminal cases pending against them
(11,063 out of 62,847). In 5,253 or almost half of these cases (8.4% of the total candidates
analysed), the charges are of serious criminal offences that include murder, attempt to murder,
rape, crimes against women, cases under the Prevention of Corruption Act, 1988, or under the
Maharashtra Control of Organised Crime Act, 1999; offences which on conviction would result
in five years or more of jail. 152 candidates had 10 or more serious cases pending, 14 candidates
had 40 or more such cases and 5 candidates had 50 or more cases against them.24The 5,253
candidates with serious cases together had 13,984 serious charges against them. Of these
charges, 31% were cases of murder and other murder related offences, 4% were cases of rape
and offences against women, 7% related to kidnapping and abduction, 7% related to robbery and
dacoity, 14% related to forgery and counterfeiting including of government seals and 5% related
to breaking the law during elections.
Criminal backgrounds are not limited to contesting candidates, but are found among
winners as well. Of these 5,253 candidates with serious criminal charges against them, 1,187
went on to winning the elections they contested i.e. 13.5% of the 8,882 winners analysed from
2004 to 2013. Overall including both serious and non-serious charges, 2,497, or28.4% of the
winners, had 9,993 pending criminal cases against them. In the current Lok Sabha, 30% or 162
sitting MPs have criminal cases pending against them, of which about half i.e. 76 have serious
criminal cases. Further, the prevalence ofMPs with criminal cases pending has increased over
time. In 2004, 24% of Lok Sabha MPs had criminal cases pending, which increased to 30% in
the 2009 elections. The situation is similar across states with 31% or 1,258 out of 4,032 sitting
MLAs with pending cases, with again about half being serious cases. From this data it is clear
that about one-third of elected candidates at the Parliament and State Assembly levels in India
have some form of criminal taint. Data elsewhere suggests that one-fifth of MLAs have pending
cases which have proceeded to the stage of charges being framed against them by a court at the
time of their election. Even more disturbing is the finding that the percentage of winners with
criminal cases pending is higher than the percentage of candidates without such backgrounds.
While only 12% of candidates with a clean record win on average, 23% of candidates with
24
Association for Democratic Reforms, PRESS RELEASE - TEN YEARS OF ELECTION WATCH: COMPREHENSIVE
REPORTS ON ELECTIONS, CRIME AND MONEY (2013), http://adrindia.org/sites/default/files/Press%20Note%20%20Ten%20Years%20of%20Elections,%20Crime%20and%20Money_0.pdf (last updated March 4, 2014);
Trilochan Sastry, Towards Decriminalisation of Elections and Politics, ECONOMIC & POLITICAL WEEKLY (2014).
20
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some kind of criminal record win. This means that candidates charged with a crime actually fare
better at elections than clean candidates.25
The Honble Supreme Court has delivered several judgments from time to time tackling
the problem of increasing criminal influence over politics in the recent past. Quoting the 20th
Law Commissions 244th Report on Electoral Disqualification, specifically, orders of the
Supreme Court seeking to engender a cleaner polity can be classified into three types: first,
decisions that introduce transparency into the electoral process; second, those that foster greater
accountability for holders of public office; third, judgments that seek to stamp out corruption in
public life.
In Union of India v. Association for Democratic Reforms26, the Supreme Court directed the
Election Commission to call for certain information on affidavit of each candidate contesting for
Parliamentary or State elections. Particularly relevant to the question of criminalisation, it
mandated that such information includes whether the candidate is convicted/acquitted/discharged
of any criminal offence in the past, and if convicted, the quantum of punishment; and whether
prior to six months of filing of nomination, the candidate is accused in any pending case, of any
offence punishable with imprisonment for two years or more, and in which charge is framed or
cognizance is taken by a court. The constitutional justification for such a direction was the
fundamental right of electors to know the antecedents of the candidates who are contesting for
public office. Such right to know, the Court held is a salient facet, and the foundation for the
meaningful exercise of the freedom of speech and expression guaranteed to all citizens under
Article 19(1)(a) of the Constitution. Again in Peoples Union for Civil Liberties v. Union of
India27, the Supreme Court struck down Section 33B of the Representation of People (Third
Amendment) Act, 2002 which sought to limit the ambit of operation of the earlier Supreme
Court order in the ADR case. Specifically it provided that only the information that was required
to be disclosed under the Amendment Act would have to be furnished by candidates and not
pursuant to any other order or direction. This meant, in practical terms, that the assets and
liabilities, educational qualifications and the cases in which he is acquitted or discharged of
criminal offences would not have to be disclosed. Striking this down, the Court held that the
20TH LAW COMMISSIONS 244TH REPORT ON ELECTORAL DISQUALIFICATION (2014).
Union of India v. Association for Democratic Reforms & Ors., (2002) 5 SCC 294.
27
Peoples Union for Civil Liberties v. Union of India, (2002) 5 SCC 294.
25
26
21
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provision nullified the previous order of the Court, infringed the right of electors to know, a
constituent of the fundamental right to free speech and expression and hindered free and fair
elections which is part of the basic structure of the Constitution. It is pursuant to these two orders
that criminal antecedents of all candidates in elections are a matter of public record, allowing
voters to make an informed choice.
At the same time, the Supreme Court has also sought to foster greater accountability for
those holding elected office. In Lily Thomas v. Union of India28 the Court held that Section 8(4)
of the RPA, which allows MPs and MLAs who are convicted while serving as members to
continue in office till an appeal against such conviction is disposed of, is unconstitutional. Two
justifications were offered first, Parliament does not have the competence to provide different
grounds for disqualification of applicants for membership and sitting members; second, deferring
the date from which disqualification commences is unconstitutional in light of Articles 101(3)
and 190(3) of our Constitution, which mandate that the seat of a member will become vacant
automatically on disqualification.
In Peoples Union for Civil Liberties v. Union of India29, the court held that the provisions
of the Conduct of Election Rules, 1961, which require mandatory disclosure of a persons
identity in case he intends to register a no-vote, is unconstitutional for being violative of his
freedom of expression, which includes his right to freely choose a candidate or reject all
candidates, arbitrary given that no analogous requirement of disclosure exists when a positive
vote is registered, and illegal given its patent violation of the need for secrecy in elections
provided in the RPA and widely recognised as crucial for free and fair elections. Thus, by
allowing voters to express their dissatisfaction with candidates from their constituency for any
reason whatsoever, the Supreme Court order has a significant impact in fostering greater
accountability for incumbent office-holders. When its impact is combined with the decision in
Lily Thomas, it is clear that the net effect of these judgments is to make it more onerous for
criminal elements entrenched in Parliament from continuing in their positions.
Third, the Supreme Court has taken several steps for institutional reform to sever the
connection between crime and politics. In Vineet Narain v. Union of India30 a case concerning
28
Lily Thomas v. Union of India, (2013) 7 SCC 653

Peoples Union for Civil Liberties v. Union of India, (2013) 10 SCC 1
30
Vineet Narain v. Union of India, (1998) 1 SCC 226
29
22
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the inertia of the Central Bureau of Investigation (CBI) in investigating matters arising out of
certain seized documents known as the Jain diaries which disclosed a nexus between
politicians, bureaucrats and criminals, who were recipients of money from unlawful sources, the
Supreme Court used the power of continuing mandamus to direct large-scale institutional reform
in the vigilance and investigation apparatus in the country. It directed the Government of India to
grant statutory status to the Central Vigilance Commission (CVC), laid down the conditions
necessary for the independent functioning of the CBI, specified a selection process for the
Director, Enforcement Directorate (ED), called for the creation of an independent prosecuting
agency and a high-powered nodal agency to co-ordinate action in cases where a politicobureaucrat-criminal nexus became apparent. These steps thus mandated a complete overhaul of
the investigation and prosecution of criminal cases involving holders of public office.
The National Commission to Review of the Working of the Constitution (2002) also
maintained the yardstick for disqualification as framing of charges for certain offences
(punishable with maximum imprisonment of five years or more). There were however certain
modifications in its recommendations. First, the Commission proposed that this disqualification
would apply from one year after the date of framing of charges and if not cleared within that
period, continue till the conclusion of trial. Secondly, in case the person is convicted of any
offence by a court of law and sentenced to imprisonment of six months or more, the period of
disqualification would apply during the period of sentence and continue for six years thereafter.
Thirdly, in case a person is convicted of heinous offences, it recommended a permanent bar from
contesting any political office. Fourthly, it recommended that Special Courts be set up at the
level of the High Courts (with direct appeal to the Supreme Court) to assess the legality of
charges framed against potential candidates and dispose of the cases in a strict time frame.
Finally, it recommended de-registration and de-recognition of political parties, which knowingly
fielded candidates with criminal antecedents.
The Election Commission of India has also made several recommendations from time to
time to reform election law. In August, 1997, it mandated filing of affidavits disclosing
conviction in cases covered under Section 8 of the RPA. In September 1997, the Commission in
a letter addressed to the Prime Minister recommended amendment to Section 8 of RPA, to
disqualify any person who is convicted and sentenced to imprisonment for six months or more,
23
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from contesting elections for a period totalling the sentence imposed plus an additional six years.
In 1998, the Commission reiterated its above suggestion besides recommending that any person
against whom charges are framed for an offence punishable by imprisonment of five years or
more should be disqualified. The Commission admitted that in the eyes of law a person is
presumed to be innocent unless proved guilty; nevertheless it submitted that the Parliament and
State Legislatures are apex law-making bodies and must be composed of persons of integrity and
probity who enjoy high reputation in the eyes of general public, which a person who is accused
of a serious offence does not. Further, on the question of disqualification on the ground of
corrupt practice, the Commission supported the continuation of its power to decide the term of
disqualification of every accused person as uniform criteria cannot be applied to myriad cases of
corruption- ranging from petty to grand corruption.
3. PROPOSITION: SUGGESTED AMENDMENTS
CREATION OF AN ELECTION CRIMES TRIBUNAL
The instances of violation of Model Code of Conduct are at its peak in the build up to the
elections, particularly in the build up to the general elections. On a written reply to Rajya Sabha
by the former law minister Salman Khurshid, it was informed that the Election Commission of
India had informed the Rajya Sabha that Model Code of Conduct being a voluntary set of
guidelines given by the political parties unto themselves, there is no penal provision mentioned
therein.31 However, on careful examination of Model Code of Conduct, there are certain
provisions, the violation of which also constitutes violation of some provisions in the election
laws, or even the Code of Criminal Procedure in many circumstances 32. The violations are
punishable in a court of law. In cases of, inter-alia, violation of Model Code of Conduct by a
political party, the Commission can, after giving reasonable opportunity of showing cause,
subject to such terms as the Commission may deem appropriate, either suspend or withdraw the
recognition of a party as a National or State Party, as the case may be.33
31
Press Information Bureau, VIOLATION OF THE MODEL CODE OF CONDUCT,

http://www.pib.nic.in/newsite/erelease.aspx?relid=83354 (last updated Feb. 1, 2015).
32
Election Commission of India, MODEL CODE OF CONDUCT FOR THE GUIDANCE OF POLITICAL PARTIEs,
http://eci.nic.in/eci_main/MCC-ENGLISH_28022014.pdf (last updated Feb. 1, 2015).
33
Id.
24
RULJ (2015) Vol. 1.4
It is very important here to note that Model Code of Conduct has no statutory backing and
many of its provisions are not legally enforceable34, for example, most of the model sanctions
included in the code. The politically conscious state of Kerala was the first state to implement the
Model Code of Conduct in the assembly elections in 1960.35 On the eve of the general elections
in Kerala, the state administration along with the organized political parties in the state evolved a
Code of Conduct for free and fair observance of the assembly elections.36
With the code of conduct being an integral part of free and fair elections, it is very
important that its integrity should be upheld in every manner possible. As a matter of fact, it is
not only about the Model Code of Conduct being properly enforced. Any other act being
committed by candidates which is against the law of the land in an election needs to be strictly
taken in cognizance and punished accordingly. For the violations which are mentioned both in
the code of conduct and are also punishable, a separate Election Crimes Tribunal should be set
up where the day to day hearing of the matters should take place and a the candidature of an
election hopeful should be cancelled in case he is found guilty of a very serious election related
offence. This tribunal should also act as a watchdog in less serious cases, should serve regular
notices and should be given the power to cancel the candidature of habitual offenders after
giving them time to reply to a show cause notice.
The election commission is already over burdened as they have the responsibility to
conduct free and fair elections all over the country. Setting up a separate crimes tribunal for these
cases will speed up the proceedings against the offenders and make sure that such offenders are
strictly dealt with. There is a need to filter the kind of people who are currently entering the
arena of politics and the way in which the offenders are let off easily is not the standards that are
expected from the largest democracy in the world.
34
V.S. Rama Devi & S.K. Mendiratta, HOW INDIA VOTES, ELECTION LAW PRACTICE AND PROCEDURE 629, (2d ed.
2006).
35
Press Information Bureau, MODEL CODE OF CONDUCT & ITS
EVOLUTION,http://pib.nic.in/newsite/efeatures.aspx?relid=104399 (last updated Mar. 1, 2015).
36
Id.
25
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NEED TO INCREASE THE SECURITY DEPOSIT OF CANDIDATES37

Under Section 34 of the RPA, 195138, each candidate for election to the House of the
People is required to deposit an amount of Rs.10,000/- as security deposit.39 For State Assembly
elections and elections to the Council of States and Legislative Councils, the security deposit is
Rs.5, 000/.The amount of security deposit was last revised in 1996, raising the earlier amount of
Rs. 500/- for Lok Sabha elections and Rs.250/- for Assembly elections to the current levels.40
The revision was made primarily to discourage non-serious candidates from jumping to the
electoral arena. There were instances in the past where hundreds of candidates filed nominations
from some constituencies with the intention of upsetting the election process there. In the current
scenario, with the advent of electronic voting, more number of candidates will lead to more
voting machines which will increase the expenditure on polls. Thus in compliance to the Election
Commission of India report (2004), there is a strict need to change the security deposit of the
candidates so as to keep a tab on the election expenditure.
RESTRICTION ON THE NUMBER OF SEATS THAT A CANDIDATE MAY CONTEST
FROM4142
As per the law as it stands at present [Sub-Section (7) of Section 33 of the RPA, 195143], a
person can contest a general election or a group of bye-elections or biennial elections from a
maximum of two constituencies. In various cases, the eminent people who are sure of an election
win may contest from two or more places just to be sure of their win in the election. After the
win, the consequence will be that a by-poll will have to take place which will result in use of
labour and expenditure as a result of by poll. Thus, one candidate should not be allowed to
contest election from more than one constituency.
Another reform that has been suggested regarding this proposal is to increase the amount of
money that is deposited as security for the second seat that a candidate is contest the election
37
Election Commission of India, Proposed Electoral Reforms,

http://eci.nic.in/eci_main/PROPOSED_ELECTORAL_REFORMS.pdf (last updated Apr. 2, 2015).
38
Representation of Peoples Act, 34 (1951).
39
Supra note 17.
40
Supra note 17.
41
Supra note 15.
42
Law Commission of India, RELEVANT LEGISLATIVE PROVISIONS,
http://lawcommissionofindia.nic.in/lc170.htm#RELEVANT%20LEGISLATIVE%20PROVISIONS (last updated
Apr. 2, 2015).
43
Representation of Peoples Act, 33(7) (1951).
26
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from. This may, to some extent, cover for the expenditure that takes place for the by-poll that
may take in the future.
EXPLORING THE RIGHT TO INFORMATION
The entire political system in India revolves around the Political Parties. They perform
public functions and, therefore, warrant to be declared public authority under section 2(h) of
the RTI Act. They are a unique institution of the Indian constitutional State. These are essentially
civil society institutions and are, therefore, not governmental.44 Their uniqueness lies in the fact
that in spite of not being governmental, Political Parties come to wield or directly or indirectly
influence, exercise of governmental power.45 It is this link between State power and Political
Parties that has assumed critical significance in the context of the Right of Information an Act
which has brought into focus the imperatives of transparency in the functioning of State
institutions. It is said that the political parties represent the people and reflect the will of people.
Thus, political parties should come to terms with the fact that they need to accept transparency in
order to increase their accountability and to boost a sense of surety in the minds of people which
is lacking. The laws of the land do not make it mandatory for Political Parties to disclose the
sources of their funding, and even less so the manner of expending those funds.46 In the absence
of such laws, the only way a citizen can gain access to the details of funding of Political Parties
is through their Income Tax Returns filed annually with Income Tax authorities.47 This is about
the closest the Political Parties get to accounting for the sources and the extent of their funding
and their expenditure. There is unmistakable public interest in knowing these funding details
which would enable the citizen to make an informed choice about the Political Parties to vote
for. The RTI Act emphasizes that democracy requires an informed citizenry and that
transparency of information is vital to flawless functioning of constitutional democracy. It is
nobodys case that, while all organs of the State must exhibit maximum transparency, no such
obligation attaches to Political Parties.48 But funding and the working of the political parties are
areas where they need to have at least some amount of transparency and it is very natural on the
part of the people to expect that.
44
Anil Bairwal v. Parliament of India, (2013) CCI 640.

Id.
46
Id.
47
Id.
48
Id.
45
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ANTI-TERRORISM LAWS IN INDIA: ISSUES ON CONSTITUTIONALITY

PRAGALBH BHARDWAJ
The Indian Penal Code (hereinafter referred to as IPC) includes a variety of crimes related
to security and public order49, crimes such as sedition50 also form a part the IPC and the criminal
offence of promoting enmity between different groups based upon identity, and doing acts
prejudicial to the maintenance of harmony is also qualify as offences under the aforesaid
code.51 The commission of any of these prohibited acts with intent constitutes the commission of
a criminal offence. It is also an offence under Indian law to help or even persuade or encourage
any another person to commit them52, attempt in vain to commit them53 or plan to commit
them.54 They are all offences under the Criminal Law of India. The security laws of past and
present in India have effectively functioned in conjunction with the Indian Penal Code which
provides with the characterization and the descriptions of the substantive offences, and the Code
of Criminal Procedure (hereinafter referred to as CrPC), which provides with the rules of
criminal procedure. India has actively added different types of laws to its national security
arsenal over time, from preventive detention laws to laws authorizing domestic use of the
military to anti-terrorism laws. While the types of laws dealing with the issue have grown a lot,
the substantial content of laws falling within any particular category has remained rather
consistent. In this paper, the attempt is to understand the consequences which result because of
the enhanced power which is accorded due to these legislations. In this paper I will discuss
various recent active or otherwise laws relating to anti-terrorism in India. Additionally, this paper
attempts to look into greater depth of the concerns of the Human Rights Organisations regarding
extraneous powers of these legislations enacted by the government to deal with the issue of
terrorism. I will also discuss the role of the Supreme Court in dealing with the various
constitutional questions raised in various cases relating to these laws.
3rd Year, B.A. LL.B. , National Law University, Odisha.

Indian Penal Code, 1860, Chapter VI, VIII.
50
Indian Penal Code, 1860, 124 (A).
51
Indian Penal Code, 1860, 153 (A).
52
Indian Penal Code, 1860, 107-120.
53
Indian Penal Code, 1860, 511.
54
Indian Penal Code, 1860, 120 (A)-120 (B).
49
28
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1. TERRORISM IN INDIA
Terrorism in India has grown to a great extent in the last two or three decades. India is
facing miscellaneous challenges in the supervision of its internal security. There is an upsurge of
terrorist activities, strengthening of cross border terrorist activities and insurgent groups in
different parts of the country. As of today, the issue of terrorism has acquired global magnitude
and has become the challenge for the whole world. The methods adopted by terrorist
organizations include taking advantage of modern means of communication and technology,
using high tech facilities existing in the form of communication system, transport, sophisticated
arms and other such resources. This strengthening of their methods has enabled them to strike
and create terror among people at will. The issue of terrorism has massively affected India as
well. The reasons for terrorism in India diverge enormously from religious causes to reasons like
poverty, unemployment etc.
2. LAWS RELATING TO PREVENTION OF TERRORISM IN INDIA
The Indian Supreme Court in the famous 1994 case of Kartar Singh v. State of Punjab55
made an observation that India has been in the firm grip of ever strengthening terrorist violence
and is caught between the lethal pangs of disruptive activities. The country is facing varied
challenges in the administration of its internal security. There is a noticeable upsurge in terrorist
activities, intensification of cross border terrorist activities and insurgent groups in different parts
of the country. In the next part of this paper, we shall discuss in brief the various laws in place to
deal with the terrorist activities.
PREVENTIVE DETENTION LAWS
The Indian Constitution is the only constitution in a democratic country which clearly
authorizes preventive detention. The Constitution of India authorizes national and state
legislatures to enact preventive detention laws. Preventive detention laws can be passed not only
for national or state security, but also for the purposes of maintaining public order, and for
maintaining supplies and services essential to the community nationally or otherwise.56 Shortly
after the Indian Constitution came into force, it was in the year 1950 that The Preventive
Detention Act57 (hereinafter referred to as PDA) was passed. This law allowed the government
55
Kartar Singh v. State of Punjab [1994] 3 SCC 569.

INDIA CONST. List III, Entry 3.
57
The Preventive Detention Act, Act No. 4 of 1950.
56
29
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to detain individuals without any charge whatsoever for a period extending to a year. During the
beginning stage, this Act was passed generally as a brief, twelve-month measure to manage the
difficulties of administering after the brutality and relocation during the partition of India 58. The
Minister of Home Affairs informed the Parliament that permanent preventive detention powers
required closer study prior to passing of more lasting legislation.59 The Act was, however,
improved and renewed time and again for nearly two decades, ultimately being allowed to perish
in the year 1969.
The National Security Act, 198060 (hereinafter referred to as NSA) granted preventive
detention powers similar to those in the Preventive Detention Act. The NSA still continues to be
in force. In the year 1967, the national government supplemented its preventive detention powers
when a new law known as the Unlawful Activities (Prevention) Act61 (hereinafter referred to as
UAPA) gave it the authority to pronounce organizations as unlawful and subsequently limit
their activities and analyse their members to a significant degree. Just as persons could be
nominated as potentially dangerous and detained without a trial, organizations too could now be
nominated as suspects, without the State having to prove those suspicions to a criminal standard
of proof in a court of law. Once the government branded an organization as unlawful, this label
formed the basis for criminalizing membership or support of any kind to the organization.
Moreover, in addition to preventive detention laws, legislation was also passed that granted the
executive greater power to use force than is authorized under the CrPC. It was in the month of
September of 1958 that the Indian Parliament passed the Armed Forces (Special Powers) Act62
(hereinafter referred to as AFSPA), which improved the domestic, civilian powers of the armed
forces, empowering the military to operate together with the police in the marked disturbed
areas.
It has to be noted that the individuals in preventive detention are not accorded the due
process rights that the Constitution of India provides for persons arrested and tried under regular
58
Pradyumna K. Tripathi, Preventive Detention: the Indian Experience, 9 AMERICAN JOURNAL OF COMPARATIVE
LAW 219, 222 (1960).
59
Derek Jinks, The Anatomy of an Institutionalized Emergency: Preventive Detention and Personal Liberty in India,
22 MICH. J. OF INTL L. 311, 341-342 (2000-2001).
60
National Security Act, Act No. 65 of 1980.
61
Unlawful Activities (Prevention) Act, Act No. 37 of 1967.
62
Armed Forces (Special Powers) Act, Act No. 28 of 1958.
30
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Indian criminal law.63 In the alternative, as per Article 22 of the Indian Constitution, such
persons are given a partial, tailored set of procedural rights. Moreover, preventive detention is
subject to administrative review by an advisory board.64 As a rule, no person can held in
detention for more than three months except with the authorization of the advisory board. 65 The
detainee has to be told the grounds of detention as soon as possible, and the detainee also has
to be provided with the earliest opportunity to make a representation, i.e. to yield reasons as
to show why he ought not to be detained.66 However, the Constitution of India does not place
solid deadlines within which a detainee has to be told the grounds on which he is being detained
or be allowed to challenge his detention.
Thus, it can be seen that the Constitution explicitly renders legitimate detention that is not
mediated by the rules of criminal procedure and evidence. The detainees are granted only the
barebones procedural rights listed in the Constitution; they are not allowed to disclosure of the
evidence against them, access to legal representation, or even a public hearing.67
TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1987 (TADA)
It was an Act primarily passed in order to make special provisions for the prevention of,
and for coping with, terrorist and disruptive activities. Parliament passed the Terrorist Affected
Areas (Special Courts) Act2368 in 1984, in the backdrop of acceleration of terrorist activities in
many parts of the country at that point in time. This act authorized the national government to
identify parts of the country as terrorist affected, and thereby permitted it to set up special
courts in those areas to indict defendants accused of being terrorists. After a year, this law was
incorporated into the Terrorist and Disruptive Activities (Prevention) Act69 (hereinafter referred
to as TADA), 1985. TADA also brought about new criminal offences related to terrorist activity,
improved procedural powers for the police and considerably condensed procedural protections
for defendants. TADA however also incorporated a sunset clause as per which, the Parliament
had to review and renew the Act every two years.70 Evidence of human rights abuses under
63
INDIA CONST. art. 22 (1).

65
66
Id.
67
National Security Act, 1980, 8(2) and 11.
68
Terrorist Affected Areas (Special Courts) Act, Act. No. 61 of 1984.
69
Terrorist and Disruptive Activities (Prevention) Act, Act. No. 28 of 1987.
70
Terrorist and Disruptive Activities (Prevention) Act, 1987, 1(4).
64
31
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TADA ascended with the passage of time71, and in 1995, TADA was sanctioned to lapse when it
lost the support of opposition parties in Parliament. In the wake of terrorist attacks on the World
Trade Centre in New York, USA, the ruling National Democratic Alliance (hereinafter referred
to as NDA) proposed a new anti-terror law.
THE PREVENTION OF TERRORISM ACT, 2002 (POTA)
Since the country now faces challenges in the management of its internal security as there
is an upsurge of terrorist activities, intensification of cross border terrorist activities and
insurgent groups in different parts of the country. The existing criminal justice system as not
designed to deal with such types of heinous crimes and thus the present law (POTA) is being
brought into force to deal with these types of offences relating to terrorist activities. In view of
the international obligations and cross-border terrorism, the Indian government proposed a new
anti-terrorism law in 2001, the Prevention of Terrorism Act72 (hereinafter referred to as POTA).
POTA incorporated TADAs enhanced police powers, limits on the rights of the defence, and
special courts, with many of POTAs provisions reproducing verbatim the equivalent provisions
in TADA. In addition, POTA enhanced the governments power to detain individuals and forfeit
the proceeds of terrorism. POTA could also be deployed in any part of the country at all times,
without a prior declaration that a particular area was terror affected or disturbed. And while
TADA had a two-year sunset clause, the sunset clause in POTA was five years. POTA had a
fractious journey through Parliament, and soon sparked controversy. POTA never managed to
shed its association with a partisan political agenda. During the next general elections, the main
opposition parties pledged to repeal the Act. It was, in fact, repealed in September 2004 after the
NDA was ousted from power, on the initiative of a newly elected government formed by a
coalition of political parties called the United Progressive Alliance (UPA).
THE AMENDED UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 ( AMENDED
IN 2008) (UAPA)
After various terrorist attacks in India, the UPA-led national government proposed and
Parliament agreed to amend the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred
to as UAPA). This amendment inserted into the UAPA many provisions from POTA and TADA,
71
South Asia Human Rights Documentation Centre, Alternate report and Commentary to the U.N. human rights
committee on Indias 3rd periodic Report under article 40 of the international covenant on civil and Political rights
(1997), available at http://www.hrdc.net/sahrdc/resources/alternate_report.htm
72
Prevention of Terrorism Act, Act No. 15 of 2002.
32
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with some addition, alteration and dilution.73 Parliament also passed the National Investigation
Agency Act, creating a federal agency that can investigate and prosecute terror related crime
across the country without permission from the governments of individual states. The amended
UAPA, in turn, incorporates many provisions of POTA, even though POTA itself has been
repealed; the amended Act contains powers to regulate unlawful organizations as well as
powers to regulate terrorist organizations. Unlike TADA and POTA, the UAPA has no sunset
clause, and therefore provides a particularly secure harbour for expansive executive powers to
ban and limit organizations.74
THE ARMED FORCES (SPECIAL POWERS) ACT (AFSPA)
The Armed Forces (Special Powers) Act allows national and state governments to
designate parts of India as disturbed. Once an area is declared disturbed, the Armed Forces
(Special Powers) Act authorises the military to use force in that area far in excess of what
ordinary criminal law authorizes, without being invited to do so by the civil administration.
AFSPA lowers the threshold for using lethal force on citizens, forgoing any requirement that
force should be proportionate to the threat at hand. It also dispenses with limits on holding
people in pre-trial custody. The executives decision to designate an area as unusually dangerous
or volatile is unconstrained by threshold conditions or even guiding criteria. The requirement
under AFSPA is only that the deciding authority be of the opinion that the area in question be
in such a disturbed or dangerous condition that the use of armed forces in aid of civil power is
necessary75
3. AMBIGUOUS SCOPE OF THE ANTI-TERRORISM LAWS OF INDIA
Taking the example of the National Security Act, 1980 which allows the central and state
governments to detain an individual where this is considered necessary to prevent that person
acting in any manner prejudicial to the security of the State or from acting in any manner
prejudicial to the maintenance of Public order.76 The Act defines neither State security nor
public order, nor which actions may be prejudicial to either. It is difficult to discern the
boundaries of such a sweeping provision, which potentially catches a large swathe of political
73
C Kelso, et al., Unlawful Activities Prevention Act-UAPA (India) & U.S.-Patriot Act (USA): A Comparative
Analysis, 5 HOMELAND SECURITY REVIEW 121(2011).
74
75
The Armed Forces (Special Powers) Act, 1958, 3.
76
National Security Act, 1980, 3(2).
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and religious speech and writing that criticizes the government. Offences under anti-terrorism
laws are very broadly drafted. The UAPA, when it was amended in 2004 and 2008, incorporated
wide definitions of ambiguous scope. The Act creates the offence of committing a terrorist act,
and includes within the ambit of terrorist acts using force against a public official, using force
against any individual in order to pressure the government, using violent means to kill, damage
property or disrupt any supplies or services essential to the life of the community in India or
in any foreign country77
Experts are of the opinion of limiting the definition of the term terrorism to intentionally
causing death or injury with the motive of intimidating the general public or pressuring a
government or international body to act in particular ways.78 Contrary to this view, UAPA
chooses to include not just death and injury, but also property damage and disruption of supplies,
not just within India but in other countries too. A person committing a terrorist act must have
the intention to threaten the unity, integrity, security or sovereignty of India or strike terror in
people in India or in any foreign country. However, it is also enough if an individuals actions
are likely to have these same effects.79 The language of the Act leaves entirely unclear whether
an individual needs to know about or be reckless as to what could be the likely consequences,
and could be read as creating a strict liability offence.
So, we can clearly see that the individuals subject to these laws cannot confidently
calibrate how to comply with loosely defined standards. By the same token, it is difficult to
challenge an executive decision as being outside the scope of the executives statutory authority
under a particular legal provision if that provision is so widely drafted that its boundaries are
difficult to determine. If the Indian government declared a part of India to be in a state of
emergency under Article 356 of the Constitution, it would have to specify how long the
emergency will last, and Parliament would review any declaration of emergency. 80 By contrast,
when an area is designated as disturbed under AFSPA, this need not be reviewed by central or
state legislatures. As a result, some human rights groups have argued that laws like AFSPA
77
Unlawful Activities (Prevention) Act, 1967, 15.

UN Commission on Human Rights, Report of the Special Rapporteur on the promotion and protection of human
rights and fundamental freedoms while countering terrorism, Martin Scheinin, E/CN.4/2006/98, December 28,
2005.
79
80
INDIA CONST. ART. 356.
78
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allow the Indian government to constrain rights in the way it would by declaring a constitutional
emergency, while evading the constitutional checks that regulate a decision of such gravity.
4. ENHANCED POWERS TO INVESTIGATE AND PROSECUTE
Security laws such as AFSPA and the UAPA enhance the States powers of search, seizure
and arrest. The UAPA, like TADA and POTA before it, significantly diminishes the procedural
rights of the accused as compared to the Criminal Procedure Code, 1967. If we look at powers
of search, seizure and arrest, the UAPA allows any officer of a Designated Authority to search
any person or property, and seize any property or arrest any person, where they have reason to
believe from personal knowledge or information given by any person and taken in writing ... or
from any document or from any other thing that an offense has been committed under the
UAPA.81 The Code of Criminal Procedure, by contrast, requires the police to have credible
information or reasonable suspicion before arresting someone without a warrant.82 It
authorizes a search without a warrant only where a police officer has reasonable grounds to
believe that something essential to an investigation could not be obtained in any other way
without unreasonable delay.83
It is relevant to note that, a person arrested under the provisions of CrPC cannot be held in
custody for more than 24 hours without being charged of an offence.84 The UAPA, following
POTA, allows suspects to be detained without charge for up to 180 days. Thirty days out of the
permissible 180 can be in police custody, where the accused would be particularly vulnerable to
torture and forced confessions. Courts can authorize the first 90 days of detention without any
special grounds. To extend detention after 90 days, the prosecution needs to demonstrate only
that investigation has made some progress. This long period of pre-charge detention muddies the
boundary between pre-trial detention and preventive detention. Once trials are underway, these
anti-terrorism laws also allow the court to presume guilt based upon certain kinds of inculpatory
evidence, freeing the prosecution from showing that the accused acted with the requisite criminal
intent. TADA and POTA allowed confessions made to the police as evidence during trial,
departing from Section 25 of the Indian Evidence Act85, without explicitly barring statements
81
Unlawful Activities (Prevention) Act, 1967, 43A.

Code of Criminal Procedure, 1973, 41.
83
Code of Criminal Procedure, 1973, 41 & 161.
84
Code of Criminal Procedure, 1973, 151(2).
85
Indian Evidence Act, 1872, 25.
82
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made under torture.86 While the UAPA does not allow this, the various procedural departures it
permits considerably erode the right to a fair trial.
5. POWER TO CREATE SPECIAL COURTS
These disadvantages faced by the defence are compounded by the fact that trials under
anti-terrorism laws are held in special courts. TADA and POTA gave central and state
governments the power to establish special courts to try offences under these Acts. 87 The
recently passed National Investigation Agency Act, 2008 (NIAA) similarly authorizes the
creation of special courts to try a range of security offences including, inter alia, offences under
the UAPA.88 Indias constitution gives the High Court of each state the authority to regulate trial
courts.89 However, security laws vest the executive with authority to appoint judges and
determine the jurisdiction of special courts, upending the usual order of things and relegating the
High Court to a largely formal role.90
In special courts, procedural rules are modified to dilute the rights of the defence. The
NIAA, like POTA before it, empowers special courts to hold proceedings at any place when it
is expedient or desirable to do so.
91
Judicial powers that result, formally or informally, in
closed trials are troubling given the executives strong role in appointing judges. In addition,
transparent proceedings are particularly important in relation to the politically freighted crimes
that are tried in special courts, as public fear about terrorism might make the prosecution and the
court more prone to miscarriages of justice.
6. CONSEQUENCE OF ENLARGED POWERS UNDER NATIONAL SECURITY
LEGISLATIONS
It will be pertinent now to look in closer detail at the consequences that flow from the
distinctive features that have been reproduced in successive generations of laws. Indias security
laws enlarge the executives power to use force, detain, investigate, arrest and try individuals.
These procedural powers rest upon slackly drafted criteria, and go along with extensive
substantive offences of uncertain scope. Human rights groups strongly argue that Indias anti-
86
Prevention of Terrorism Act, 2002, 32; Terrorist and Disruptive Activities (Prevention) Act, 1987, 15.
Prevention of Terrorism Act, 2002, 23; Terrorist and Disruptive Activities (Prevention) Act, 1987, 9.
88
National Investigation Agency Act, 2008, . 11-21.
89
INDIA CONST. ART. 235.
90
National Investigation Agency Act, 2008, 11.
91
National Investigation Agency Act, 2008, 12.
87
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terrorism laws are incompatible with international human rights laws and the Indian
Constitution.92 They point out that security laws currently in force place excessive, unnecessary
restrictions on the rights to a fair trial, freedom of association, freedom of speech and freedom of
movement, as guaranteed by the International Convention on Civil and Political Rights, to which
India is a party.93 They also argue that AFSPA, which bestows generous shoot-to-kill powers
on the military in disturbed areas, unreasonably limits the right to life guaranteed by the
Constitution of India.
Generous executive discretion created by legal provisions that fall far short of human
rights standards creates sufficient scope for instances of abuse of power. There have been various
cases where the defendants charged with crimes under TADA and POTA have received unfair
trials.94 The Indian experience so far suggests that once security laws create expansive executive
power, empowered governments are not all that careful about using that power. In the year
1985, TADA gave every state in India the power to prosecute terrorist offences in special courts.
Over time, human rights groups documented that the highest number of TADA cases was
registered not in states with a history of violent, non-State militant activity, but in Gujarat, a state
that saw little terrorist or separatist activity during the time TADA was in force.95
Security laws have lent themselves to religious and ethnic discrimination. Individuals who are
Muslim, Sikh (under TADA), or from Indias north-eastern states have been unreasonably
investigated, detained and prosecuted under security laws.96 Human right groups often complain
that instead of conducting targeted investigation, scatter-shot violence, and wholesale arrests and
detention of people from particular tribal communities take place.97
Security laws that create terrorist offences and special courts add to the States preventive
powers by allowing easier arrests and long periods on remand. The enhanced ability to arrest,
92
PEOPLE'S UNION OF DEMOCRATIC RIGHTS, THE TERROR OF LAW: UAPA AND THE MYTH OF NATIONAL SECURITY
(People's Union of Democratic Rights. 2012).
93
supra note 23.
94
PEOPLE'S UNION OF DEMOCRATIC RIGHTS, JUDICIAL TERROR: DEATH PENALTY, TADA AND THE RAJIV GANDHI
ASSASSINATION CASE (People's Union of Democratic Rights 1998).
95
SOUTH ASIA HUMAN RIGHTS DOCUMENTATION CENTRE, REPEATING THE MISTAKES OF THE PAST (South Asia
Human Rights Documentation Centre. 2009), available at http://www.hrdc.net/sahrdc/hrfeatures/HRF191.htm#_ftn5
(last accessed 10th April, 2015)
96
UJJWAL KUMAR SINGH, THE STATE, DEMOCRACY AND ANTI-TERROR LAWS IN INDIA (Routledge. 2007) at 165219.
97
SABRANG COMMUNICATIONS, PEOPLE'S TRIBUNAL ON THE PREVENTION OF TERRORISM ACT (POTA):
BACKGROUND DOCUMENT (Sabrang Communications 2004) at 3 and 20, available at
http://www.sabrang.com/pota.pdf. (last accessed 10th April, 2015)
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detain, prosecute and use force has allowed serious abuses by official actors to proliferate. In
addition, overlap and intersections between preventive detention and anti-terrorism laws, as well
as security law and ordinary criminal law, can be used in concert to further enhance the states
preventive and procedural powers. Human rights reports as well as court decisions show that
preventive detention laws are used to detain people before they are prosecuted for a crime, and
detainees are arrested as criminal suspects as soon as they are released from detention.98
Law relating to prevention of terrorism with their departures from domestic and international
legal standard is a very bold exercise of executive law-making power, arguably against the spirit
of Article 123 of the Indian Constitution. Taking AFSPA as an example, granting extra powers
to the armed forces affects an important principle of Indias constitutional design as well as
democratic governance.
ROLE OF THE SUPREME COURT
Indias higher judiciary has been exceptionally vigilant when taking into consideration
matters relating to national security or when the constitutionality of security laws has been a
matter in dispute. To appreciate the position of the Supreme Court in this regard, we shall
consider in particular four Supreme Court decisions since the year 1980. The four decisions
include the Courts 1982 decision in A.K. Roy v. Union of India99 which dealt with the
constitutionality of the National Security Act, Kartar Singh v State of Punjab100 in 1994 which
addressed the constitutionality of TADA, Naga Peoples Movement of Human Rights v Union of
India101 in 1998 which considered AFSPAs constitutionality and Peoples Union of Civil
Liberties v Union of India102 in 2004 which decided on the constitutionality of POTA.
In all the aforementioned four cases, the petitioners argued that several individual
provisions of the law made infringed provisions in the Constitution. And, as it can clearly be
observed, on each of those occasions, the Supreme Court ruled very substantially in favour of the
State. In the AK Roy case, which challenged the constitutionality of NSA, the petitioners
contended that the grounds for preventive detention were too wide, having been transposed from
the Constitution into ordinary law without any attempt at precise statutory definition. The Court
98
Vijay Kumar v. Jammu & Kashmir, AIR 1982 SC 1023.

A.K. Roy v. India, (1982) 1 S.C.C. 271.
100
Indian Penal Code (1860) Sec. 107-120.
101
Naga Peoples Movement of Human Rights v. India, AIR 1998 SC 432.
102
Peoples Union of Civil Liberties v. India, (2004) 9 S.C.C. 580.
99
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in the instant matter, responded by ruing the imperfections of language, but insisted that a
certain amount of minimal latitude was necessary in order to make preventive detention laws
effective. The Supreme Court pointed out clearly that the Constitution did not extend the right to
legal representation to individuals who are preventively detained. The Court went further and
upheld statutory provisions on which the Constitution is silent, such as the NSAs ban on crossexamination during advisory board hearings, and the governments unrestricted power to
determine conditions of detention and punish infractions by detainees.
In the case of Kartar Singh dealt about the broadly drafted powers in the TADA to declare
an area terrorist affected and establish special courts within it received similar treatment from
the Court. While the Supreme Court dismissed arguments that government powers should be
clearer and narrower, challenges to ambiguity in the mens rea requirement of criminal offences
received a more favourable response. In Kartar Singh case, the Court read a mens rea
requirement into the offence of abetment, holding that imprecision could render a legal provision
arbitrary and void for vagueness. It held that the TADA unconditionally required that terrorist
or disruptive activities were of a scale and seriousness that warranted special measures. The
creation of Special courts was challenged in the case of Kartar Singh case for violating the
constitutional right to equality. The petitioners contended that defendants on trial in special
courts navigated less favourable courtroom procedure and faced less independent judges than in
a regular trial court. However, the Supreme Court upheld the creation of special courts on the
ground that persons tried under the TADA were a distinct class of persons who could therefore
be treated differently from other criminal defendants without infringing the right to equality..
This was followed as a precedent in PUCL case and the court again clarified that the offence of
abetment required intention and the offence of unauthorized possession of arms required
knowledge of possession.
The Supreme Court dismissed petitioners arguments in the case of PUCL that expansive
powers under POTA to declare associations as terrorist violated the constitutional right to
freedom of association. The Court said that creating the status offences at issue was permissible,
particularly given the magnitude of terrorism and the goals of the challenged legislation. The
Court pointed out that the challenged powers were valid because the Constitution allows
restrictions on freedom of association. However, simply because a right is not absolute and can
39
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be restricted should not be enough, in and of itself, to validate an individual restriction,

particularly an onerous one. The Court did not consider how far freedom of association could be
limited, and whether these particular powers restricted it too far. In the case of Naga Peoples
Movement, the Court held that the power to declare an area disturbed was neither arbitrary nor
unguided, even though AFSPA lays down no guiding criteria for such a declaration. The court
also rejected any suggestion that the militarys extensive powers to search, seize property, arrest
people and use force against them were excessive.
Thus we can see how the Courts position places little weight on long-standing common
law principles such as the right to a fair hearing and allows the government to dispense with
basic procedural protections simply by creating a forum technically distinct from a criminal trial.
CONCLUSION
It has to be realised that the presence of regular checks and balances into the executives
exercise of security powers will compel public deliberation and, as a result, encourage reasoned
decision-making. This in turn, will push against the steady decline of constitutional constraints
that has allowed Indian security laws to operate as charters for abuse. As it was shown above in
this paper, the laws in place in India to deal with the activities of the detainees grant only the
barebones procedural rights listed in the Constitution. Detainees are not entitled to disclosure of
the evidence against them, access to legal representation, or a public hearing. Even the rule
laying formation of special courts under many of these legislations raise pertinent constitutional
issues. As in special courts, procedural rules are significantly modified to weaken the rights of
the defence. The security laws or the anti-terrorism laws in India currently in force place
excessive, unnecessary restrictions on various rights which are guaranteed under the constitution
like the rights to a fair trial, freedom of association, freedom of speech and freedom of
movement, as is also guaranteed by the International Convention on Civil and Political Rights, to
which India is a party. The Indian Apex court has been extremely cautious when considering
matters relating to national security or when the constitutionality of security laws has been
challenged. We can see how in many of its judgments the Courts position places little weight on
the common law principles such as the right to a fair hearing and allows the government to
dispense with basic procedural protections simply by creating a forum technically distinct from a
criminal trial.
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KESVANANDA BHARATI V. STATE OF KERALA

RUSHALI SRIVASTAVA & SPANDAN SAXENA
A proposition enunciated, by a majority consisting of Sikri, C.J., and Shelat, Hegde,
Grover, Jaganmohan Reddy, Khanna, and Mukherjea, JJ., is that the power to amend does not
include the power to alter the basic structure or framework of the Constitution to the extent of
changing its identity. It is this proposition that will be applied in testing the validity of a
constitutional amendment in the future. Palekar, Beg, Dwivedi and Chandrachud, JJ., expressed
the view that the power of amendment under Article 368 is plenary with no implied or inherent
limitations and that it includes the power to add, alter or repeal the various Articles of the
Constitution not excluding those relating to fundamental rights. Khanna, J., while agreeing with
this view has stated that the power, however, does not extend to altering the basic structure or
framework of the Constitution. Ray and Mathew, JJ., also subscribe to the view of plenary
powers, but they think that there cannot be a total abrogation of the Constitution which will
result in a constitutional void. Any amendment, according to them, should leave behind a
mechanism of Government for the making, interpretation and implementation of laws. The
decision in the case was based on this distinction. And the significance of the distinction is that
while an ordinary law depends for its validity on its conformity with their Constitution,
constitutional law is independent of any such conformity. The same distinction enunciated and
followed inSajjan Singh case in 1964. The same proposition was reverted to by the dissenting
Judges in the GolakNath decision in 1967. After a passage of half a dozen years, the minority
view of five Judges came to be accepted by a majority of ten Judges as against three in
the KesavanandaBharati case. This is not an uncommon phenomenon in the whirligig of judicial
opinions. If the majority of the Supreme Court had held (as six judges indeed did) that
Parliament could alter any part of the Constitution, India would most certainly have degenerated
into a totalitarian State or had one-party rule. At any rate, the Constitution would have lost its
supremacy. Even Seervai later admitted that the basic structure theory preserved Indian
democracy. One has to only examine the amendments that were made during the Emergency.
The 39th Amendment prohibited any challenge to the election of the President, Vice-President,
2nd Year, Institute of law, Nirma University.
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Speaker and Prime Minister, irrespective of the electoral malpractice. This was a clear attempt to
nullify the adverse Allahabad High Court ruling against Indira Gandhi. The 41st Amendment
prohibited any case, civil or criminal, being filed against the President, Vice-President, Prime
Minister or the Governors, not only during their term of office but forever. Thus, if a person was
a governor for just one day, he acquired immunity from any legal proceedings for life. If
Parliament were indeed supreme, these shocking amendments would have become part of the
Constitution.
1. THE CHALLENGED AMENDMENTS
The Constitution (Twenty-Fourth Amendment) Act in actuality announced that FRs under
the sacred plan could be altered without limitation since no force of legal survey of established
corrections rested in Article 13 of the Indian Constitution. Despite anything in the Constitution,
Article 368, was altered to allow Parliament, in activity of its constituent power to revise by
method for expansion, variety, or nullification, any procurement of the Constitution as per the
technique in the article103. The utilization of emphasized words in the corrected Article 368
recommends that it was intended to concede express power to the Parliament to change any piece
of the Constitution, including FRs. The contention of administrative power as taken in
GolakNath was looked to be debilitated by including the saying 'constituent power104' in the
article itself. GolakNath contemplated that the ability to correct the Constitution was not sourced
from Article 368 as it simply laid the technique of established corrections. Since the force of
correction was not explicitly given by any article or authoritative section in the Constitution, it
must be sourced from the residuary administrative force of the Parliament under Article 248.
Since the residuary power under Part XI was liable to the procurements of the Constitution, the
force of correction was perused in as directed by Article 13.
The Constitution (Twenty-Fourth Amendment) Act countered this end reached in
GolakNath. After the Amendment, the original Article 368 was re-numbered sub-clause (2) and
the words it shall be presented to the President for his assent and upon his assent being given to
the Bill were replaced with by it shall be presented to the President who shall give his assent to
the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the
103
Refer the text of the amendment in Article 368(1) of the Indian Constitution.
Refer to see M.P. JAIN, INDIAN CONSTITUTIONAL LAW 1627-28 (2003).Prof. Jain connects with into a
broad exchange of the progressions that were made through these alterations as a reaction to the contentions
managed in GolakNath's case.
104
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bill. A probable conclusion that could be drawn from here was that assent to a constitutional
amendment was no more left at the presidential judgment and the president had to give his
assent, or so it seemed.105 The Constitution (Twenty-Fifth Amendment) Act, altered Articles
31(2) and Article 31(2) (a). It substituted the saying "amount" for the expression "compensation"
and barred the use of Article 19(1) (f) to a law made under Article 31(2). This was carried out to
evacuate any dispute that the administration was sure to give satisfactory remuneration for any
property procured by it. Article 19(1)(f) was delinked from Article 31(2) and the position before
GolakNath was restored as both the articles were built as totally unrelated before the choice in
GolakNath. Through its consideration of Article 31-C, the Twenty-Fifth Amendment
additionally engaged Parliament and State Legislatures to institute law offering impact to the
approach of the state towards securing the Directive Principles (DPs) in condition (b) or
statement (c) of Article 39. Such a law couldn't be addressed on the ground that it took away or
compressed any of the rights ensured by Articles 14, 19 and 31. 106 Furthermore, a statement in
the law that it was authorized to offer impact to an arrangement under Articles 39(b) and (c)
would vaccinate the law from such a test in the court.21 The Twenty-Sixth Amendment
abrogated 'privy purses' in Article 362 and revoked Article 291 that gave distinguishment to the
recent rulers. The Constitution (Twenty-Ninth Amendment) Act, brought the Kerala Land
Reforms (Amendment) Acts in the Ninth Schedule of the Constitution, making them safe from
assault on the affection that its operation brought about encapsulation or violation of FRs.
105
This was opined with a perspective to find a contrast between common law and a law made under constituent
power. One motivation behind why this distinction was not recognized by the GolakNath court was a result of the
striking closeness in the method for entry of both laws. Through the Twenty-fourth Amendment, the Parliament
endeavoured to drive home the point with respect to administrative force constituent force isolate and reinforced the
development by making the correction transform under Article 368 unique in relation to a normal law making
methodology. While in instances of common administrative establishments, councils obliged presidential consent
who could deny it once, the same was not possible for protected corrections. After Twenty-fourth Amendment, the
president was left with no other decision however to give his consent to sacred corrections.
106
The impact of this provision was expansive. It denoted an inversion of sorts from the Constitution's ordinary
comprehension that DPs were subservient to FRs, at any rate regarding their authorization and security. Through the
Twenty-fifth Amendment, this relationship between Part III and IV was tried to be turned around and DPs contained
in Articles 39(b) and (c)were given priority over Arts. 14, 19 and 31. Nonetheless, it merits contemplating over if
this was a consequence of any principled liking towards the DPs well beyond FRs or only a State diktat to impact an
approach measure.
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2. ISSUES
The government initially attempted to procure boundless correcting force to offer impact
to certain established law valued in Part IV and consequent thereto, even attempted to take away
the court's vital force of evaluating the appropriateness of such practice of power. For the reasons
of the operation of the law, it was sufficient if the administration accepted that a law required
insusceptibility in light of the fact that its operation was pointed towards attaining to the financial
equalization conceived under Part IV of the Constitution. The recently embedded Article 31-C
likewise allowed the state governing bodies to establish comparable laws, subject to the consent
of the President. Despite the fact that the request in Kesavananda essentially spun around these
issues, the thoughts for the situation would extend over the long haul to incorporate in its ambit,
issues having far and wide ramifications even outside this case. The case talks about issues
identifying with the way of Indian Constitution, the correcting force visualized in that, the degree
to which authoritative reason could override or revoke FRs through constitutional amendments,
the relationship between Part III and Part IV of the Constitution and comparative different issues
that were to guide the established course for a considerable length of time to come.
3. ARGUMENTS
1. The petitioners contention was that the Constitution envisages a democracy which ensures
freedom and dignity of the individual. With a view to realize this mandate and to prevent
misuse or abuse of power, the Indian Constitution, created a system of limitations, checks
and balances.107 It was therefore urged by the petitioners that such a state action might even
result in virtually abrogating any of the other FRs, the exercise of which would be impeded
by the deprivation of property without proper compensation.108 Illustrations were provided
that suggested that publishers may be deprived of their printing presses, professionals of their
assets, trade unions of their funds and religious institutions of their endowments in the name
of acquiring property.109
2. The petitioners also contended that insertion of Article 31-C which could potentially override
FRs set in Articles 14, 19 and 21 on the pretext of governments social and economic policy
could subvert several essential features. This argument was also strengthened by the fact that
107
See GOBINDDAS, SUPREMECOURT INQUEST OFIDENTITY70 (2000).

Ibid
109
Ibid
108
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Article 31-C expressly provided that no law for giving effect to DPs could be called in courts
of law on the grounds that it does not give effect to such policy.110
3. Article 13(2) of the Constitution, as it remained before the Twenty-fourth Amendment, gave
that the state might not make any law which takes away or shortens the rights ensured under
Part III of the Constitution. The expression "law" in Article 13 was understood by the
Supreme Court in GolakNath case as incorporating in its domain, constitutional amendments.
It was subsequently contended in GolakNath that the Parliament, couldn't through a revision,
compress or take away the FRs in activity of its energy under Article 368. The TwentyFourth Amendment tried to supersede that judgment by situating itself in a manner that
rejected sacred revisions from the utilization of Article 13(2). The candidates set forward
their complaints to this improvement and their contention mirrored the perspective that any
altering body composed, inside the statutory plan, howsoever obviously boundless its energy,
can't by its exceptionally structure surpass its established power. Having furnished itself with
the command under the Twenty-fourth Amendment, Parliament ordered the Twenty-fifth
Amendment through which the state engaged itself to deny anybody of property
consequently for a sum altered by the official and such sum was not open to legal
investigation, however silly or discretionary the executive activity may be. It was in this
manner urged by the applicants that such a state activity may even result in basically
repealing any of alternate FRs, the activity of which would be hindered by the hardship of
property without legitimate remuneration. Outlines were given that proposed that distributers
may be denied of their printing presses, experts of their benefits, exchange unions of their
trusts and religious foundations of their blessings for the sake of gaining property.
4. The petitioners likewise fought that insertion of Article 31-C which could possibly override
FRs set in Articles 14, 19 and 21 on the appearance of government's social and economic
strategy could subvert a few fundamental peculiarities. This contention was likewise
reinforced by the way that Article 31-C explicitly gave that no law to offering impact to DPs
could be brought in courts of law because it doesn't offer impact to such strategy.
5. Initially having no power to later or destroy any of the essential features of the constitution
110
Ibid
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and also recognising implied and inherent limitations in the amending power, Parliament has
no power to alter or destroy all or any one of the fundamental rights, or, in other words,
Parliament cannot abrogate the limits of its constituent power by repealing those limitations
and thereby purporting to do what is forbidden by those limitations.111
6. THE JUDGES OPINION
The case was decided on April 24, 1973.The Constitutional Bench of thirteen judges
reacted with eleven judgments, with just two joins ofShelat J. also Mukerjea J. (in the first place)
and Hegde J. also Grover J. (second) collaborating for composing joined judgments.
a. ARGUMENTS REGARDING CONSTITUTION 24TH AMENDMENT ACT:
ARTICLE 368
All the judges were of the view that 24th Amendment is valid and essential, and by virtue
of Article 368, the Parliament has the power to amend any or all provisions of the
Constitution, including even the fundamental rights.
Seven judges (SikriCJ,Shelat,Hegde,Grover,JaganmohanReddy,Khanna and Mukherjee

JJ) held that the power of the Parliament to amend the constitution was limited and it
cannot change the basic structure of the constitution. Six judges, excluding Khanna J,
those Fundamental Rights in Part III are the basic features of the constitution and are not
amendable.
The other six judges (Ray,Palekar,Mathew,Beg,Dwivedi, and Chandrachud JJ), did not
accept any limiting power on the parliament to amend the Constitution.
Justice Khanna however held that the Right to property did not form the part of the basic
structure of the constitution and his opinion favoured in the opinion of the six judges in
the conclusion.
BASIC STRUCTURE OF THE CONSTITUTION:

According to Justice Sikri112 basic structure comprises of :
Supremacy of the constitution
Republican and democratic form of Government
Secular character of the Constitution
111
112
See,V.N.SHUKLA, THE CONSTITUTION OF INDIA 1078 (2008)

Supra n.1,(SCC)366,paras. 292-93
46
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Separation of power between the legislature, the executive, and judiciary

Federal character of the Constitution
Acc. To Shelat and Grover JJ113,
The mandate to build a welfare state contained in Part 1V of the
constitution
The unity and integrity of the nation
According to Hegde and Mukherjee JJ114,
Sovereignty of India
The democratic character of our polity
The unity of the country
The essential features of the individual freedoms secured to the citizens
The mandate to build a welfare state and egalitarian society
According to Dr. JaganmohanReddy,J115, he stated that the basic features were to

be found in the Preamble of the Constitution, and the provisions into which they
translated such as :
Sovereign democratic republic
Parliamentary democracy
Three organs of the State
In all the specific basic features were not easy to find fromthe above
suggestions, but in all, the individual freedom was regarded by all the six judges
as a basic feature , which can be revoked by any amendment in Article 368.
Five judges(Sikri CJ, Grover,Hegde, and Mukherjee JJ) the power to amend the
constitution was an implied limitation in the language of Article 368. But the argument
was opposed by Shelat and Grover JJ. According to them, implied limitations arise only
when there is express limitation, which was not present. Jaganmohan J, emphasising on
the word amendment, said that the word only brings about a change in contradiction to
destruction which a repeal or abrogation would imply.116
113
Supra n.1,(SCC)454,para.582
Supra n.1,(SCC) 637-38,para.1159
115
Ibid
116
Ibid,(SCC) 628,633,paras.1141,1150
114
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DISSENTING OPINIONS:
Ray J had a view that unless the makers of the Constitution make it clear themselves, the
distinction between essential and non-essential features cannot be made. According to
him, any amendment in the constitution can make even fundamental and even radical
changes in the constitution. For him, the power of the amendment was unlimited so long
as the Constitution existed as an amended Constitution, which provides for making,
interpreting, and implementation of the law117. In short, any amendment in the
Constitution provides for making fundamental changes inthe constitution itself.
Palekar J. said that all the provisions in the constitution must be treated in the same way
and it cannot be implied that one provision is important than the other. For Article 368,
there was nothing in it which could limit the power of the parliament to amend the
provisions expressly or by necessary implication. It was not the function of the court to
invent limitations on the functioning of the government.118
Mathew J. had a view that there was no express or implied limitation on the power of the
Parliament to amend the fundamental rights. The language of 24th Amendment Act itself
made it clear that these rights can be taken away for the common good of the society. The
courts cannot go into the validity of the amendment on any substantive ground.119
In the same way, Beg J. observed that the power of the court is limited only to the extent
that they should see that the form and the procedure of amendment were properly
observed. According to him, implication of the word amendment could exclude a
possible complete abrogation of the present Constitution, although that could be done
step by step by the bodies empowered to amend.120
Dwivedi J. believed that any distinguishment test between essential and non essential is
disregarded. For him, the more rigid the constitution, the more essential was the provision
amendable to it. For him, the provisions in Article 368 were more essential from the
provisions enshrined in Part III of the constitution.121
117
Ibid, (SCC) 552,557,paras.901,917,917-A

Ibid, (SCC) 682,690,paras.1242,1263
119
Ibid, (SCC) 881,paras.1714-15
120
Ibid,(SCC) 908,913, paras.816,1836-37
121
Ibid,(SCC) 942,paras.1930-31
118
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Chandrachund J made a distinction between constitutional and an ordinary law. He said

that law amending the constitution was made in the exercise of a constituent power and
therefore it attained the quality of constitutional law.122
OPINION OF JUSTICE KHANNA:
The opinion of Justice Khanna was on the mid way but it paved way on the side of the 6
judges (Sikri CJ, Shelat, Grover, Jaganmohan Reddy, Hegde, and Mukherjee JJ). He
observed that an amendment in the constitution could not have an effect of destroying or
abrogating the basic structure or framework of the Constitution. He gave situations under
which the amendments would not work. Those included changing the democratic
government into dictatorship or hereditary monarchy, abolishing LokSabha or
RajyaSabha or doing away with the secular character of the State123.
The power to amend fundamental rights could not be denied by describing them as
natural or human rights so long as the basic structure of the Constitution remained
unaltered124.
Subject to the retention of the basic structure or framework of the Constitution, the power
of amendment was plenary and would include the power to add, alter or repeal various
provisions together with the fundamental rights125.
In his belief, the right to property could not be held to pertain to the basic structure or
framework of the Constitution.
b. ARGUMENTS REGARDING THE VALIDITY OF THE 29TH AMEDNMENT
ACT
The petitioners heavily relied upon the relationship between Article 31 A and Article 31 B.
It was battled that Article 31B was personally connected with Article 31A and, accordingly, just
those authoritative institutions which fell under Article 31A could be incorporated in the Ninth
Schedule under Article 31B126. This matter, the Court felt, was no more open to contention as the
same issues had as of now been settled by a progression of cases like State of Bihar v.
122
Ibid,(SCC) 987, 989, paras. 2013,2089

Ibid,(SCC) 7667,777,786,806,820,paras.1426,1436,1448,1469,1509,1533
124
Ibid
125
Ibid
126
Ibid, 2235
123
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Maharajadhiraj Sir Kameshwar Singh of Darbhanga and Ors 127,VisweshwarRao v. The State of
Madhya Pradesh128andN.B. Jeejeebhoy v. Right hand Collector, ThanaPrant, Thana.129 In all
these cases it was held that Article 31B was free of Article 31A. A matter which was settled for
all these years couldn't be re-opened. It was still to be open, notwithstanding, for the Court to
choose whether the Acts included in the Ninth Schedule by Twenty -ninth Amendment or any of
their procurement annulled any of the fundamental components of the protected structure or
exposed the Constitution of its character.
7. JUDGEMENT:
a. REGARDING THE CONSTITUTION TWENTY FOURTH AMENDMENT ACT,
THE SUMMARY WAS SIGNED BY 9 OUT OF 13 JUDGES IN THE CASE.
The view by the majority in these writ petitions is as follow:
(1) GolakNaths Case is overruled;
(2) Article 368 does not enable Parliament to alter the basic structure or framework of
the Constitution;
(3) The Constitution (Twenty-fourth Amendment) Act, 1971 is valid;
(4) Section 2(a) and 2(b) of the Constitution (Twenty-fifth Amendment) Act, 1971 is
valid;
(5) The first part of Section 3 of the Constitution (Twenty -fifth Amendment) Act,
1971 is valid. The second part, namely, and no law containing a declaration that it is for
giving effect to such policy shall be called to question in any court on the ground that it
does not give effect to such policy is invalid;
(6) The Constitution (Twenty-ninth Amendment) Act, 1971, is valid. The
Constitution Bench will determine the validity of the Constitution (Twenty-sixth
Amendment) Act, 1971 in accordance with law.
b. As regards the Twenty-fifth Amendment, it was encouraged, subject to the
following qualifications:130
(1) Although amount was not the same concept as compensation, the courts could
127
[1952] S.C.R. 889
128
[1952] S.C.R. 102
129
[1965] 1 S.C.R. 636.
130
Supra n.1, 2210-33
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not go into the question of adequacy of amount payable for property acquired or
requisitioned. However the amount could not be illusory or arbitrary and should
bear some reasonable relationship with the original value of the property in
question.
(2) The non-application of Article 19(1) (f) to a law enacted under Article 31(2) as
the amendment had restored the status quo as existed before the decision in
GolakNath when Supreme Court regarded Article 19(1) (f) and Article 31(2) as
mutually exclusive.
(3) The first part of Article 31-C that purported to make legislations immune on the
grounds of their abridgment of Articles 14, 19 and 31 was upheld chiefly on the
basis that it identified a limited class of legislation aimed at securing the mandate
under Articles 39(b) and (c). Hence, no delegation of amending power was
required. The second part of Article 31-C was held invalid. The purport of this
ruling was that while a law enacted at implementing Articles 39(b) and (c) would
not have been challenged under Articles 14, 19 and 31, nevertheless, the courts
had the power to ascertain whether the impugned law does in fact achieve the
objectives inherent in Articles 39(b) and (c) or not or was this privilege being
misused for some collateral purpose. This could not have happened if the second
part of Article 31-C would have continued to be in force. The court struck it down
and held that no legislature by its own declaration can make a law challengeproof.
CONCLUSION: IMPORTANCE OF KESAVANANDA
The case broke many shackles among the judiciary and the Parliament which were being
practised in our Country. Hence this case was one among the most celebrated case of the Indian
History which gave the Indians their fundamental rights as the ones which are basic in nature
1. It was expressed prior that there are a few different parts of the Constitution that are
essential, if not all the more, then in the same route as FRs. However GolakNath had
limited such a seeing just to FRs. What Kesavananda did was to perceive certain different
parts as constituting the 'fundamental structure' of the Constitution that can't be
undermined by method for a sacred alteration.
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2. The summary explanation that was marked with a perspective to accommodate

comparable perspectives and have an agreeable thought of the decision for this situation
unexpectedly wound up just like the wellspring of a significant part of the perplexity that
took after Kesavananda. Chandrachud's and Justice Palekar's decisions put them
conflicting with the other seven judges who had marked the rundown proclamation.
3. GolakNath made all the FRs non-amendable which as per numerous and particularly the
administration was excessively inflexible a plan. Kesavananda presented some
adaptability in this respect and held that Not all FRs en alliance are a piece of the
essential structure of the Constitution. Just those FRs are non-amendable that are held to
be a piece of the 'basic structure.
4. Kesavananda likewise addressed the inquiry left unanswered in GolakNath, specifically,
can Parliament, under Article 368, rework the whole Constitution and acquire another
Constitution? Kesavananda's straight out answer to this was that Parliament can do just
that which does not modify the 'fundamental structure' of the Constitution or go past that.
In this respect, it is presented that the inquiries, to be specific 'Whether the Constitution
can be revoked' and 'Whether the Constitution can be annulled by parliament in activity
of its altering power under Article 368' are two separate inquiries through and through
varying in their inclination, degree and suggestions. Kesavananda completely denied this
benefit to the Parliament in as much as revoking of a Constitution would without a doubt
abuse its 'basic structure.
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NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014:

A CRITIQUE
SAMEER RASHID BHAT & SIDDHANT KHETAWAT
The debate surrounding the mode and procedure of judicial appointments has sparked off
controversies since the 1970s. Ever since, there has been an unending supremacy tussle between
the executive and judiciary. This paper aims at capturing the textual matrix of the constitutional
provisions on judicial appointments. It also looks into the organic and dynamic nature of law
relating to judicial appointments, delving deep into its historical aspect and tracing the evolution
of the same. To this end, the authors begin by delineating various instances and events that
chronologically mark the evolution of this process. The original scheme of the Constitution in
Article 124(2) envisaged a participatory consultative process between the executive and judiciary
for appointment of judges. The First Judges Case then set off the phase when the executive had
the final say in the appointments. Faced with constant encroachment attempts by the executive
on the independence of judiciary, the Supreme Court, as a counter measure, evolved the
collegium system in the Second Judges Case. This collegium system of self-selection of judges
is unique to India. Over the time, the collegium has had its own fair share of criticism for lack of
accountability and transparency. Pursuant to this, the Parliament passed the National Judicial
Appointments Commission Act, 2014 along with the Constitution (121st Amendment) Act, 2014
for the creation of a National Judicial Appointment Commission and to scrap the collegium
system. Considering the monumental changes that the Act attempts to bring about in the
appointment of judges to the Higher Judiciary, the authors undertake a critical study of the
proposed ex-officio Commission and also embark on a comparative study of judicial
appointments in various established democracies of the world. By doing so, the authors try to
gauge the constitutionality of the NJAC Act on the touchstone of the doctrine of basic structure
and also examine whether it is a worthy replacement to the present system. We argue that the Act
violates the basic structure principles of independence of judiciary, federalism, judicial review
and Articles 14 and 21 of the Constitution. It is also in contravention to the Principles of Natural
Justice which is an integral part of Indian Jurisprudence. The NJAC Act does not lay down any
2nd Year, B.A. LL.B. (Hons.), Gujarat National Law University, Gandhinagar.
53
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standard of transparency nor any objective criteria for selection of judges. Selections could be
made arbitrarily in an opaque manner as the Act gives unfettered discretion to the Commission.
Towards the end of this paper, we recommend the establishment of an independent constitutional
body comprising of five members who may be retired judges or eminent jurists for the
appointment of judges to the Higher Judiciary. Since the body would be independent of the
government and the sitting judiciary, itwill eliminate the self-selecting procedure of judges and
also the threat to independence of judiciary.
1. INTRODUCTION
The Indian constitution accords a dignified and crucial position to the judiciary.131 It is
burdened with the task of dispensing justice between individuals and state, interpretation of the
Constitution and ensuring the fine balance of separation of powers. 132It is said that the judiciary
must be as impartial as is humanly possible133 and for this purpose, the Constitution of India
envisages an independent judiciary134, free from any external influences emanating from any
source, including the political executive135. The importance of independence of judiciary has
been underlined by the Supreme Court in numerous instances136 to the extent of declaring it to be
a part of the basic structure of Indian Constitution137. Independence of judiciary is determined by
inter alia mechanism of appointment of judges, security of tenure, and reasonable security of
compensation. Ever since India gained its independence, the mechanism of judicial appointments
has been highly debated. The role of the executive in the appointments has been at the centre of
this debate. It is argued that there is a need to evolve an effective mechanism of insulating judges
against politics and involvement in political machinations of the kind that have disgraced some
sections in the past not only in this country. Its pertinent to note that the executive is the biggest
litigant in cases of citizen complaints of the oft-corrupt misuse of executive powers.138 Also, the
131
H. M. SEERVAI, 2 CONSTITUTIONAL LAW OF INDIA (4th ed. Universal Law Publ'g Co. Pvt. Ltd., New Delhi 1983).
M. P. JAIN, INDIAN CONSTITUTIONAL LAW (7th ed. Lexis Nexis, Gurgaon 2014).
133
STEPHEN LEACOCK, ELEMENTS OF POLITICAL SCIENCE 200-201 (I ed. Mifflin 1906).
134
M V PYLEE, AN INTRODUCTION TO THE CONSTITUTION OF INDIA 195-196 (5th ed. Vikas Publ'g House Pvt Ltd
2009).
135
Law Commission Report 121, July 1987, at http://lawcommissionofindia.nic.in/101-169/report121.pdf (last
visited Apr. 6, 2015).
136
See Subhash Sharma v. Union of India [1991], AIR1991 SC 631,Shamsher Singh v. State of Punjab [1974], AIR
1974 SC 2192, Union of India v. Sankal Chand Himatlal Sheth and Anr. [1977], AIR 1977 SC 2328.
137
Keshavananda Bharti v. Union of India, AIR 1973 SC 1461
138
Ram Jethmalani, First, insulate the judge from politics, THE INDIAN EXPRESS, Aug. 7, 2014 at
http://indianexpress.com/article/opinion/columns/first-insulate-the-judge-from-politics/ (last visited Apr. 10, 2015).
132
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President may be advised and, even, pressurised by his ministers to choose some persons of their
own faith or choice.139 In such a case, the party in power is sure to capture the judiciary for its
sinister interests.140 Such criticism is justified as the report of our Law Commission reveals that
communal and regional consideration and even executive influence have often influenced the
executive decision in the appointment of judges.141 This runs counter to the ethics of justice in an
ugly manner and makes the judiciary an adjunct to the executive organ.
2. HISTORY OF JUDICIAL APPOINTMENTS
The system of appointment of judges of the higher judiciary was a subject of intense debate and
deliberation in the constituent assembly. The Constitution prescribes the system of appointment of judges
to higher judiciary under Articles 124 and 217. Article 124(2)142 deals with the appointment of judges to
the Supreme Court while as appointment of High Court judges is dealt with under Article 217(1)143. On
the question of whether the President should obtain the consent of the Chief Justice of India in the matter
of appointments, Dr. B. R. Ambedkar said the provision was only for consultation and not giving any veto
power to the CJI.144 This simply worded prescription, expressed in Articles 124(2) and 217(1), worked
well in practice for the first two decades. By convention, whosoever the CJI recommended as judge was,
almost invariably, appointed; whom the CJI did not recommend was not appointed.145
COLLEGIUM SYSTEM
Then came the period of confrontations between the executive and the judiciary. It was the
concept of committed judges of Mohan Kumaramangalam which led to the real decline of
judicial character in the 1970s. The attempt to undermine the independence of the judiciary
originated in 1973, after the Kesavananda Bharati judgment which gave a serious blow to the
139
Nirmalendu Bikash Rakshit, Judicial Appointments, 39 ECON. & POL. WKLY., July 3, 2004 at
http://www.epw.in/commentary/judicial-appointments.html (last visited Apr. 6, 2015).
140
S. L. SIKRI, INDIAN GOVERNMENT AND POLITICS 201-202 (1st ed. ).
141
H MORRIS & JONES, GOVERNMENT AND POLITICS IN INDIA 241-242.
142
Art. 124(2) - Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and
seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the
President may deem necessary for the purpose []
143
Art. 217(1) - Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal
after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a
Judge other than the chief Justice, the chief Justice of the High court []
144
J. Stalin, National Judicial Appointments Commission: DC Discusses Whether It Was a Right Move or a Wrong
One?, DECCAN CHRON., Aug. 24, 2014 at http://www.deccanchronicle.com/140824/nation-currentaffairs/article/national-judicial-appointments-commission-dc-discusses-whether (last visited Apr. 7, 2015).
145
Fali S. Nariman, Needed: Dialogue, Statesmanship, THE INDIAN EXPRESS, Aug. 6, 2014 at
http://indianexpress.com/article/opinion/columns/needed-dialogue-statesmanship/99/ (last visited Apr. 10, 2015).
55
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amending power of the Parliament by evolving the doctrine of basic structure.146
The
interpretation of the constitutional provision on appointment and transfer of judges has, since,
been a matter of extensive litigation. The question arose as to whether consultation referred to
in Articles 124(2) and 217(1) with the CJI meant concurrence. A series of three most important
Supreme Court judgements on this point are clubbed together as the Three Judges Cases. In
S.P. Gupta,147 the First Judges Case, the Supreme Court held with a majority that the opinion
of the executive should have primacy regarding appointment of judges to higher judiciary. This
literal interpretation of the word consultation had devastating political consequences. 148 It gave
the government the license to disregard the recommendations of the judiciary and brought about
a paradigm shift in favour of the executive for the next 12 years. In 1993,SCAORA,149the
Second Judges Case, overruled the First Judges Case. The court held that a collegiate opinion
of a collective of judges is binding on the government. For the next five years, there was no
clarity on the role of the CJI and the two senior-most judges. There are instances where the CJI
took unilateral decisions without consulting his colleagues. The role of the executive was
restricted to prevent the growth of germs of indiscipline in the judiciary. The President was
rendered to be only an approver.
To clear the confusion, in 1998 a presidential reference was made under Article 143 to the Supreme
Court for an advisory opinion as to the interpretation of the term consultation in Articles 124, 217 and
222. The bench strongly reinforced the concept of primacy of judiciary over the executive and
strengthened judicial concurrence by enlarging the collegium from three to five of the senior-most
Justices. This Third Judges Case led to the present form of collegium system.
o MERITS OF THE COLLEGIUM SYSTEM:

It has been suggested by the admirers of the collegium system that it is better than the
previous system of appointment of judges in many ways. Firstly, the judges have a better
knowledge and are more aware of the capability and achievements of the judges and lawyers of
the lower judiciary. Therefore, they are better placed than their executive counterparts to access
the lower judiciary and recommend names for the elevation of judges to the higher judiciary.
146
Prashant Bhushan, Scuttling Inconvenient Judicial Appointments, 49 ECON. & POL. WKLY., July 12, 2014 at
http://www.epw.in/commentary/scuttling-inconvenient-judicial-appointments.html (last visited Apr. 10, 2015).
147
S.P. Gupta v. Union of India, AIR 1982 SC 149.
148
Indira Jaising, National Judicial Appointments Commission: A Critique, 49 ECON. & POL. WKLY., Aug. 30, 2014
at http://www.epw.in/commentary/national-judicial-appointments-commission.html (last visited Apr. 5, 2015).
149
Supreme Court Advocates-on-Record Association v. Union of India, 1993 (5) SC 479.
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Secondly, unlike the executive, the judges do not have any ulterior motive in appointing or
elevating the lawyers or judges of the lower judiciary, the sole criterion being their performance
in the lower courts. Thirdly, this system of appointment of judges is very efficient in nature and
there is minimal delay in the selection process. Most importantly, the collegium system serves to
protect the independence of the judiciary and keeps the appointment of judges free from political
interference. It is said that some occasional failures can be a ground for improving the process of
selection, but not for abolition of the collegium itself.150
o DEMERITS OF THE COLLEGIUM SYSTEM
Though the system was initially welcomed, as the years passed, it was criticised by a growing
number of quarters on the ground that it had failed to cure the frailties of the erstwhile
mechanism and that this self-selection of judges was unique to India. The judiciary in devising
the collegium system has been severely condemned for plainly rewriting the constitutional
provisions in the name of judicial interpretation. Had the Supreme Courts decisions in the Three
Judges Cases been substituted by a Constitution amendment by Parliament to the same effect, it
is trite to say that such a law would have been liable to be invalidated for violating the
Constitutions basic structure.151However, critics of this system add by saying that even if there
was no foundation of this system in the Constitution, it could have been excused had the
mechanism worked convincingly, but regrettably this has not been the case for over 20 years.
The collegium system is shrouded in secrecy and as per Justice Ruma Pal, this process is one of
the best kept secrets in the country. History bears testimony that a lack of transparency is fatal to
the working of any democratic institution. Not being an exception to it, the collegium is said to
be fraught with nepotism, arbitrariness and lack of accountability. Moreover, the system also
tends to promote judges who have an identical mindset and also share similar views thereby
furthering the scope of nepotism. Furthermore, the system also puts too much emphasis on
technical competence of the judges and ignore important aspects such as social philosophies or
gender sensitivities of potential nominees. Another criticism of this system is that the judges do
not pay particular attention to the idea of manpower planning, as is clear from the many short-
150
supra n. 14
SuhrithParthasarathy,
Safeguarding
judicial
autonomy,
THE
HINDU,
Aug.
25,
2014
http://www.thehindu.com/opinion/lead/national-judicial-appointments-commission-bill-safeguarding-judicialautonomy/article6347268.ece (last visited Apr. 10, 2015).
151
57
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term appointments of Chief Justices and Justices to the Supreme Court. In a judge-dominated
system, everyone needs to be given a chance.152
Another principal drawback of the system is that a body of sitting judges cant accomplish
the huge task of selecting so many judges to higher judiciary every year in a fair mannerdue to
their overburdening judicial engagements. Also, there is no provision of a separate secretariat
dedicated to collection of and checking personal and professional backgrounds of prospective
appointees.153 No system of inviting any applications or nominations has been devised either.154
This has led to the reduction in the quality of judges in the higher judiciary. The late Justice J.S.
Verma has himself admitted that the collegium system has failed. Thus, it was evident that
neither of the mechanism was capable of selecting the judges in a satisfactorily manner.
3. NATIONAL JUDICIAL APPOINTMENT COMMISSION
PAST ATTEMPTS:
The matter of appointment and removal of judges was examined by J. Venkatachaliah headed
National Commission to Review the Working of the Constitution which recommended the constitution of
a National Judicial Commission having effective participation of both the executive and judicial wings of
the state as an integrated scheme for the machinery of appointment of judges. The government in
2003 introduced the Constitution (98th Amendment) Bill seeking to create a five-member
National Judicial Commission headed by the CJI with two of the senior-most judges of the
Supreme Court, the Union Law Minister and an eminent citizen to be nominated by the President
in consultation with the Prime Minister, as members. The Bill lapsed on dissolution of the Lok
Sabha. In 2013, a similar Bill with similar composition met a similar fate with the dissolution of
the 15th Lok Sabha.
THE NATIONAL JUDICIAL APPOINTMENTS COMMISSIONACT, 2014:
The new government within months of its formation introducedthe National Judicial
Appointment Commission Bill which was passed by the Parliament along with the Constitution
(121stAmendment) Bill on August 14, 2014 to give a constitutional status to the proposed NJAC.
152
RajuRamachandran, The Current Accountability Deficit, THE INDIAN EXPRESS, Aug. 12, 2014 at
http://indianexpress.com/article/opinion/columns/the-current-accountability-deficit/ (last visited Apr. 5, 2015).
153
http://www.asianage.com/editorial/what-collegium-system-appointing-judges-463(last visited Apr. 7, 2015).
154
http://www.aamaadmiparty.org/scuttling-inconvenient-judicial-appointments-the-bjp-way (last visited Apr. 8,
2015).
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o SALIENT FEATURES OF THE ACT:

The National Judicial Appointments Commission Act, 2014 proposes to radically change the
process of appointment of judges by giving both the judiciary and the executive equal say and
veto power.155 The NJAC is in charge of appointment of judges of the Supreme Court, the CJI
and judges of the high courts. This six-member body chaired by the CJI has two senior-most
judges of the Supreme Court, the Union Law and Justice Minister and two eminent persons to be
nominated by CJI, Prime Minister and Leader of Opposition in Lok Sabha the leader of the
largest party in opposition, as its members. One of the two eminent persons having a tenure of
three years will be a woman, SC, ST or member of the minority community. In an important
improvisation on earlier drafts of the NJAC, the Act provides that no name opposed by two or
more of the six-member body can go through.156 In an important addition, the Act also requires
that the NJAC, before recommending a name for appointment as judge of a high court, take the
views of the Governor and Chief Minister of the concerned state in writing.
o CONSTITUTIONAL VALIDITY OF THE ACT:
Since its nascent days, the NJAC Act has been marred by controversies and substantial
questions with regard to its constitutionality have been raised. We argue that the negatives in the
Act overwhelmingly outweigh the little positives it could deliver. Firstly, in view of the
Kesavananda Bharti157 judgement, any change to the constitution must respect the basic
structure. The doctrine of basic structure has protected the constitutional identity of Indian
Constitution158 and it continues to provide for stability without stagnation and growth without
destruction of human values.159 The NJAC Act is unconstitutional as it violates the basic
structure principles of independence of judiciary160, federalism, judicial reviewand Articles 14
and 21.
155
T R Andhyarujina, A Case for Two Commissions, THE HINDU, Aug. 9, 2014

at http://indianexpress.com/article/opinion/columns/a-case-for-two-commissions/ (last visited Apr. 10, 2015).
156
ibid.
157
supra n. 7
158
Jacobsohn, G. J., Review of Politics (Constitutional Identity)361-397.
159
Soli J. Sorabjee, Palkhivala and the Constitution of India, (2003) 4 (JOUR) (2003)33
160
Held in P. Sambamurthy v. State of Andhra Pradesh & Another, (1987) 1 SCC 362; Kihoto Hollohan v. Zachillu
& Others, (1992) Supp 2 SCC 651.
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Violation of Independence of Judiciary:

Judicial integrity and judicial independence are necessary for the maintenance of
democracy and rule of law in the country, which inturn are a part of the basic structure of the
Constitution.161 Moreover, the concept of rule of law is precedent to the constitution.162 As per
Dr. B.R. Ambedkar there can be no difference of opinion in the House that our judiciary must
be both independent of the executive and must also be competent in itself.163 The Supreme
Court
has
held
that
independence
of
judiciary
is
cardinal
feature
of
the
Constitution.164Alexander Hamilton, in Federalist 78, said the complete independence of the

courts of justice is peculiarly essential in a limited Constitution.165
For ensuring judicial independence, it is necessary that most suitable persons with highest
competence and integrity are appointed as Judges in the Higher Judiciary. This requires utmost
care in the selection process. Any deviance from this would ipso facto violate the basic structure
of the Constitution. Owing to time and logistical constraints, evaluation of thousands of potential
candidates in a rational and fair manner is an impossible task for an ex-officio body like the
NJAC, thereby undermining judicial integrity and independence.
Further, the senior-most judge of the Supreme Court is to be recommended for
appointment as the Chief Justice of India if he is considered fit to hold the office. These words
are vague and open up the possibility of supersession, thereby compromising the independence
of the judiciary. To make supersession even easier any two can members declare the senior most
Judge of the Supreme Court unfit.
A consolidated reading of Articles 124, 127, 128, 217, and 222 clearly point out that by
being completely involved in every judicial appointment and transfer, its the Chief Justice who
ensures independence of judiciary. Now that the proposed system shifts this power to the NJAC
and the very possibility of three judge-members being vetoed by the executive, it would be a
destructive collapse of the independence of the Judiciary. Moreover, the nomination of eminent
persons by a predominantly political group comprising of the Prime Minister and Leader of
161
Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr., 1976 2 SCR 347
ADM Jabalpur v. ShivkantShukla, 1976 SCR 172
163
Constituent Assembly Debates(24 May, 1949) <http://parliamentofindia.nic.in/ls/debates/vol8p7b.htm>
accessed Apr. 6, 2015
164
Union of Indiav.Sankal Chand HimatlalSheth and Anr., AIR 1977 SC 2328
165
Federal 78(June 14, 1788) - <http://www.constitution.org/fed/federa78.htm> accessed Apr. 6, 2015
162
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Opposition, with the Chief Justice in a minority makes it quite possible that the eminent
members are used as friends of the executive. The veto provision in the NJAC Act gives room
to embarrass the highest judiciary because even a candidate with the complete backing of the
three judicial members can be effectively vetoed by the government for political reasons, thereby
undermining the independence of the judiciary. Excessive involvement of the political
personalities like Law Minister, the leader of the Opposition, the Governors and Chief Ministers
in the appointment of High Court judges will inevitably lead to serious political manipulation in
the NJAC as witnessed during the emergency.
The Act also empowers the Commission to transfer judges of the High Courts. With there
being no doubt about polical influence on the NJAC, it can be a catastrophe on the independent
decision-making the judges of the High Court, especially when deciding important cases against
the government. As such, transfers as a means of punishment can be against the High Court
judges who do not toe the line of the government of the day.166
Violation of Article 14 and 21:

The Act also violates Article 14 and 21 of the Constitution as the proposed ex-officio Commission
would lead to arbitrary appointments. Articles 14 and 21 ensure non-arbitrariness and rule of law and are
a part of the basic structure of the Constitution. The Supreme Court has held in numerous decisions that
transparency is a sine qua non for appointments to high offices. The NJAC Act does not lay down any
standard of transparency nor any objective criteria for selection of judges. This Act aims to
constitutionally legitimize a secret selection process with no debates, no discussions, no notifications, no
applications, no interviews, no consultations and ultimately no democratization and devoid of any
benchmark. Even the Rules and Regulations for short listing of candidates havent been provided and
much has been left for the regulations to be framed by the Commission to decideunder section 12 of the
Act. Selections could be made arbitrarily in an opaque manner as the Act gives unfettered discretion to
the Commission.
Violation of Judicial Review:
Clause 2 of Article 124A provides that no Act or proceeding of the NJAC shall be
invalidated on the ground of the existence of a vacancy or defect in the constitution of the
NJAC. This opens the possibility that recommendations made by NJAC even when all the three
166
ShadanFarasat, Judicial Appointments Amendment Violates Basic Structure Principle of Judicial Independence, at
http://blog.mylaw.net/judicial-appointments-amendment-violates-basic-structure-principle-of-judicial-independence/
(last visited Apr. 7, 2015).
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Supreme Court judges do not participate in that decision-making process may be considered
perfect and valid.
Violation of Federalism:
Not only is it that the basic feature of judicial independence that is endangered, the
proposed NJAC also imbalances federalism which is part of the basic structure of the Indian
Constitution as held by the Supreme Court in S.R. Bommai167. The executive and the judiciary at
the centre will obliterate even the limited role for the States in the matters of appointment and
transfer in High Courts.
Violation of Principles of Natural Justice:

What is further controversial is the membership of Union Law Minister in the commission. Stats
show that most of the Law Ministers are lawyers by profession, forming a possibility that they appear
before the same judge whom they have appointed while being a member of the commission. Incidence of
biasness cant be ruled out. In India, government is a major litigant and is involved in more than half the
litigation. With a major litigant influencing and determining the composition of the adjudicatory authority
(judiciary), there is a strong and reasonable chance of conflict of interest. This does not augur well with
the established principles of natural justice which form an integral part of Indian jurisprudence.168
Procedural Defect:
On the procedural front, since the NJAC Bill was introduced prior to the Constitution
(121st Amendment) Bill, the introduction, consideration and passing of the Bill is a futile
exercise as it was passed in both Houses of Parliament at a time when the provisions of orginal
Article 124(2) were in force. Though the Bill has received assent of the President, it does not
make it a valid Act. Assent of President doesnt cure the defect of unconstitutionality and
illegality of a Bill.
The proposed NJAC, an ex-officio body, is no answer to the deficiencies in the current
system as functionally and structurally, it would perpetuate many of the basic deficits and perils
of the collegium in a different manner.169According to Justice Shah it may perpetuate a culture
167
S. R. Bommai v. Union of India, AIR 1994 SC 1918.

A. K. Kraipak& Ors. Etc v. Union of India, AIR 1970 SC 150.
169
Kaleeswaram Raj, Federalism in Judicial Appointments, THE HINDU, Sept. 17, 2014 at
http://www.thehindu.com/opinion/op-ed/federalism-in-judicial-appointments/article6416552.ece (last visited Apr. 9,
2015).
168
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of trade-offs and sycophancy present in the collegium system of appointment.170There are valid
reasons to be sceptical of the outcome of the NJAC in the long run, given that the scope for
manipulation and favoritism cannot be fully eliminated even within it.171
4. COMPARATIVE ANALYSIS OF JUDICIAL APPOINTMENTS

Considering the deficiencies of the above mechanisms, a new system of appointment of
judges has to be evolved. There is no going back now to the original system of the executive
appointing judges in consultation with the judiciary, by invoking the doctrine of original
intent. Much has changed in the world since we enacted the Constitution. Processes of judicial
appointments are far more participatory all over the world.172
Internationally, the appointment of judges to supreme courts in various countries like the
UK, US, France, Germany are found to be appointed by political executives, senates, presidents
or by elected bodies.173 The system of self selection of judges by the judiciary is unique to India.
In the US, judge selection is entirely a political process. However, the political scenario of India
renders such a system inapplicable and unworkable. In Britain, the 15-member Judicial
Appointments Commission has only five judge-member with the chairperson being a lay
person.174 Along with separate selecting bodies for the High Court and Supreme Court, it has 70
staff members which enable the commission to function properly without any hitches. In Canada,
the Advisory Committee for Judicial Appointments includes a Member of Parliament from each
recognised party, a retired judge, a nominee of the Attorney General, a nominee of the law
societies and two prominent Canadians who are neither lawyers nor judges.175 Though some of
the features such as member of Parliament from each recognised party may be questionable in
the Indian context, some other features such as diversity of the stakeholders in the process can be
taken into account. In the South African JAC, law minister is formally consulted for comments
170
Krishnadas Rajagopal, NJAC Bill Has Not Removed Flaws of Collegium System, Says Justice Shah, THE HINDU,
Oct. 8, 2014 at http://www.thehindu.com/news/national/njac-bill-has-not-removed-flaws-of-collegium-system-saysjustice-shah/article6473831.ece (last visited Apr. 8, 2015).
171
K T Thomas, In Defence of the Collegium, THE INDIAN EXPRESS, Aug. 13, 2014 at ,
http://indianexpress.com/article/opinion/columns/in-defence-of-the-collegium/ (last visited Apr. 10, 2015).
172
supra n. 22.
173
M Veerappa Moily, A needless confrontation, THE INDIAN EXPRESS, Aug. 19, 2014
at http://indianexpress.com/article/opinion/columns/a-needless-confrontation/ (last visited Apr. 9, 2015).
174
http://www.firstpost.com/politics/judicial-supremacy-versus-parliament-njac-clearly-better-collegium-system1665749.html (last visited Apr. 10, 2015).
175
supra n. 22.
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but the final word lies with the commission.176 However, its working is far from satisfactory and
at times appointments have been influenced by the government.177
5. RECOMMENDATIONS
The practice employed by the Constituent Assembly while drafting the Constitution merits
a mention. There is a need to draw from the principles and procedures of judicial appointments
of various established democracies and modify and adapt them as per the needs of the society.
The need of the hour is to strike a balance between the independence of the judiciary and
ensuring its impartiality and accountability.178 We should not have a situation where we jump
from the frying pan of the collegium to the burning fire of a chaotic National Judicial
Commission.179 The best course of action would be to make a presidential reference under Art.
143 and obtain an advisory opinion from the Supreme Court on the prospective mechanism of
judicial appointments. This will also avoid an unnecessary conflict and also lay down
foundations for a healthy dialogue system.
Further, we are faced with the two-fold objective of ensuring the quality and independence
of judges appointed. The Herculean task of selecting about hundred judges in the higher
judiciary every year while fulfilling these objectives demands a full-time and not an ex-officio
body. For achieving the twin objectives, an independent constitutional body comprising of five
members who may be retired judges or eminent jurists should be established. As far as the
selection process is concerned, the Chairman of the body may be selected by a collegium of all
the judges in the Supreme Court. Similarly, the other four members may be selected by a
collegium of Chief Justices of all the High Courts, the Union Cabinet, a collegium of the leader
of opposition of both houses of the Parliament and the Speaker of the Lok Sabha and a collegium
of the Chief Election Commissioner, Central Vigilance Commissioner and the CAG respectively.
The body should evaluate every aspect of the prospective candidates such as integrity,
competence and ability and also interview them in a proper manner. This is in lines of the
suggestion made by The Committee on Judicial Accountability. Also, this body may be
176
supra n. 8.
T R Andhyarujina, A case for two commissions, THE INDIAN EXPRESS, Aug. 9, 2014
at http://indianexpress.com/article/opinion/columns/a-case-for-two-commissions/ (last visited Apr. 9, 2015).
178
Mohammed Salim, Seven qualities of highly effective judges, THE INDIAN EXPRESS, Aug. 14, 2014 at
http://indianexpress.com/article/india/india-others/seven-qualities-of-highly-effective-judges/ (last visited Apr. 7,
2015).
179
supra n. 47.
177
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supplemented with a permanent Secretariat and a full time Search Committee. The full time
Search committee which may be composed of retired High Court judges may assist the body in
this regard and bring in the much needed time and care to this task. This committee must
function in a transparent manner and involve the bar as an important stakeholder in the
appointment of judges. This committee could be similar to the staff system of U.K. And
crucially, this record of facts, inquiries, scrutiny of complaints and findings must be available to
the public. Further, in order to reduce the workload, there ought to be two separate judicial
commissions, one for the Supreme Court and the other for the High Court. This is again in line
with the practice in U.K.
Thus, by having such a mechanism in place, both the self selecting procedure of judges and
the threat to independence of judiciary can be eliminated since the body would be independent of
the government and the sitting judiciary. Further, the aspect of federalism is also taken care of as
there will be a member appointed by the Chief Justices of all the High Courts. Ultimately, the
system will succeed or fail on the one test has it selected the best judges of capacity and
independence. If we can cure or avoid the legislative snares, and bring in a full-time body to do
the groundwork for the commission, we would marry efficiency to the sunshine process of
democracy.180
180
Sriram Panchu, For a judicial search committee, THE HINDU, Aug. 15, 2014
at http://www.thehindu.com/opinion/lead/for-a-judicial-search-committee/article6318995.ece (last visited Apr. 8,
2015).
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JUDICIAL RESPONSE TO WOMENS RIGHTS IN INDIA

-
SATENDRA PRATAP SINGH
The judiciary, at national and global level is playing a vital role in the protection
of rights of women. The Constitution of India guarantees to all Indian citizens certain
basic and necessary fundamental rights. These rights include the right to equality and
non-discrimination based on gender and the right to live with dignity. Over the decades
the general public has come to repose absolute faith in the judiciary. The Supreme
Court of India has responded to issues of gender justice in a positive manner. It has
made a determined bid to assuage the womens grievances against discrimination by
upholding their constitutional and legal rights. It has acted as a protector of the women
rights. It has treated the women as a special group and protected them from all sorts of
exploitation, harassment and cruelties. It has applied the principles of social justice in
some areas like dealing with stridhan, divorce, and proprietary rights for women and
has also appreciated the protective discrimination in the favour of women. 181 Whenever
necessary, the Supreme Court has not failed to warn the Union Government as well as
State governments of their responsibility towards womens rights which must not be
trampled upon. It is proved from catena of judgments pronounced by Supreme Court
which can be termed as stepping stones towards the promotion of womens right on
socio-economic and political environment. 182
4th Year, Institute of Law, JiwajiUniversity, Gwalior (M.P.).

Nazeer, H. Khan, Ambedkar on Gender Equality : Myth and Reality, in Nazeer H. Khan (ed), B.R.
Ambedkar on Federalism, Ethnicity and Gender Justice 181 (2001); see also, Shreeniwas, N.S., Human Rights,
Many Sides to a Coin, 35 (2008).
182
Ibid.
181
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WOMEN RIGHTS AND THE JUDICIAL RESPONSE

Judiciary in India is the guardian and protector of the rights of the people. Some
of the landmark cases decided by the Supreme Court are worth mentioning in this
chapter.
(i) Denial of Job on the Basis of Sex
In Air India v. Nargesh Meerza, 183 the apex court has held that women shall not
be denied employment merely on the ground that she is a women do it amounts to
violation of Article 14 of the Constitution. In the instant cas e, wherein air hostesses of
Indian Air Lines and Air India have challenged the service rules which state that :
Air hostesses shall not marry for the first four years of their joining. They will lose
their jobs if they become pregnant. They shall retire at the age of 35 years unless
managing director extends the term by ten years at his discretion.
The Supreme Court suggested that the first provision is legal as it would help in
promotion of the family planning programmes and will increase the expenditur e of air
lines recruiting air hostessed on temporary or adhoc basis, but the second and third
provisions to be declared as unethical, callous, cruel, detastaber, abhorrent, un reasonable, arbitrary, unconstitutional and an open insult to Indian womanhood. 184
Thus, the above decision of the Apex Court has greatly elevates the status of working
women.
(ii) Denial of Seniority Promotion of the Ground
In C.B. Mathumma v. Union of India, 185 the Supreme Court held that the results
relating to seniority and promotion in Indian Foreign Service which make
discrimination only as ground of sex is not only unconstitutional but also a hangover of
masculine culture of having cuffing the weaker sex. In the instant case, a writ petition
was filed before the apex court wherein it was contained that she had been denied
promotion of Grade-I on the ground of sex, which violated Article 15 of the
Constitution of India. The apex court allowed the petition and held that Rule 8(2) of the
Indian Foreign Service (Conduct and Discipline) Rule, 1961 which required that
183
AIR 1981 SC 1829.

Ibid.
185
AIR 1979 SC 1868.
184
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unmarried women member should take permission of the government before she
marries. 186
(iii) Reservation of Seats for Women in Colleges
In Dettatreyo v. State of Bombay, 187 the Bombay High Court held that
reservation of some seats in womens colleges is not unconstitutional. The Court
observed that establishment of education institution exclusively for women are not hit
by Article 15 of the Constitution. 188
(iv) Reservation in Service for Women
In Govt. of A.P. v. P.B. Vijay Kumar, 189 the Supreme Court held that the
reservation to extent of 30 percent made in the state services by Andhra Pradesh
Government to women candidates is valid. The Division Bench of Supreme Court
emphatically declared that the power conferred upon the State by Article 15(3) is wide
enough to cover the entire range of State activity including employment under the State.
Thus, making special provisions for women in respect of employment or posts under the
State is an integral part of Article 15(3). This power conferred under Article 15(3) is
not witted down in any manner by Article 16. 190
(v) Special Provision for Women
In Choki v. State of Rajasthan, 191 the Rajasthan High Court has held that it is
valid on the ground that it makes special provision for women and therefore it is
protected under Article 15(3) of the Constitution.
Anjali Raj v. State of West Bengal, 192 the Court held that Article 15(3) enables
the State to make special provision favouring women, it cannot be interpreted in a
manner so that it denies the right already guaranteed to them under Article 15(1).
(vi) Prevention of Sexual Harassment of Working Women
Vishaka v. State of Rajasthan, 193 is a landmark judgment on sexual harassment
in work places. The primary question in the Vishaka case was whether the State had
186
Ibid.
AIR 1953 Bom. 311.
188
Ibid.
189
AIR 1995 SC 1684
190
Ibid.
191
AIR 1971 Raj. 10.
192
AIR 1952 Cal. 825.
187
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responsibility to protect its employees and workers. A writ petition was filed in the
Supreme Court with a three-fold aim:
(i)
firstly, to assist in finding suitable methods for the realization of gender

equality;
(ii)
secondly, to prevent sexual harassment; and
(iii)
thirdly, to fill the vacuum in the existing legislation.
The Supreme Court has laid down exhaustive guidelines to prevent sexual
harassment of working women in places of their work until legislation is enacted for the
purpose. The Court held that it is the duty of the employer or other responsible person
in work place or other institutions whether public or private, to prevent sexual
harassment of working women. PIL seeking enforcement of fundamental rights of
working women under Articles 14, 19 and 21 of the Constitution. The immediate cause
for filing the petition were alleged brutal gang rape of a social worker of Rajasthan. The
Supreme Court in absence of enacted law to provide for effective enforcement of basic
human rights of gender equality and guarantee against sexual harassment laid down the
following guidelines:
1.
All employer persons incharge of work place whether in the public or private
sector, should take appropriate steps to prevent sexual harassment without
prejudice to the generality of his obligation, he should take the following
steps:
(a)
Express prohibition of sexual harassment which include physical contact and

advances a demand or request for sexual favour. Sexually coloured remarks,
showing pornographic or any other unwelcome physical, verbal or non-verbal
conduct of sexual nature should be noticed, published and circulated in
appropriate ways.
(b)
The rule or regulation of Government and public sector bodies relating to

conduct and discipline should include rule prohibiting sexual harassment and
provide for appropriate penalties in such rules against the offender.
193
AIR 1997 SC 3011.
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(c)
Appropriate work conditions should be provided in respect of work, health

and hygiene to further ensure that there is no hostile environment towards
women at work place.
2.
Where such conduct amounts to specific offences under the Indian Penal
Code or under any other law, the employer shall initiate appropriate action in
accordance with law by making a complaint with the appropriate authority.
3.
The victims of sexual harassment should have the option to seek transfer of
the perpetrator or their own transfer.
The fundamental right to carry on any occupation trade or profession depends on
the availability of a safe working condition. Right to life means life with dignity. The
primary responsibility for ensuring such safety and dignity through suitable legislation,
and the creation of the mechanism for its enforcement is the responsibility of the
legislature and the executive. Articles 14, 19 and 21 are brought before the Court for
redressal under Article 32 of the Constitution in effective redressal requires that some
guidelines should be laid down for the protection of these rights to fill the legislative
vacuum is being said by justice Verma. 194
In T. Saritha v. Venkatasabaih, 195 the Constitutional validity of Section 9 of the
Hindu Marriage Act was challenged on the ground that the said provision is violative of
Article 14 and 21 of the Constitution of India. In the present case the Court observed
that the remedy of restitution of conjugal right to privacy and human dignity guaranteed
by Article 21 of the Constitution, hence void.
According to Court, a decree for
restitution of conjugal rights constituted the grossest form of violation of any

individuals right to privacy. It denied the women her free choice whether, when and
how her body was to become the vehicle for procreation of another human being. A
decree for restitution of conjugal rights deprived a women of control over her choice as
and when and by whom the various parts of her body should be allowed to be used. The
right to privacy guaranteed by Article 21 of the Constitution was flagrantly violated by
decree for restitution of conjugal rights. 196
194
Ibid.
AIR 1983 SC 356.
196
Ibid.
195
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(vii)
Compensation for Rape Victim

The Supreme Court in the landmark case, Delhi Domestic Working Women
Forum v. Union of India, 197 held rape and sexual assault of women to be a violation of
their rights of personal liberty and life and awarded compensation or the same. Rape
does indeed pose a serious problems for criminal justice -system. These are crimes for
hardest penalties, but often times such crimes eclipse the near plight of the victim. Rape
is an experience which shake the foundation of the lives of victims. For many its affect
is a long term one impairing their capacity for personal relationships, altering their
behaviour and values are generating endless fees. In addition to the trauma of the rape
itself victim have had to suffer further during legal proceeding. 198
The defects in the present system are numerous, namely, complai nts are handled
roughly and are not given such attention as in wanted. The victims more often plan not
humiliated by the police. The victims have invariably found rape trial a traumatic
experience. The experience of giving evidence in Court has been negati ve and
destructive. The victims often says, they considered or deal to be even worse than the
rape itself. In this background, the apex Court has suggested the broad parameters in
assisting victim of rape and laid down the following broad guidelines :
1.
The complaint of sexual assault cases should be provided with legal

representation. It is important to have some one who is well acquainted with the
criminal judicial system.
2.
Legal assistance will have to provided at the police station since the victim of
sexual assault might very well in distressed state upon arrival at the police
station. The guidance and support of a length at this stage and which she has
been questioned would be of great assistance.
3.
The police should be under a duty to inform the victim of her to representation
before any questions were asked of her and that the police report should state
that the victim was so informed.
4.
A list of advocates willing to act in these cases should be kept at the police
station for victims who did not have own lawyer was unavailable.
197
198
(1995) 1 SCC 14.

Ibid.
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5.
The advocate shall be appointed by the Court upon application by police at the
earliest convenient moment, but in order to ensure that victims were questioned
without undue delay, advocates would be authorized to act a s police station
before leave of the Court was sought or obtained.
6.
In all rape trials unanimity of the victim must be maintained as far as necessary.
7.
It is necessary having regard to the Directive Principles contained in Part IV

under Article 38(1) of the Constitution of India to set up Criminal Inquiries
Compensation Board Rape victims frequently insure substantial financial loss
some for example, are too traumatized to continue in employment.
8.
Compensation for victims shall be awarded by the Court on the conviction of the
offender and by the criminal inquires compensation board whether or not a
conviction has taken place. The board will take into account many factors while
awarding compensation i.e. pains suffering and shock as well as loss of earn ings
due to pregnancy and the expenses of child birth if this accused as a result of
rape. 199
This was reiterated in Bodhisattwa v. Subhra Chakraborty. 200
The Supreme
Court stated that women have the right to life and liberty under Article 21; similarly,
they also have the right to be respected and treated as equal citizens. The Court held
that offences of rape were acts of aggression aimed at degrading and humiliating
women. Such offences were crimes against basic human rights and are also violative of
the fundamental right to life under Article 21. The judges emphasized that the
dignity of women cannot be touched or violated. Thereby, the right to life includes the
right of women to live with dignity and to lead a peaceful life. In this case the Court
went a step further by saying that fundamental rights could be enforced even against
private bodies and individuals. 201
In 2000, the Supreme Court in Chairman, Railway Board v. Chandrima Das,202
reiterated that physical violence at the hands of government emplo yees who outraged
the modesty of women violates the right to dignity of women. Of special note in the
199
Ibid.
(1996) 1 SCC 490.
201
Id., at 491.
202
AIR 2000 SC 988.
200
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case is that the court held that the right under Article 21 extends to non -citizens as well.
In this case the victim was a Bangladeshi citizen. In this case a practicing advocate of
the Calcutta High Court filed a petition under Article 226 of the Constitution against
the various Railway authorities of Eastern Railway claiming compensation for victim
Smt. Hanuffa Khaton A Bangladeshi national who was gang raped by the employee of
Railways in a room at Yatri Niwas of Howrah station of the Eastern Railway. The
Supreme Court awarded a sum of Rs. 10 lacs as compensation to the victim. The Court
rejected the argument that the violating acts were not performed in the course of official
duty and thereby the State may not be held liable. Instead, the Court went a step further
indicating that the theory of sovereign power was no longer available within the
framework of a welfare state. The functions of the Government in a welfare state are
manifold, and extend to social, economic and political spheres. Such activities cannot
be said to be related to the exercise of sovereign power and thereby defence cannot
exist. Accordingly, the Court ruled that the failure to protec t fundamental rights
enshrined in the Constitution was a breach of the duty of the State and its entities, and
compensation ought to be paid by them. 203 The Supreme Court in State of Punjab v.
Gurmit Singh 204 held that the trial of rape cases must invariably b e held in camera. The
Court observed that the offence of rape is a violation of the right to privacy of the
victim. The apex Court further observed that:
It is a sad reflection on the attitude of indifference of the society towards the
violation of human dignity of the victim of sex crimes. We must remember that a rapist
not only violates the victims privacy and personal integrity, but inevitably causes
serious psychological as well as psychical harm in the process. Rape is not merely
physical assault. It is often destructive of the whole personality of the victim. A murder
destroys the physical body of his victim, a rapist degrades the very soul of the helpless
female. 205
203
Ibid.
AIR 1996 SC 1393.
205
Ibid.
204
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(viii) The Immoral Traffic (Prevention) Act, 1956 and Indian Constitution
Article 23 of the Constitution provide the right against exploitation. This
constitutional provision prohibits traffic in the human being includes dev dasi system.
Trafficking of women is one of the most heinous crime perpetrated against humanity.
Women are the foundation of a strong nation. They being an important segment of the
society cannot be deprived of their basic right to live with human dignity.
In Smt. Shama Bai v. State of Uttar Pradesh, 206 the main question before the
lower court was whether suppression of Immortal Traffic in Women and Girls Act can
be struck down if it offend Article 19(1)(g) of the Constitution of India. The petitioner
tried to bring the profession of prostitution within the ambit of the above provision and
stated that the work of a prostitute is a profession, occupation or trade within the
meaning of Article 19(1)(g) 207 and the provision of SITA are not reasonable restrictions
on the exercise of this fundamental right. While disagreeing the reasonableness of
otherwise of the restrictions imposed on the Trade or profession of a prostitute by this
Act, the Court has to keep in mind that prostitution is stur on human dignity and shame
to human civilization. Its eradication by gradual and evolutionary process is ultimate
aim of all civilized nations. The Court further observed that so long as it is not possible
to completely abolish it, it has not to be tolerable as an evil necessity, but it is only
reasonable that restrictions should be imposed to mitigate so far as possible the evil
effects of the Trade or profession and to protect the interest of the general public. 208
The observation of the Honble Court clearly acknowledge the fact that
prostitution is a socially disapproved form of living to which the law also does not
extend prohibition. 209
In Upendra Baxi v. State of U.P., 210 a letter which was treated a writ petition
brought to the notice of the apex Court the condition in which girls/women were living
in the Government Protective Home at Agra, were being denied their right to live with
206
AIR 1959 All. 57.

Article 15 (1)(g) run All citizens shall have the right to practice any profession or to carry on any
occupation, trade, or business.
208
Ibid.
209
Ibid.
210
AIR 1987 SC 191.
207
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basic human dignity in that protective home. Several directives were issued by the
Court which inter alia included setting up of a Board of visitors on which there shall be
at least three social activists working in the field of welfare of women and particularly
suppression of immoral traffic in women, and measures regarding police protection
throughout day and night for the inmates of the protective home and directions to
district Judge, Agra to nominate two socially committed advocates to visit and enquire
protective home once in a fortnight etc. The Court further observed, it is absolutely
essential that the inmates in the protective home should be provided a proper
rehabilitation programme. 211 So that when they come out of protective home, they are
in a position to look after themselves and they do not slide into prostitution on account
of economic want. The inmates must be given vocational training and guidance by way
of rehabilitation. 212
(ix)
Protection of Women from Prostitution and Rehabilitation of their Children

In Gaurav Jain v. Union of India, 213 the petitioner, a public spirited advocate,
Gaurav Jain filed a public interest petition seeking appropriate directions to the
government for the improvement of the plight of prostitution fallen women and their
children. He was inspired by reading an article entitled A red light trap, society
gives no chance to prostitutes off spring, published in India today dated July 11, 1998.
The Supreme Court has issued a numbers of directions to the government and all social
organizations to take upon appropriate measure for prevention of women in various
forms of prostitution and to rescue them from falling them again into the trap of red
light areas and to rehabilitate their children through various welfare measure so as to
provide them with dignity of person, means of livelihood and socio -economic
improvement. 214
The Court has issued the following directions:
1.
The Court held that it is the duty of government and all voluntary non governmental organization to take necessary measures for protecting them from
211
Ibid.
Ibid.
213
AIR 1997 SC 3021.
214
Ibid.
212
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prostitution and to rehabilitate them so that they may lead a life with dignity of
person.
2.
The Court directed that they should be provided opportunity for education,
financial support, developed marketing facilities for goods produced by them. If
possible, their marriages may be arranged so that the problem of child
prostitution can be eradicated. Marriage would give them real status in society.
They should be given housing facilities, legal aid, free counseling assistanc e and
all similar aids and services so that they do not fall into the trap of red light area
again.
3.
The Court held that economic empowerment is one of the major factors that
prevent the practice of dedication of the young girls to the prostitution as De va
dasis, Joigins or Venkatasins. Referring the various measures taken up by
different states, the Court directed that the social welfare department should
undertake similar rehabilitation programmes for the fallen victims so that the
foul practice is totally eradicated and they are not again trapped into the
prostitution. The Court gave example of state of Andhra Pradesh where the State
Government is providing housing facilities, free treatment in hospitals and
pension to Devdasis women of 60 years or above and adult literacy programme.
Such measures are being taken to Non-governmental organization in the State of
Maharashtra, Karnatka and Andhra Pradesh.
4.
The Court directed that the secure and rehabilitation of the child prostitutes and
children should be kept under nodal department, namely, Department of Women
and Child Development, Ministry of Welfare and human Resources, Government
of India which will devise suitable schemes for proper and effective
implementation. The Court directed the Ministry of Welfare and Human
Resources, Government of India for the establishment of Juvenile homes.
5.
The Court directed to constitute a committee within a month from the judgment
which would make an indepth study into these problems and evolve suitable
schemes as are appropriate and consistent with the directions given above. It
shall submit its report within three months and the basis of its reports direction
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would be given to the State Government for effective implementation of the

schemes. The Nodal Department would enforce and regularly be supervised by
the Minister of Welfare and Human Resources.
A permanent committee of Secretaries should be constituted to review the
progress of the implementation on annual basis and to take such other step as may be
expedient in the effective implementation of the schemes. Periodical progress as to
funding and enforcement of the scheme should be submitted with Registry of the
Supreme Court. it is hoped. The Court said, the above law and direction would relieve
the human problem by rehabilitation of the unfortunate fallen women caught in the trap
of prostitution their children would be brought into the main stream of the social order.
These directions would enable them to avail equality of opportunity and of status with
dignity of person which are the arch of the Constitution. 215
The Court held that under Article 32 of the Constitution, the Court has power to
adopt such procedure as is expedient in a given fact and situation deal with the matter
appropriately. Therefore, the rigors of pleading or the reliefs sought from adversial
litigation has been soften, new methods, tool and procedures have been evolved to meet
out justice and to enforce fundamental right.
(x)
Principles of Equal Work is a Constitutional Goal

In Ranbir Singh v. Union of India, 216 the apex Court has expressed the opinion
that the principle of equal work is not declared in the Constitution to be a

fundamental right but it is certainly a Constitutional goal. Article 39 (d) of the
Constitution goal. Article 39(d) of the Constitution declares that State shall direct its
policy towards securing that there is equal pay for equal work for both men and women.
The Court further said that continuing Articles 14 and 16 in the right of preamble and
article 39(d), the principle of equal pay for equal work is deducible from those Articles
and may be property applied to cases of unequal scales of pay based on no classification
or irrational classification though, those drawing the different scales of pay do identical
work under the same employer.
215
216
Ibid.
AIR 1982 SC 879.
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In the present case, though not a fundamental right is certainly a constitutional

goods and therefore capable of enforcement through constitutional remedies under
Article 32 of the Constitution.
State of Haryana v. Rajpal Sharma 217 is another case in which the Supreme
Court held that the teacher employed in privately managed aided schools in the State of
Haryana are entitled to the same salary and dearness allowance as is paid to teachers
employed in Government Schools. If this kind of work is identical then it does not
matter of men are paid more, but in case work is of the same type, both men and women
should be paid equally without any discrimination. The doctrine of equal pay for equal
work is equally applicable to both men and women, even the daily wagers are also
entitled the same wages as other permanent employees in the department employed to
do the identical work. 218
The Supreme Court in Jaipal v. State of Haryana, 219 held that the doctrine of
equal work equal pay would apply on the premise of similar work, but it does not mean
that there should be complete identity in all respects. If two classes of persons do same
work under the same employer, with similar responsibility, under similar working
conditions the doctrine of equal work equal pay would apply and it would not be open
to the state to discriminate one class with the other in paying salary. The State is under
a Constitutional obligation to ensure that equal pay is paid for equal work. 220
In Inder Singh v. Vyas Muni Mishra JT, 221 the Supreme Court held that when
two groups of persons are in the same or similar posts performing same kind of work
either in the same or in different government department, the court may in suitable
cases direct equal pay by way of removing unreasonable discrimination and treating the
two groups, similarly situated, equally. 222
217
AIR 1997 SC 449.

Daily Hates Casual Labour v. Union of India, (1988), 1 SCC 122.
219
1988 (3) SCC 354 AIR 1988 SC 1505.
220
Ibid.
221
1987 (3) SC 384.
222
Ibid.
218
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(a)
History and Evolution of the Principle of Equal Pay for Equal Work in Bank
Officers Association v. State Bank of India, 223 the apex Court has explained the
history and evolution of the principle, equal pay for equal work. Historically,
equal pay for equal work has been a slogan of womens sex based discrimination
in the pay scales of men and women doing same or equal work in the same
organization. It is meant to prevent discrimination on the ground of sex, against
women in the matter of employment.
(b)
Employer is Duty Bound to Pay Equal Remuneration

In Mackinnon Mackenzie and Co. v. D. Costa, 224 the Supreme Court has
observed that the question of equal work can be decided on the basis of various factors
like responsibility, skill, effort and condition of work.
Whether work is of a similar nature a broad approach should be taken. The
Court further observed that in doing so the fact that duties actually and generally
performed by men and women not theoretically possible, should be considered. In the
instant case, the apex Court has held that confidential lady stenographer perform the
same or similar nature of work. Hence, lower remuneration to confidential lady
stenographers is discriminatory and violates section 4(1) of equal remuneration Act,
1976 and also Article 14 and 39(d) of the Constitution of India. 225
(xi)
Female Daily Wager Entitled to Maternity Benefits

In Female Worker (Must Roll) case 226, the Supreme Court held that workers on
casual basis and daily wages of Municipal Corporation are equally entitled to maternity
benefits. In the present case, the Court observed the activity of the Delhi Municipal
Corporation by which construction work was undertaken or roads, lands and repaired or
trenches were dug would fall with the definition of industry. The workmen or for the
matter those employed on muster roll for carrying on these activities would, therefore,
be workmen and the dispute between them and the Corporation would have to be
223
1998 (1) SCC 429.

AIR 1987 SC 1281.
225
Ibid.
226
AIR 2000 SC 1274.
224
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tackled as an industrial dispute is the light of various statutory provision of the

industrial law, one of which is the Maternity Benefit Act, 1961. 227
(xii)
Uniform Civil Code and Gender Justice Equality

In Sarla Mudgal v. Union of India, 228 the apex Court has passed directions to
the Central Government to take fresh look at Article 44 of the Constitution which
enjoins the State to secure a uniform civil code which, according to the Court is
imperative for both protection of the oppressed and promotion of natural unity and
integrity. The Court while dealing with the case where the question for consideration
was whether a Hindu Husband married under Hindu Law, converted to Islam without
dissolving the first marriage after he can solemnize a s econd marriage. It has been held
by the apex Court that such a marriage will be illegal and the husband can be
prosecuted for bigamy under section 494 of the Indian Penal Code, 1860. In the present
case, the Court further held that a Hindu Marriage continu es to exist even after one of
the spouse converted to Islam. There is no automatic dissolution of Hindu Marriage. 229
It can only be dissolved by a decree of divorce on any of ground mentioned in
section 13 of the Hindu Marriage Act. Accordingly, the second marriage of a Hindu
after his conversion to Islam was void in term of Section 494 of I.P.C. and the husband
was liable to be prosecuted for bigamy.
In Mohd. Ahmed Khan v. Shah Bano Begum,230 the Supreme Court observed in
the matter relating to the Muslim husbands liability to maintain his wife beyond Iddat,
who is not able to maintain herself. The Court held that section 125 of Code of Criminal
Procedure, 1973 which imposes such legal obligation on all husbands in secular
character and is applicable to all religions. In this case, the Supreme Court emphasized
the need for codifying a common civil code and said:
A Common Civil Code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies. No commu nity is
likely to bell the cat by making gratuitous concessions on this issue. It is the
State which is changed with the duty of securing a uniform civil ode for the
227
Ibid.
AIR 1999 SC 1531.
229
Ibid.
230
AIR 1985 SC 945.
228
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citizens of the country and unquestionable. It has the legislative competence to

do so.
It is unfortunate to note that there is no uniform civil ode in India. However,
there is a uniform criminal code which is very much in existence. Consequently, the
criminal law is applicable to all citizen irrespective of the fact as to what religion the y
belong to there is no uniformity in civil laws pertaining to divorce, maintenance,
marriage, adoption and succession governing the Hindu, Muslims, Christians and Parsis
etc.
There are different laws like the Hindu Marriage Act, the Hindu Minority and
Guardianship Act, the Hindu Succession Act, the Hindu Adoption and Maintenance Act
governing personal matters of Hindu whereas Muslims are governed by their personal
laws like the Shariat Act, the Dissolution of Muslim Marriage Act and the Muslim
Women (Protection and Rights on Divorce) Act. Similarly, the Christians in India are
governed by the Indian Christian Marriage Act, the Indian Divorce Act, Cochin
Christian Succession Act. Parsis are governed by a different set of their personal laws
based on different religions.
Article 44 of the Constitution of India directs the State to make a Uniform Civil
Code throughout the territory of India since this constitutional provision falls under the
chapter namely Directive Principles of State Policy. It cannot be enforced by the Court
of law. There is no doubt, this particular goal is towards the achievement of gender
justice, the State has not yet made any efforts to introduce uniform civil code in India,
the judiciary has recognized the necessity of the uniformi ty in application of civil laws
like law of marriage, succession, adoption and maintenance etc. in the case of Sarla
Mudgal and other cases.
(xiii) Paramount Consideration is Welfare of Children
The Supreme Court in Sarita Sharma v. Sushil Sharma, 231 observed that
ordinarily a female child should be allowed to remain with the mother so that she can be
properly looked after. It is also not desirable that two children are separated from each
other. If female child has to stay with the mother. Hence, in India also proper care of
231
AIR 2000 SC 1019.
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the children is taken and they are at present studying in good school. Both the children
have a desire to stay with the mother. At the same time it must be said that the son who
is elder than the daughter has good feeling for his father also. Considering all the
aspects relating to the welfare of the children in spite of the order of the Court in
U.S.A. It was not proper to direct the appellant mother to handover the custody of
children to the husband and allow him to take them to USA su ch direction of the High
Court is set aside.
(xiv) Mother Can Act as a Natural Guardian During the Life Time of Father
In Ms. Githa Hariharan v. Reserve Bank of India, 232 the apex Court held that
the father cannot claim that he alone was the natural guardi an and his wife could take
no decision without his permission. It was held that the mother of a minor was relegated
to an inferior position on the ground of sex alone since her right as a natural guardian is
made cognizable after the father, which was violation of Article 14 and 15 of the
Constitution on that ground. Hence, the mother can act as a natural guardian of the
minor during the life time of the future who would be deemed to be absent.
(xv)
Maintenance of Women and Code of Criminal Procedure

Section 125 of Criminal Procedure Code, 1973, order for maintenance of Wives,
Children and Parents:

Section 125(1) if any person having sufficient mean neglects or refuses to maintain:
(1)
his wife unable to maintain
(d)
his mother, unable to maintain herself. 233

The womans inferior position throughout the ages not merely in family and
society but also in the matter of proprietary rights has been subject of deep concern in
our contemporary society. 234
In Mohd. Ahmad Khan v. Shah Bano Begum, 235 the Supreme Court observed
that the matter relating to the Muslim husbands liability to maintain his wife beyond
Iddat who is not able to maintain herself. 236
232
AIR 1999 SC 1149.

Section 125 of Cr.P.C. 1973.
234
Sharma Preeti, Hindu Womens Right to Maintenance, 8 (1990).
235
AIR 1985 SC 945.
233
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In Noor Saba Khatoon v. Mohd. Quasim, 237 the Supreme Court has held that a
divorced Muslim women is entitled to claim maintenance by her children till they
became major. The court held that both under the Muslim Personal Law and under
Section 125 of the Criminal Procedure Code, 1973, the obligation of the father was
absolute when children were living with the divorced wife. 238
The children of Muslim parents are entitled to claim maintenance under section
125 of the Criminal Procedure Code for the period till they attain majority or are able to
maintain themselves, whichever is earlier and in case of female, till they get married. 239
In Landmark Judgment in Dainik Lalif v. Union of India, 240 a five judge
constitutional bench of the Supreme Court upheld the constitutional validity of the
Muslim Women (Protection of Rights on Divorce, Act) 1986 and held that a Muslim
divorced women has right to maintenance even after Iddat period under the 1986 Act.
The court said that a Muslim husband is liable to make reasonable and fair provision for
the future of divorced wife which clearly extends beyond the Iddat period in terms of
section 63 (1)(a) of the ct. Also, a divorced woman who has not remarried and who is
not able to maintain herself after Iddat period can proceed as provided under section 4
of the Act. If the relatives are found unable to pay her maintenance the Magistrate may
direct the state Wakf Board established under the Wakf Act to pay such maintenance. 241
It may, therefore, sum up that the judiciary in India has played a vital role in the
upliftment of the women. It has protected the rights of women by delivering la ndmark
pronouncements. Vishakas case is the landmark case for women to save them from
sexual harassment in any government and private working place or institutions. The
Supreme Court has given detailed guidelines in this regard. Some other cases are there
for protection of women from discrimination and exploitation. Judiciary is the guardian
and protector of the womens rights. It protect them from crimes and atrocities against
them. The foregoing study also reveal that Shah Bano case is also a historical judgment
236
Ibid.
AIR 1997 SC 3280.
238
Ibid.
239
Pandey, J.N., Constitutional Law of India, 374 (2004).
240
AIR 2001 SC 3262.
241
Ibid.
237
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for the Muslim women. The Muslim women are able to claim maintenance under
section 125 of the Code of Criminal Procedure. It protects the Muslim women from
starvation and provides the proper shelter for the women who are not able to maintain
themselves. The number of judgments pronounced by Supreme Court proved stepping
stone toward promotion of womens right in socio-economic and political environment.
The judiciary has played the role of catalyst in ensuring the protection of womens
rights in an effective manner. To be true, the judiciary has altered effective protection
to womens rights. It can motivate the government to take positive steps towards
implementation of directive principles to ensure a clean good and honest administration
by taking cognizance of public complaints. The judiciary activism has been hailed as
saviour of the nation and especially for women.
CONCLUSION
The Indian women are still unfree, exploited, sold as commodity, liquidated without the
law and held hostage by an exploitative combination. Gender injustice to the weaker sex is the
disturbing concern of all Indians, men and women, politicians, professionals and people with a
social conscience, and we must battle for the cause of freedom and development of the feminine
sector as an integral and strategic part of the struggle for human justice. No society can be free,
fair and just until its women enjoy freedom and justice and opportunity for enfoldment of their
full potential. The discrimination against women is incomparable with human dignity. It is an
obstacle to the full development of the potentialities of women in the service of their countries
humanities and society. Women have a significant role in the social political, economic and
cultural life and an indispensable part to play in the family, particularly in the rearing of children.
But patriarchal social systems of the world over have sustained bias, prejudices and
discriminations against women compelling them to bear perennial travails of disempowerment,
subjugation and oppression. It is the time to change the society, especially duty of men to bring
about a change. Every effort must be make to ensure that a girl child is treated as an integral and
equal member of family. Women must instill confidence in them to change their images
themselves. Since it is man folk who have glamorized the role of women, the change must
emanate from them. Both men and women will have to contribute to achieve these objectives. A
basic contradiction in society is that housework performed for ones own family is not counted
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as economic activity, unlike, house work performed for an employer. It is increasingly being
debted why there should be a need to distinguish between housewives and members of the labour
force (United Nations 1977; Fong 1980) estimates the value of housewives. Services in
developed countries usually suggest that they are equivalent to approximately a quarter of Gross
national Product. It is difficult to say why such a significant contribution should continue to
remain ungratified. Historically women were in sound position. The foregoing study reveals that
Vedic period was a glorious period in Indian society. Women were free to move anywhere and to
receive education. They were treated equal as men. Women participated in every sphere of the
life in ancient society. But the position of women detoriated in the post Vedic period. That was
the period of Puranas, Samrities and Epics. The code of Manu was the first written law. Manu
was considered as the father of Hindu law and he defined the limitations and conditions of
women.
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ELECTORAL REFORMS IN INDIA- PROSPECTS & CHALLENGES

SHRUTICA PANDEY
India is the biggest Democracy in the World yet we feel that because of specific reasons,
Democracy is not living up to expectations appropriately. In this way, now the researcher feels
that why this biggest Democracy is not living up to expectations appropriately? There is
something wrong in the Electoral methodology. Multi-cornered challenges have turned into a
standard in India instead of an exemption due to the increment in the quantity of more diminutive
and territorial gatherings. There have been cases in the state get together decisions where a
hopeful has been announced champ with the triumph edge of not exactly 100 votes. Separated
from this inconsistency, as a rule, a hopeful wins the race by securing only 30- 35 for every
penny of the aggregate number of votes surveyed. Thus he or she can't be esteemed to be a
decision of dominant part of the electorate. To defeat this restriction, the first-past-the-post
framework ought to be supplanted with a two-stage appointive procedure. In this, a second round
of decision will be held if none of the hopefuls in the fight has the capacity get 50 for every
penny of the aggregate number of votes surveyed in the first round. The two hopefuls who have
acquired the most extreme number of votes in the first round will battle in the second round.
Whoever between the two gets more than 51 for every penny of the aggregate votes surveyed in
the second round is pronounced the victor. Concurrent races for Union and state assemblies:
Currently 3-4 states in India try for races consistently. This undermines the working of the union
government as the administration in force can't take extreme choices because of the apprehension
of recoil in the following round of get together race. The game plan of synchronous decisions
can be reached out to the decisions for the city partnerships.
1. INTRODUCTION
If liberty and equality, as is thought by some are chiefly to be found in democracy, they will
be best attained when all persons alike share in the government to the utmost.242
- Aristotle (384 BC - 322 BC), Politics
India has the refinement of being the greatest democracy of the world. Choices are the
most basic and essential bit of legislative issues in a fair plan of organization. While legislative
National University of Study and Research in Law, Ranchi

http://www.telegraph.co.uk/culture/3673945/Famous-quotes-about-democracy.html
242
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issues are the craftsmanship and practice of overseeing political energy, choice is an approach of
legitimization of such power. Greater part leads framework can without a doubt work just upon
this certainty that races are free and sensible and not altered and controlled, that they are
effective instruments of learning unmistakable will both really and in structure and are not
immaterial functions determined to create long for qualification to mass thought, it can't get by
without free and sensible choices. The choice at present are not being hold in impeccable
conditions as an issue of the goliath measure of money required to be utilized and considerable
muscle energy needed for winning the races. While the starting three general races (1952-62) in
our country were in light of current circumstances free and sensible, a noticeable lessening in
measures began with the fourth general elections in 1967. No such events were represented till
the fourth general race. As the years progressed, Indian choosing system encounters authentic
infections. The race handle in our country is the ancestor of political corruption. The contorting
in its working appeared unprecedented for the fifth general races, 1971 besides expanded in the
dynamic races especially those held in eighties and from that point on.243 A percentage of the
competitor and gatherings take part currently elections to win them no matter what, regardless of
good values. The perfect conditions oblige that a genuine, and upright individual who is open
energetic and needs to serve the individuals, ought to have the capacity to challenge and get
chose as individuals' delegates. Yet in real actuality, such an individual as aforementioned has no
shot of either challenging or regardless winning the election.244
2. ELECTIONS IN INDIA
Elections in India incorporate complex political, mobilizational and definitive logistics that
stay unparalleled on the planet. In the May 2004 national elections, for event, there were 5435
contenders from 230 enlisted national and State-level political parties of the assessed 650 million
voters, pretty much 56%, or 380 million people, truly cast their votes. The Election Commission
used practically 3.5 million staff to direct the elections what's more a normal 2 million general
individual police and security qualities were passed on for solicitation help all through the
elections. The quick cost of game plan and organizing the choice meant to give or take $245
million. Further, in viewpoint of separated area conditions choice approaches included diverse
243
244
http://www.jstor.org/stable/40647646 .
http://opengovernanceindia.org/
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modes of transport and sending of numerous security personnel to counter dangers by instigators
to set up almost 700,000 studying corners.245
3. ISSUES IN ELECTORAL POLITICS OF INDIA
A man without a vote ... is like a man without a hand.246
The election process in India, at present is not perfect because of the huge sum of money
required to be spent and large muscle power needed for winning the elections. The major
drawbacks are hindering the path of electoral system in India are: money power, muscle power,
criminalisation of politics, poll violence, booth capturing, communalism, castism, non-serious
and independent candidates etc.247
Money Power: Electioneering is a high-priced affair in every democratic polity which
plays a more vital role in India. Money power, in our electoral system plays a destructive role
affecting the working of periodic elections very critically; it prompts all round debasement and
helps predominantly to the era of dark cash economy which controls at present our nation? A
prospective applicant in every supporter needs to use a huge number of cash towards transport,
reputation and other key things of decision crusade. Lately the decision costs have expanded past
any limits because of the craving from each political gathering to use more than their adversaries
in the conflict. The races were not as immoderate in 1952 as they have gotten to be today.
Political pioneers and labourers thought of it as exploitative to work with a longing for any prize.
However situation now has changed.248 The races in Indian commonwealth are getting to be
progressively extravagant and the crevice between the costs caused and lawfully allowed is
expanding throughout the years. The eyewitnesses are viewing the framework that requires
unfathomably gigantic consumption gathered through the questionable means by political
gatherings and their competitors. The reception of arranging and of blended economy with a lot
of control, regulation, licenses, allows and portions in free India gave colossal chances to
political debasement and brought about an unscrupulous nexus between the appointive
governmental issues and the business segment of the nation. This is by all accounts preceded
with even today with more appalling results of a flood of dark cash into the passageways of
245
www.eci.nic.in
HENRY WARD BEECHER, Proverbs from Plymouth Pulpit
247
Work done and results, Association for Democratic Reforms, 2004. www.adrindia.org
248
Debashish Mukerji, We, The People: Voters Support Supreme Court Verdict On Candidates'
Antecedents, The Week, March 30, 2003. www.the-week.com
246
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political gatherings in spite of the changed economy prompted to the political arrangement of
nation. Races in India so distant from a typical man, just those individuals can take an interest in
decisions as an issue who has a ton of cash, in light of the fact that today vote is not a mean of
popular notion. It is generally acquired.249
Democracy and violence can ill go together. Evolution of democracy is not possible if we are
not prepared to hear the other side.
-Gandhiji.
Muscle Power: Violence, pre-election and post-election intimidation, oppression, most of

the riggings of any type, booth capturing both silent and violent are mainly the products of
muscle power. These are prevalent in many parts of the country like Bihar, Western Uttar
Pradesh, Maharashtra etc. and this cancerous disease is slowly spreading to south like in Andhra
Pradesh, Criminalisation of politics and politicaliation of criminals, freely indulged in now, are
like two sides of the same coin and are mainly responsible for the manifestation of muscle power
at elections.250 By using of violence, the criminals are able to achieve success at elections for
their benefactors.
4. CRIMINALISATION OF POLITICS: CRIMINAL CANDIDATES
If we a going to spend a lot of money to deal with the problem of 200 million guns in the
country owned by 650 million gun owners, we ought to have a system which will work and catch
criminals.
-
John Dingell
Indian law does not allow those awaiting trial to vote but there is no bar on people fighting
elections from jail if not yet convicted. The Election Commission has ordered all candidates to
clearly state in an affidavit the number of cases pending against them. Close to 40 per cent of
Lok Sabha candidates belonging to the leading political parties in face criminal charges that
range from assault, extortion, rioting, attempt to murder and defamation. At least 18 people
facing serious criminal charges, including the alleged mastermind behind the leak of papers for
entrance tests to management institutes, are contesting the parliamentary elections from Bihar. A
leading newspaper, before the latest 2014 elections read as follows throwing light on one of the
major drawbacks of Indias Election Process:
Patralekha Chatterjee, Civil Society in India: A Necessary Corrective in a Representative Democracy,
Development and Cooperation, No. 6, (November/December 2001), p. 23-24.
250
Sundriyal, R. B. and Dighe, Sharde (Ed. 1997). Electoral Reforms. New Delhi: Shree Publishing House, p.122.
249
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Almost a fifth of candidates in India's upcoming elections are facing criminal charges including
rape, murder and extortion, according to research published on Wednesday. The analysis of the
records of 1,492 candidates contesting more than 120 seats in the country's 545-seat lower house
will provoke further concern about the criminalisation" of politics in the worlds biggest
democracy.251
Unpleasant evaluations propose that in any state election 20 for every penny of applicants
are drawn from criminal foundations:
Mafia wears and other compelling hoodlums have
demonstrated that they can change over their muscle power into votes frequently at weapon
point. Voters in numerous parts in the nation are compelled to vote in favour of the nearby
strongman. Tickets were given to the applicants with criminal records even by National Party.
All these examples reported over and over demonstrate that majority rule government in India
has generally neglected to be what it was intended to be on account of the constituent framework
has been debased. Our governmental issues have been defiled in light of the fact that the
degenerate and lawbreakers need to enter it252. Criminalisation of politics has become an allpervasive phenomenon. At one time politicians hired criminals to help them win elections by
booth capturing. Today, those same criminals have begun entering parliament and the state
legislature.253
The Election Commission of India issued an order on 27 March, 2003 in pursuance of the
judgment of the Supreme Court dated 13 March, 2003 in the Peoples Union for Civil Liberties &
another vs. Union of India case, that candidates for electoral office must submit an affidavit
disclosing his assets and liabilities. It has been noted by the Election Commission of India in its
report Proposed Electoral Reforms, 2004, that there have been many cases where the
candidates are alleged to have given grossly undervalued information, mainly about their assets.
This is taking the country towards a languishing state. It is not a sign of development. India is
said to be a developing country. With this attitude, that we have been noticing so far in our
251
The Guardian, Wednesday 2 April 2014 19.14 BST

Kaul Summer (2002), 'Who wants to cleaner Electoral System? Not the Politicians', Parliamentary Affairs,
August Bangalore,
253
Arvind Verma, Policing of Public Order in India, International Journal of Police Science and
Management Vol. 3 No. 3 (2001), pp. 213-225.
252
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political system will increase crimes and nothing more. This is paving way for all the illicit and
forbidden activities.254
Criminalization in politics is not very new, there were and there are many of the politicians
charged with criminal and corruption records, some of them are : Prakash Singh Badal and
Sukhbir Singh Badal chief minister and deputy Chief Minister of Punjab respectively, were being
held for cheating, possessing asset disproportionate to known sources of income. Ashok Chavan,
Chief Minister of Maharashtra, in Adarsh Housing Society scam. Suresh Kalmadi, Member of
Parliament for criminal conspiracy and cheating related to 2012 commonwealth games. M.K
Kanimozhi, Member of Parliament for 2G spectrum. Y.S Jaganmohan Reddy, Member of
Parliament for accumulating huge wealth disproportionate to his known source of income.
B.S.Yeddyurappa, former chief minister of Karnataka, held for Illegal Mining Scam. Moreover,
the 2005 elections in Bihar included 358 candidates charged with criminal acts like murder,
attempt to murder, bribery and robbery. It implies that our democracy ends the day we cast our
votes.
Misuse of Government Machinery: It is by and large whined that the administration in
force at the time of decision abuse official machinery to further the election prospects of its
gathering applicants. The abuse of authority apparatus takes distinctive structures, for example,
issue of commercials at the expense of government and open exchequer highlighting their
accomplishments, payment out of the optional stores at the transfer of the pastors, utilization of
government vehicles for soliciting and so forth. The abuse of authority hardware in the routes
specified above gives an out of line playing point to the decision party at the time of races. This
prompts abuse of open stores for encouraging the possibilities of applicants of a specific
gathering.255
Non-Serious Candidates in Political Parties: Lately there has been a consistent increment
in the quantity of competitors in elections. The quantity of applicants has swelled because of the
interest of Independents. They challenge decisions cheerfully and lose their stores. Non-serious
candidates are largely floated by serious candidates either to cut sizeable portion of votes of rival
candidates or to split the votes on caste lines or to have additional physical force at polling
254
Paul Brass, Factional Politics in an Indian State (Berkeley: University of California, 1965)
K. Subrahmanua, Top Cops Brace for Election Encounters, The Telegraph, April 5, 2004.
www.telegraphindia.com
255
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station and counting centres. The multiplicity of candidates causes inconvenience to election
authorities in the management of elections. The voters are also handicapped in identifying the
candidates of their own choice. This affects the sanctity of elections. This onslaught of nonseriousness has to be halted. 256
5. EXPENDITURE IN CONDUCTING GENERAL ELECTIONS:
The Secretariat of the Commission has an independent budget, which is finalised directly
in consultation between the Commission and the Finance Ministry of the Union Government.
The latter generally accepts the recommendations of the Commission for its budgets. The major
expenditure on actual conduct of elections is, however, reflected in the budgets of the concerned
constituent unit of the Union - State and Union Territory. If elections are being held only for the
Parliament, the expenditure is borne entirely by the Union Government while for the elections
being held only for the State Legislature, the expenditure is borne entirely by the concerned
State. In case of simultaneous elections to the Parliament and State Legislature, the expenditure
is shared equally between the Union and the State Governments. For Capital Equipment,
expenditure related to preparation for electoral rolls and the scheme for Electors' Identity Cards
too, the expenditure is shared equally. Guess, how much a Lok Sabha election can cost to the
Government? As per Ministry of Law and Justice, 2009 election cost was around 1200cr.
Conducting Lok Sabha election in states like Maharashtra & West Bengal are double time
costlier than Andra Pradesh/Tamil Nadu.257
6. ISSUES AND CHALLENGES BEFORE THE ELECTION COMMISSION:
There has been universal appreciation of the Indian electoral system. People have hailed
the manner in which elections have been conducted in India. But there are its weaknesses. It has
been seen that in spite of the efforts of Election Commission to ensure free and fair election,
there are certain shortcomings of our Electoral system and also there are some issues before
election commission of India. The role of unaccounted money in elections has become a serious
problem. The political parties collect funds from companies and business houses, and then use
this money to influence the voter to vote in their favour. The business contributions are mostly in
cash and are not unaccounted. Many other corrupt practices are also adopted during election such
Sumantra Bose, A Culture of Corruption? Democracy and Power in India, Global Policy, 2002.
www.globalpolicy.org
257
Ministry of Statistics & Programme Implementation
(MOSPI)
256
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as bribing, rigging or voters intimidation, impersonation and providing transport and

conveyance of voters to and fro the polling stations. The reports of liquor being distributed in
poor areas are frequent during election. These are some illegal practices perform by the
candidates during elections on the basis their money power.258 The dominant role of money in
elections, which is taking newer and outrageous form, is deeply worrying. Instances of
politicians paying for news coverage and bribing voters were widespread in 2009-2010 elections
and even vote for note scam is one of the biggest examples of money power. On seeing these
instances, politics seems to be the market of barter system that is note ke badle vote.259
As a result violence during elections has also increased. Though these activities does not
take place very openly but are still in progress, there are many small town where these activities
takes place before and even after the elections and there is nobody to oppose it. Generally the
candidates are given tickets by the political parties on the consideration whether the candidate
can muster the support of numerically larger castes and communities and possesses enough
resources. Even the electorates vote on the caste and communal lines. Communal loyalties of the
voters are used at the time of propaganda campaign.260 This system of caste and religion voting
showed up during various election campaigns when the candidates used to give their speeches in
favour of one religion. One of the recent examples is Varun Gandhis hatred speech toward
muslin during the election campaign. All the political parties do not have equal opportunity in
respect of access to resources. The party in power is always in advantageous position then the
opposition parties. There is widespread allegation that the party in power accomplishes misuse of
government machinery. All these features lead to violence, booth capturing, rigging bogus
voting, forcible removal of ballot papers, ballot boxes burning of vehicles, etc. which result into
loss of public faith in elections. The weaker and vulnerable sections among electors are forcibly
prohibited from voting or are made to vote against their free will. Many of the ineligible voters
find the place in electoral rolls like dead and shifted voters and even sometimes many of the non
citizens also find the place in electoral rolls. Even we found repetitions and duplications on
electoral rolls.261
258
Lloyd Rudolph and Susanne Rudolph, The Modernity of Tradition: Political Development in India
(Chicago: University of Chicago Press, 1967)
259
AT Jayanti, PM for law to keep tainted out of Cabinet, Deccan Chronicle, August 1, 2004
260
India Elections, Yahoo News-India, April 18, 2004. www.in.news.yahoo.com
261
Ramesh Thakur, India Girds For World's Biggest Tamasha, The Japan Times, April 11, 2004.
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There are sometimes mistake in the spelling the names of electors, the names of their
Father/Mother/Husband (as the case may be), date of birth, address etc. Mistakes in the spelling
of names, recording of date of birth/age and the correct recording of addresses have been some
of the major irritants as far as the electors are concerned. Because of the hitherto used old
techniques of writing the name of the elector in one language and then transliterating it into
another (English, Hindi or some regional language), problems have repeatedly arisen in correctly
spelling the names of persons or their addresses. This has dented the creditability of electoral
rolls. Another challenge associated with the management of electoral rolls in India is matching
the correct photograph with the electors details of each and every elector whose name finds a
place in the roll. Here again, because of the hitherto used old technique of keeping the electors
details and their photographs separately, mismatch in photographs used to be reported quite
often. There is no provision for making online application by the candidate which also reduces
the transparency. Citizens have no way to track the application or there is no effective
monitoring of tracking application, even most of the people or citizens of India are unaware
about their right to track application, they are not aware about whether they can ask for tracking
the application of the candidate participating in election. 262
There has been sharp disintegration in the ideological introduction of political gatherings.
Party elements in India has prompted the rise of valueless governmental issues much against the
goals of the father of the country, Mahatma Gandhi, who recommended that the Congress
gathering ought to be disbanded after the accomplishment of Independence and its parts ought to
captivate themselves in the administration of the individuals. While Gandhi taught us huge
benevolence, altruism and administration, to the individuals, such helpful qualities, the fair
standards and organizations have been demolished efficiently throughout the most recent years
of the working of the Constitution. Simultaneously, both the government officials and political
gatherings have lost their believability, a definitive esteem that ought to tie them with the
masses. There is by all accounts an emergency of character among the legislators, as the
framework does not empower the fair pioneer. Due to the falling good benchmarks both in the
general population and among the pioneers, criminalisation of governmental issues and
www.japantimes.co.jp
262
The Election Commission of India, Statistical Reports on General Elections 2004, to the 14th Lok Sabha
vol. 1. www.eci.gov.in, pp. 4-14
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politicization of culprits has turned into the standard. Because of degeneration of authority,
gatherings have been snared in force battle for the purpose of individual ends 263. In an ethical
quest for force countries, each real player is by all accounts playing a down to business
amusement. The Gandhian estimation of the soul of administration to the country has ended up
totally terminated from the present day legislative issues.264
The money and muscle forces are the essential indecencies that contaminate and debase
the procedure and persuade members to depend on mal practices in races. This prompts the
decay of good values in the coliseum of discretionary governmental issues. Radical measuresadministrative authoritative and reformatory are required to stem the root that is consuming
vitiate of the just process. An amusement can be reasonable just if the players are fair and valid
to its soul.
7. SUGGESTIONS
DIGITALISATION OF DEMOCRACY:
The urban painted scenes physical and social of mechanical social requests are
immediately changed over as we approach the new millennium .Our understanding space , time ,
the social , the political , the urban and the nation , the private and individuals all in all are
moreover significantly affected by this typhoon of advancement .To a huge degree , the
progression of interchanges and data technology is key to this change and to all the limits that
join together to make up contemporary urban groups.265
The extent that urban governmental issues are concerned, the change of urban areas into
electronic centre points for telecommunications and telematics systems has been coupled with
endeavours at the grass roots and nearby or local power levels, to present adaptations of
"electronic democracy" or computerized democracy. Computerized democracy or electronic
democracy is an idea with a relative long history. It has been a focal peculiarity of the innovative
utopias proposed by researchers, legislators and activists since the 1960s.Today, over lakhs of
urban areas, towns and towns overall access to telecommunication and internet administrations.
The city organizing perfect is connected to an arrangement of reliant innovative, financial
and infrastructural improvements that have made the turn of the century .The advancement of
263
Supra Note 2, p. 53.

http://www.jstor.org/stable/10.2979/eservicej.8.3.42 .
265
Graham and Marvin, page 26 1996 edition.
264
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expanded limit cabling and satellite telecommunications has prompted the meeting of distinctive
media (e.g. TV and telephony) and to more extension for intuitiveness .This has started the quest
for new uses for the media and telecommunication administrations. While innovative
development alone does not encourage social and political change, there are sure mechanical
improvements whereupon the talk of the approach producers is prefaced and the trusts of the
metro systems administration are established.
ONLINE BASED VOTING
In the wake of experiencing the above statics information of election use and the brutality
that happen amid elections and different troubles that go about as an obstruction in leading a
hustle free, legitimate, straightforward and responsible election. There is a need of immediate
change keeping in mind the end goal to make the election transform substantially smoother and
responsible. So we can have greatest support in elections. In the present situation , which is the
period of technology and digitalization we must settle on something that is truly most recent,
effortlessly achievable, modest and quicker .We can use online web based voting . In which each
voter will be given extraordinary secret word keeping in mind voting he needs to login into his
record and vote.
ADVANTAGES OF HAVING AN ONLINE BASED VOTING:
It will have the following benefits:
It will increase the participation.
There will be no scope of any electoral violence like booth capturing, EVM machine
tampering etc.
It will be easier for physically challenged people to vote; no longer they have to wait in long
standing queues.
It will decrease the burden of expenditure for conducting elections
It will also make it easier for people living in difficult terrains to vote.
Further it will also decrease the work load of government employee who was assigned
election duty.
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It will also safer for people to give vote, those who are living in conflict zones like
Maoist affected areas, insurgent zones etc.
The counting process will also fasten if we are adopting this technique of voting.
It will give more time period to caste vote and there will be no need of declaring holiday on
voting day.
Instantaneously election can be conducted throughout the country instead of phase wise
elections, which will save time and money.
As the votes will be counted digitally by computerization; hence there will be no scope of
human interference and error .Thus making the process much more transparent and efficient.
CHALLENGES TO ONLINE BASED VOTING AND CONCLUSION

The best way to resolve any problem in the human world is for all sides to sit down and talk.
The greatest test to this arrangement of voting is nonattendance of computer illiteracy,
telecom administrations and towers in numerous parts of the nation and further there is no force
supply in numerous towns of India. Moving further as an issue rate of Indian populace is beneath
poverty line, consequently it won't be feasible for everybody to bear the cost of web service and
more over large population of people are computer illiterate. These are a percentage of the
difficulties. In any case we can begin it in some constituency as pilot projects and after
experiments we can choose the blur of this sort of framework. Despite the fact that not presently
however some place in future we will must receive this sort of procedure to vote. For a more
secure, straightforward, responsible and less expensive election we must use the accessible
innovations. As Martin Luther King Jr has said Take the first step in faith. You don't have to see
the whole staircase, just take the first step. Lets be the change to bring the change.
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GIVING EQUAL HEIGHT TO THE THIRD PILLAR : IN THE LIGHT OF

MANEKA GANDHI CASE
SRIJA RAY & ADITI SANGHI
No legal provision has attracted more controversy than Article 21 of the Constitution of
India. Article 21 is the celebrity provision of the Indian Constitution and occupies a unique place
as a fundamental right for the people of India. Article 21 of the constitution says that: No person
shall be deprived of his life or personal liberty except according to procedure established by
law266. Prior to Maneka Gandhis decision, Article 21 guaranteed the right to life and personal
liberty to citizens only against the arbitrary action of the executive, and not from legislative
action. The state could not interfere with the liberty of citizens if it could support its action by a
valid law. The most important words in this provision are procedure established by law.
This research endeavour expounds the new interpretation of Article 21 after Maneka
Gandhis case which ushered a new era of expansion of the horizons of right to life and personal
liberty. Further, the protection of this right is burning topics of the day. Hence an attempt has
been made in this article to examine the modern day standards adopted for protecting the right to
life and personal liberty267. The article seeks to discuss the most striking aspect of the Supreme
Courts introduction of substantive due process which empowered courts to expand the limited
phraseology of the right to life under the Constitution, to include a wide range of un-enumerated
rights. The Supreme Courts judgment in Maneka Gandhi has been widely critiqued as one that
went out of bounds with reference to the facts before the court. The paper discusses the seminal
importance of the Maneka Gandhi decision when the court transformed itself from being merely
a supervisor, to being a watchdog of the Constitution. For most jurists, it was a turning point in
the Supreme Courts interpretation of Article 21. The court moved from a pedantic to a
purposive approach in construing the sweep of the right to life under the Constitution. The
judgment became a springboard for the evolution of the law relating to judicial preservation of
human rights.268
Fourth Year, Rajiv Gandhi National University of Law, Punjab, Sidhuwal, Patiala
Constitution of India, Article 21, Universal Law Publication, Pg No -14 .
267
Retrieved from http://legal-articles.deysot.com/constitutional-law/judicial-interpretation-of-article-21-ofthe-indian-constitution.html on 13-04-13 at 10:00 am
268
Zia Mody, Ten Judgments that Changed India, Shobhaa De Books, 2013, Print.
266
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INTRODUCTION
Right to life and personal liberty is the modern name for what have been traditionally
known as natural right. It is the primordial rights necessary for the development of human
personality. It is the moral right which every human being everywhere at all times ought to have
simply because of the fact that in contrast with other beings, he is rational and moral. It is the
fundamental rights which enable a man to chalk out his own life in the manner he likes best.
Right to life and personal liberty is one of the rights of the people of India preserved by the
Constitution of India, 1950 and enforced by the High Courts and Supreme Court under article
226 and 32 respectively.
Article 21 of the Constitution of India, 1950 provides that, No person shall be deprived
of his life or personal liberty except according to procedure established by law. Life in Article
21 of the Constitution is not merely the physical act of breathing. It does not connote mere
animal existence or continued drudgery through life. It has a much wider meaning which
includes right to live with human dignity, right to livelihood, right to health, right to pollution
free air, etc. Right to life is fundamental to our very existence without which we cannot live as
human being and includes all those aspects of life which go to make a man's life meaningful,
complete and worth living. It is the only article in the Constitution which has received the widest
possible interpretation. Under the canopy of Article 21 so many rights have found shelter, growth
and nourishment. Thus the bare necessities and the basic requirements are essential and
unavoidable for a person is the core concept of right to life.
A reading of Article 21 would go to show that a person may be deprived of his life or
personal liberty only in accordance with the procedure established by law. In other words, those
who are called upon to deprive other persons of their personal liberty will have to observe the
forms and rules of the law strictly and scrupulously. The expression Procedure established by
law means prescribed by law of the state. The parliament has power to change the procedure by
enacting a law by amending it and when the procedure by enacting a law by amending it and
when the procedure is so changed it becomes the procedure established by law. This leads to the
further inference that notwithstanding Article 21 it is open to challenge the constitutionality of
the law which deprives a person of his life or personal liberty on various grounds like the law
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having not been enacted by competent legislature (A.K.Gopalans case); that the law suffers
from the vice of excessive delegation (Makhan Singhs case AIR 1964 SC 381).
At this stage, the position prior to 1978 has to be referred to in order to understand the
path travelled. It is hard to appreciate fully the extent of development of right to life without an
overview of the traditional approach. In A. K. Gopalan v Union of India269, the traditional
interpretation of Article 21 of the Constitution was that a procedure established by law can
deprive a person of his right to life. Thus, the earliest understanding of this provision was a
narrow and procedural one. The state had to demonstrate the interference with the individuals
right to life is accorded with the procedure laid down by properly enacted law. It didnt matter
whether the law was just & fair. . The interpretation as made by the Court was nothing more than
the freedom from arrest and detention, from false imprisonment or wrongful confinement of the
physical body. Thus, personal liberty said to mean only liberty relating to person or body of
individual and in this sense it was the antithesis of physical restraint or coercion.
Procedure Established By Law - It means that a law that is duly enacted by legislature or
the concerned body is valid if it has followed the correct procedure. Say a law enacted by Indian
legislature. Article 21 of Indian Constitution says that- No person shall be deprived of his life or
personal liberty except according to procedure established by law. In India, there is no mention
of the word 'Due Process'. A strict literal interpretation of Procedure established by Law give the
legislative authority an upper hand and they may enact laws which may not be fair from a liberal
perspective.270
The case of Maneka Gandhi v. Union271 is considered to be a landmark case that is
known to widen the scope of Article 21 and emphasised the importance of procedure established
by law that was missing in the period before the case and the same had led to a number of
injustices suffered by the people.
This case reflects the liberal attitude of the Supreme Court while interpreting the
Fundamental Rights in the post- emergency period, especially after a widespread injustice
suffered by the people during the Emergency period from 1975-77. Another important aspect of
269
[1950] AIR SC 27
M.P. Jain, Indian Constitutional Law, LexisNexis, Butterworths Nagpur, 8th Edition, 2008, reprint.
271
Maneka Gandhi v. Union of India, (1978) 1 SCC 248
270
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this case is that the judgement of A.K. Gopalan272 case was not followed in this case. The
judgement of this had given the legislature, wide discretionary powers so as to determine the
procedure to infringe upon a persons personal liberty and the procedural safeguards to be
enjoyed by him. However, with the passage of time, the premise held in the Gopalan case was
overruled in a number of cases like the Bank Nationalisation case273 and the most significant one
being the Maneka Gandhi case.
BRIEF FACTS AND JUDGMENT OF THE CASE
The brief facts of the case were that the petitioner Maneka Gandhi was informed in July
1977, that her passport had been impounded through an order dated July 2, 1977 by the Passport
Authority of India. Section 10(3) (c) of the Passport Act, authorises the passport authority to
impound a passport if it is seen necessary in the interests of sovereignty, integrity, unity and
security of the country. When the petitioner inquired for the reasons for such impounding of her
passport, she was informed that the reasons for the same cannot be furnished to her in public
interest as decided by the central government. Maneka Gandhi challenged the order impounding
her passport and filed a writ petition alleging infringement of her fundamental rights under
Article 21 of the Constitution. The major ground of challenging the order was that the petitioner
alleged that she was not provided a chance to defend herself before passing of the order to
impound the passport.
Another grounds on which the petition was entertained in the Supreme Court were that
section 10(3)(c) of the Passport Acts, 1967 was said to be violative of Article 14 because of the
ambiguous and undefined power conferred by it on the Passport authority. Another important
ground on which the writ petition was entertained was that Section 10(3) (c) did not provide for
any procedure within the meaning of Article 21 and so is violative of the said article.
Initially, the passport authority, by virtue of power conferred under Section 10(5) of the
Act, denied providing reason which deemed such action necessary in public interest. But later on
during the proceedings of the case, the reason was disclosed in the counter affidavit filed by the
Government of India. The reason given by the government was that the passport of the petitioner
had been impounded because it was likely that the petitioner would be required to be present
before a Commission of Inquiry. To such disclosure, the Court said that this reason could have
272
273
A.K. Gopalan v. State of Madras, AIR 1950,SC 27.

R.C. Cooper v. Union of India, AIR 1970 SC 564
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been disclosed to the petitioner when she enquired for the same and remarked that the
discretionary power to refrain from disclosing the reason of impounding the passport should be
used sparingly and judiciously.
The case was decided on 25th January, 1978 by a seven judge bench. The judges were M.
Hameedullah Beg, C.J., N. L. Untwalia, P. N. Bhagwati, P. S. Kailasam, S. Murtaza Fazal Ali,
V. R. Krishna Iyer and Y. V. Chandrachud, JJ. In this case the leading opinion was pronounced
by Justice Bhagwati and the dissenting opinion was given by Justice Kailasam.
In the judgment of this case, the Court laid down a number of propositions which sought
to widen the ambit of Article 21 and emphasize on procedure established by law. While giving
the judgment of the case, Justice Bhagwati referred to some of the previous judgments of
importance with regard to personal liberty. The case of Satwant Singh Sawhney v. D.
Ramarathnam, Assistant Passport Officer, Government of India, New Delhi and Ors.274 In this
case, the court held that the right to passport is included in personal liberty and so in the Article
21. It also laid down that as right to passport was seen to be included in personal liberty of a
person, so the concerned authorities must act according to proper procedure established by law.
Though, Justice Bhagwati did not find any procedure for impounding of passport in the said Act,
he held that even if a procedure is not laid down specifically, the rules of natural justice should
have been followed by the executive. It violated the audi alteram partem rule of natural justice
by not giving the petitioner the opportunity to be heard before impounding her passport.
Justice Krishna Iyer in this case has given important contribution while concurring with
the judgement of Justice Bhagwati. He has used Maneka Gandhis case to enrich and enlarge
Article 21 in post Maneka cases on personal liberty.275 In his opinion he said that no person can
be deprived of his right to travel abroad unless in accordance with the procedure established by
law. He said that personal liberty makes for the worth of the human person and travel makes
liberty worthwhile276. He agreed with the dissenting opinion given by Justice Fazl Ali in the
A.K. Gopalan case who said that procedure in Art. 21 imply fair and reasonable procedure and
274
AIR 1967 SC 1836

Patel, Thrithy. Personal Liberty under the Constituion of India. New Delhi : Jain Publishers, 1995. p38..Print
276
MANU/SC/0133/1978 Para 116
275
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not just a formal procedure. It is the dissent of Fazl Ali which is vindicated in the law
subsequently developed by the Supreme Court culminating in Maneka277.
Chief Justice Beg in his judgment said that we must look for and find procedural
safeguards to ensure that the power will not be used for purposes extraneous to the grant of the
power before we uphold the validity of the power conferred 278.In this case preferred to quash the
orders of the passport authority as he held that in the ordinary course, the opportunity to be heard
should be given before impounding the passport.
Justice Kailasam in his dissenting opinion laid down that statute law is implied in the
procedure established by law in Article 21 and as the procedure can be changed by the
legislature, it can be modified and so the procedure envisaged in the Criminal Procedure Code
cannot be emphasized upon. If a statutory provision either specifically or by necessary
implication excludes the application of any rules of natural justice then the court cannot ignore
the mandate of the legislature or the statutory authority and read into the concerned provision the
principles of natural justice279He also refused to agree to the proposition that any fundamental
right can have an extra- territorial operation.
The Supreme Court in its final order held that due to the undertaking given by Attorney
General of India that the opportunity to be heard would be given to Maneka Gandhi, it would not
interfere with the impugned order. It also held that any order passed under Section 10(3) of the
Act would be subject to the scrutiny of High Court and Supreme Court. So the Writ petition was
disposed without passing any formal order and it was ordered that the passport will remain in the
custody of the Registrar of the Court until further orders.
CRITICAL ANALYSIS
The judgement of the Maneka Gandhi case is seen as one of the landmark decisions with
respect to fundamental rights. It is often said that the great judicial transformation towards
safeguarding the personal liberty has been the result of the judgement of this case. Although the
issue of Article 21 was not one of the key issues discussed in this case, it was one of the
contentions of the petitioner which brought into discussion the ambit and scope of the said
article. The said contention was that - One ground was that Section 10(3)(c) is ultra vires Article
277
Jain, M.P. Indian Constitutional Law. Nagpur: Lexis Nexis, 2012. p.1185. Print.
MANU/SC/0133/1978 Para 116 Para 27
279
MANU/SC/0133/1978 Para 116 Para 225
278
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21 since it provides for impounding of passport without any procedure as required by that
Article, or, in any event, even if it could be said that there is some procedure prescribed under
the passport Act, 1967, it is wholly arbitrary and unreasonable280. Another important aspect of
this case was that it did not treat Article 14, 19 and 21 as mutually exclusive of each other as laid
down in the case of A.K. Gopalan v. State of Madras, the reasoning given for such theory was
that the rights do not overlap each other and that each article enacted a code relating to the
protection of distinct rights. However, this view of the Gopalan case was overruled in the R.C.
Cooper case281, in which Justice Shah spoke on behalf of majority. He held that- in our
judgment, the assumption in A. K. Gopalan's case that certain articles in the Constitution
exclusively deal with specific matters cannot be accepted as correct 282. So it was in the Cooper
case that the ruling laid down in the Gopalan case was overruled. Though in Cooper's case the
main issue was the inter-relationship of Article 19 and Article 31, however the basic approach to
construing the fundamental rights guaranteed in the different provisions of the Constitution that
were adopted in this case held the major premise of the majority in Gopalan's case to be
incorrect.
In the case of Maneka Gandhi, the judges pointed out that the reach and ambit of the
fundamental rights should be expanded by the judiciary instead of attenuating their meaning by
way of judicial construction. The Court also accepted the fact in its majority opinion that the
action of the Central Govt was arbitrary and unreasonable to the extent that it did not give the
opportunity to the holder of the passport to be heard for before passing the order.
So to conclude, it can be said that even though the case of Maneka Gandhi did not
expressly overrule the propositions laid down in the Gopalan case, it did follow the propositions
laid down in the Cooper case and so in effect it did give a contradictory opinion to the Gopalan
Case. Also, the scope of Article 21 and the importance of procedure established by law has been
discussed in the case and the emphasis on the procedure established by law to reasonable and just
instead of being arbitrary, fanciful and oppressive is well reflected in the majority opinion, for
instance from the references in this respect made to cases of Satwant Singh case, Kharak Singh
case etc. So the Court conveyed in its majority view that procedure established by law should be
280
MANU/SC/0133/1978 Para 50
R.C. Cooper v. Union of India, AIR 1970 SC 564
282
MANU/SC/0133/1978 Para 54
281
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followed and that the said procedure should not be arbitrary and oppressive and so violative of
the fundamental rights of the people.
IMPACT OF THE CASE
The case of Maneka Gandhi v. Union of India affected the Constitutional law in many
ways, some of the most significant changes were that the American concept of due process of
law has found place in the new interpretation of Article 21 and it became source of various
procedural safeguards and substantive rights to the people. The change in the scope of Article 21
has been described by the Court as after the judgement of Gopalan case was overruled in the
R.C. Cooper case, its principle was applied in the Maneka Gandhi case and so Article 21 was
freed from the restrictive meaning placed in the Gopalan case and subsequently, by a number of
decisions after this case, the scope of Article increased to a great extent.
The case of Maneka Gandhi brought the Fundamental Right of Life and Liberty into
prominence; it is now regarded as the heart of Fundamental Rights.283 The court has clearly
established that the procedure established by law as referred by the Article must conform to the
test of reasonableness and accordingly, this has led to a great influence on the criminal justice
and prison administration as well in order to harmonize all their aspects.
Another significant change that took place in the post Maneka Gandhi case era is in the
area of prison administration. The courts have criticized the cruelty of the administration and
tried to humanize them through a number of directions. Thus it can be concluded that the case of
Maneka Gandhi v. Union of India was a landmark judgment as it not only ensured that further
injustices should not be inflicted due to the restrictive scope of Article 21, but also brought about
important reforms in the criminal justice system, prison administration and gave rise to a number
of procedural safeguards to ensure justice and betterment of the administration and the society.
The codification of the process of law has multiple origins which include customs, practices,
enshrined ideals, cherished moral and ethical values and finally, precedents. The freedom
struggle has led to the creation of the charters acknowledging human rights and policies of
governance which were later made into legally binding statutes.284
283
Jain, M.P. Indian Constitutional Law. Nagpur: Lexis Nexis, 2012. p.1188. Print.
Retrieved from http://wiki.answers.com/Q/What_is_the_origin_of_due_process_of_law on 10/04/2015 at 10:30
am
284
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Due Process is the legal requirement that the state must respect all of the legal
rights that are owed to a person and laws that states enact must confirm to the laws of the land
like - fairness, fundamental rights, liberty etc. It also gives the judiciary to access the fundamental
fairness, justice, and liberty of any legislation.285 The difference between due process of law and
procedure established by law is that under the American system, a law must satisfy the criteria
of a liberal democracy. In India procedure established by law, on the other hand, means a law
duly enacted is valid even if it's contrary to principles of justice and equity. 286
However, in India a liberal interpretation is made by judiciary after 1978 and it has tried
to make the term Procedure established by law as synonymous with Due process when it
comes to protect individual rights. In Maneka Gandhi v Union of India case (1978) SC held that 'Procedure established by law' within the meaning of article 21 must be right and just and fair
and not arbitrary, fanciful or oppressive otherwise, it would be no procedure at all and the
requirement of Article 21 would not be satisfied. Thus, the procedure established by law has
acquired the same significance in India as the due process of law clause in America.287
JUDICIAL INTERPRETATION- SHIFT FROM STATUTORY INTERPRETATION TO
DUE PROCESS OF LAW
The scope of Article 21 was a bit narrow till 50s as it was held by the Apex Court in A.K.
Gopalans case288 that the contents and subject matter of Article 21 and 19 (1) (d) are not
identical and they proceed on total principles. In this case the word deprivation was construed in
a narrow sense and it was held that the deprivation does not restrict upon the right to move freely
which came under Article 19 (1) (d). at that time Gopalans case was the leading case in respect
of Article 21 along with some other Articles of the Constitution, but post Gopalan case the
scenario in respect of scope of Article 21 has been expanded or modified gradually through
different decisions of the Apex Court and it was held that interference with the freedom of a
person at home or restriction imposed on a person while in jail would require authority of law.
Whether the reasonableness of a penal law can be examined with reference to Article 19, was the
point in issue after A.K. Gopalans case289 the case of Maneka Gandhi v. Union of India,290 the
285
Retrieved from http://www.legalserviceindia.com/articles/art222.htm on 10/04/2015 at 20:00 pm

Ibid
287
Retrieved from http://www.jurlandia.org/dueprocess.htm on 10/04/2015 at 21:34 pm
288
A.K. Gopalan Vs. State Of Madras AIR, 1950 SC 27
289
Ibid
286
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Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary,
unfair or unreasonable one. Article 21 imposed a restriction upon the state where it prescribed a
procedure for depriving a person of his life or personal liberty.
CONCLUSION
The decisive shift of Judiciary in interpreting procedure established by law in the case of
Maneka Gandhi v. Union of India, overruling the previous decision taken by the apex court in
case of A. K. Gopalan v. State of Madras is totally based on the political situations of the
Country at that time.
The recent judgment of the Supreme Court in the SAIL case and BALCO case it has
been held that the Court does not has power to interpret the law passed by the Parliament. It shall
abide by whatever law the Parliament has formed. Court has to keep alive the limitations i.e., the
Parliament is supreme and it has to adhere to them. Thus in the current scenario we see that the
Court has again gone back to the Strict positivist approach taken in A.K Gopalans case.291
Regarding natural justice and fair play, the contemporary scenario is highly confused.
While Supreme Court in Maneka Gandhi Case equated natural justice with fair play, later
judgments have substantially deviated from this without expressing reasons for the same, and
have even held that fair play applies when natural justice is excluded. It can be said that it is
incorrect to attribute this understanding of the term fair play to Maneka Gandhi Case, though
the effect of such an understanding is not unwelcome. Therefore in conclusion it might be said
that Judiciary has deviated from its own stand taken in Maneka Gandhi case in a substantial
number of cases.
290
291
Maneka Gandhi v. Union of India, (1978) 1 SCC 248

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CANONS OF CONSTRUCTION: A DISCUSSION ON THE DIVERSE

CONSTITUTIONAL INTERPRETATION METHODOLOGIES
SRIMOYEE BISWAS
What is a moderate interpretation of the text? Halfway between what it really means and what
you'd like it to mean?
- Justice Antonin Scalia
This paper is an overview of the different methods of constitutional interpretation. There
are several factors that contribute to the interpretation by the court. Every country has its
constitutional identity that reflects its historical beliefs and current trends. With the felt
necessities of time that discuss the circumstances when certain laws are indeterminate which
push the judges to construe legal documents with respect to moral or policy grounds and also
respect the values and principles of the constitution. Even if the laws are determinate the
discretion of the judges cannot be overlook, as judges may end up acting under the influence of
their own beliefs and principles.The paper further describes the necessary evil of judicial
discretion and the impact on the judiciary systems under scanner, i.e. US and India. Famous
cases have been examined to show the difference it created in the interpretation while other
methods could have drastically different outcomes. It is concluded that to abate destructive
judgments there must be harmonious construction or the proportionality test that will ensure
effective use of constitutional interpretation tools.
1. The Court and Constitutional Interpretation
What is a constitution?
At the grass root level we can interpret the constitution as the product of a social
contract. This theory has been propounded by Kant. According to him, this confers legitimacy
to the constitution. The social contract determines the parties to the contract (constitution) and
the rights and duties agreed upon.292 The opening words of the US or Indian Constitution- We
the People describes the citizens individually as well as the nation represented through the
constitution. Unlike a simple contract, parties of the social contract eventually merge to form the
crux of the constitution. The Constitution of a nation consists of a set of fundamental principles
4th Year, OP Jindal Global University, Sonipat.

MICHEL ROSENFELD, THE IDENTITY OF THE CONSTITUTIONAL SUBJECT 19 (2010).
292
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and rights according to which it must function and regulate its activities. The dilemma is that
these are not simple constitutive rules. Rather, the framers actually end up drafting a charter of
rights and liberties (E.g. - United States Bill of Rights). They can draft specific provisions,
which however run the risk of being reduced to dust with modern times. Or they can write
general provisions which leave a scope of expansion and discussion. This will enable substantial
discretion of the authority who are the judges. The Court, inclusive of these judges, is charged
with ensuring the people the promise of equal justice and fairness under law. Thereby it
automatically functions as the guardian and interpreter of the Constitution. For example, the US
Supreme Court in a famous case held that the judiciary was the ultimate interpreter of the
constitution.293 The very nature of this document is such that constitutional interpretation
becomes inevitable to decipher the multiple layers beneath the pages consisting the explicit
textual references.
Why is it essential to have a technique for interpretation?
The highest authority or the Supreme Courts ruling on any constitutional matter is final
and binding. We know that different constitutions have their specific provisions which might be
vague and ambiguous. To interpret the essence, it is necessary to first know the art of correct
judicial interpretation and constitutional construction. However we also know that the
constitution is not a constant document and subject to being amended, revised or reformed.294
Even new legislations may be passed to alter the law.. Thus the interpretation of these changes
becomes important to balance the intent of the founders with the changing times. There are
various schools of thought that are followed worldwide while interpreting the constitution. The
reasons for these variations constitute a vital portion of this paper as we continue further.
Interpretive Methods at a glance: A few question might be important to ask before we
proceed with interpretation. What are the inherent benefits of each type of interpretive method?
What are the consequential drawbacks to each type of interpretive method? Should courts follow
only one type of interpretive method?
There are many methods that have been adopted over the years with modifications every
now and then. Some of the interpretations are- historical, textual, structural, doctrinal, ethical,
prudential, pragmatic etc. To provide a brief glimpse of some we see that a textualist is a person
293
294
UNITED STATES V. NIXON, 418 U.S. 683 (1974).

Id. at 209.
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who gives more importance to the text and structure of the constitution. On the other hand a
structuralist pays attention to the unique structures specified in the constitution. Judges can
display their interpretative capabilities and discretion within these limits and be careful enough
to not unnecessarily insert unwritten principles to completely change the legal system. For
example, in Canada the distinction between interpreting principles and creating tem is still valid
if the creation of unwritten principles is based on a textual anchor. 295 Radical changes may be
allowed when there is a dire need to strike a balance between the black letter of law and the art of
interpreting in a simplified manner to make it more meaningful, without tampering with the
overall intention behind the laws.
2. THE CONSTITUTIONAL IDENTITY: RESULT OF INTERPRETATIONS
An essential aspect before we fathom the implications of various methods of interpretations, is to
recognise the changing identities often lent to the constitutions during the process of
interpretations. Post the inception of a constitution, an identity is slowly carved out for it. It is
however contingent upon various factors. A constitutions identity is the hidden element of a
constitution, not mentioned in unambiguous words yet into existence for years. Either it remains
the same over the years or is subject to changes without losing its inherent characteristics.
According to Gary Jacobsohn, constitutional identity of a nation depends on how it deals with
the disharmonic situations. Pre and post disharmonic activities people change, contradictory to
constitutional self. This applies to constitutions too which can be the tensions within a
constitutional order or tensions between them and the society it rules. Its dynamic nature imparts
the changeability, but it also makes it resistant to its own destruction. This gives rise to a
constitutional identity which emerges from the interplay of inevitably disharmonic elements.296
Therefore, a society acquires an identity through experience, that this identity exists neither as a
discrete object of invention nor as a heavily encrusted essence embedded in a societys culture,
requiring only to be discovered.297 Although various scholars have defined this concept keeping
in mind different factors, the definition by Jacobsohn is best to draw a connection between
interpretation and its effect on structuring a constitutions identity. The following case studies
295
DAWN OLIVER & CARLO FUSARO, HOW CONSTITUTIONS CHANGE 34 (2011).

GARY JEFFREY JACOBSOHN, THE DISHARMONIC CONSTITUTION 7 (2010).
297
GARY JEFFRY JACOBSOHN, CONSTITUTIONAL IDENTITY 7 (2010).
296
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will help to emphasize in detail and give an overview to different methods of interpretation
explaining their stance:United States
The US is a clear legalist. The Supreme Court interprets constitutional provisions relying
on precedents. It begins with the constitutional text and interpretation is in the context of related
provisions and the political theory that is discovered in the text only. The problem of translation
occurs when something that may have been perfectly acceptable in the founding era can turn out
to be absurd in the present day society, and that the people in the founding era may not have
meant things that translate into absurdity in the present society. This in my view, points out a
glaring problem with the school of originalism. David Strauss pointed out problems with strict
originalism as the original meaning of constitutional provisions cannot be applied in todays
technologically advanced world. This holds true in cases relating to search and seizure.298
One of the strands of originalism discussed by Strauss called Moderate Originalism. It is
however very abstract as it can be used as a tool to justify anything by reasoning that the
underlying principle for which the provision was enacted has been fulfilled. Simultaneously,
specific outcomes may be ignored. He explained this in the context of the Kansas case 299, as to
whether the fourteenth amendment was originally meant to forbid school segregation was
unclear and the underlying principle was that of ensuring racial equality. Thus moderate
originalism cannot elucidate on such questions of interpretation, similar to how it left the
fourteenth amendment issue unaddressed in the case discussed above.
India
There are mainly the doctrines that have been occasionally adopted to decide cases in
these years post-independence. They are the doctrines of- original intent, pith and substance
strict necessity, saving construction, original package, and occupied field.300 India initially opted
for British style of interpretation in the 19th century. Indias initial years after independence saw
it adopt the British approach of positivism. In the Kesvananda case, the Court employed the
basic structure doctrine strategy301 close to Germanys interpretative strategy of safeguarding the
integrity of Basic Laws legislative history and the founders purposes. However, the Indian
298
DAVID A. STRAUSS, THE LIVING CONSTITUTION, 2010

BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954)
300
HAMID KHAN & MUHAMMAD WAQARRANA, COMPARATIVE CONSTITUTIONAL LAW (2008)
301
KESAVANANDABHARATI AND ORS. V. STATE OF KERALA AND ANR., AIR 1973 SC 1461
299
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judiciary has over-arching powers and has indulged in judicial activism in Vishaka and Ors. v.
State of Rajasthan.302 This case has provided as a victory of justice.
Originalism can be a very dangerous tool at times. Let us view the 1978 decision of
Maneka Gandhi v. Union of India, perhaps the most celebrated decision of the Supreme Court of
India. The Bench held that various provisions of Part III of the Constitution of India confering
fundamental rights were always meant to be read together and in harmony with each other,
completely rejecting and overruling the ratio of the 1951 decision of A.K. Gopalan v. State of
Madrasthat each article of Part III is a provision by itself and should not be read together with
other articles.
3. FELT NECESSITIES OF TIME
According to Jeffrey Goldsworth judges more often than not have to shed their
methodologies and decide in such a way that it is in consonance with the contemporary days.
Both Canada and Australia apply the British method of statutory interpretation. But there might
arise a situation where for one country may interpret national powers narrowly whereas the other
interprets it broadly during the same time. What is the justification of such behaviour then? 303
The reasons and ways of adjusting methodologies with existing crisis prevalent in society is what
will constitute the latter half of this paper.
There are two issues that should be addressed with regard to the above question. First,
certain laws are indeterminate which push the judges to step into the picture and construe any
legal document with respect to moral or policy grounds. Second, even if the laws are determinate
the discretion of the judges becomes difficult to overlook, who may end up acting under the
influence of their own beliefs and principles.304 Addressing the first issue, there is no determinate
interpretative method. Some laws are so indeterminate that some amount of tweaking is
necessary to reach the desired decisions or like they say, do the jobs. In the process, judges
deviate from the bare text. But they suffer from a mental conflict between their moral duty to
uphold the spirit of the law and the text of the law which suggests otherwise. As a result, even if
the method of interpretation used is same, the result reached is different from place to place (with
reference to the Canada-Australia example discussed above).
302
AIR 1997 SC 3011.

Id.
304
Id.
303
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Coming to the issue of discretion of judges, disaster management needs to be done

wherein it becomes absolutely essential to let go of legalism. That method should be adopted
which decides in favour of unwritten principles. Indian and US Constitutional case
interpretations display the wide variety of power exercised by the judiciary for various reasons.
There are many plausible reasons for such behaviour. The judiciary might want to adhere to the
changing systems and indulge in judicial populism. At other instances, action might be taken to
prevent excessive passing of amendments that appear to threaten the basic structure of the
constitution. This may happen while diverging from values inherent in that society.
Judges are sometimes confronted with the fear of encroachment in their own sphere. This
may occur through the external and internal sources. Example for external disturbance may be an
action of violence by the Maoists thereby disrupting judicial proceedings. An internal reason
may be actions or legislations passed by the legislative and executive, deliberately limiting the
powers of judiciary. Judicial independence is minimised or regulated that in turn threaten the
validity of constitutional values. In order to uphold their supremacy, they interpret documents in
such a way that it suits the interest of the judiciary. The following practical examples in the
dynamic countries of India and US will make these contentions clearer.
India
As discussed initially, constitutions are living and organic instruments. This is due to the
need to keep pace with changing times. The methods to bring the transformation in Indias
constitution are the following1. Formal amendments
2. Legislation
3. Judicial interpretation
4. Conventions
5. International laws
Amendments in India ever since the birth of the constitution has been plenty compared to
the US. The procedure for amendment making is less complex and completely empowers the
Parliament in this aspect. However, the main concern is whether constitutional courts have a
right to strike down constitutional amendments if the Basic Structure is shaken, which is
fundamental in moulding the states identity. This question is arisen in the context of
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constitutional interpretation as well as adherence to values and principles of the nation.

Kesavananda Bhartis landmark judgment brought about a turning point in Indian case laws. It
still acts as a leading authority covering many controversial fields of law. The controversial
judgment of Golaknath got overruled in this case. The majority decided that the Parliament has
powers to amend the constitution after the twenty fourth amendment, Article 368. But this power
is not unfettered power that it disrupts the basic structure of the constitution. In a circumstance of
abuse, the amendments are liable to undergo judicial review. We know that basic structure
doctrine is the reiterative aspect of constitutionalism. The court in this case introduced the
concept of inviolability of the Basic Structure of the Constitution from the amendatory power of
the Parliament. This was a displacement of the sovereign power of the Parliament whereas
Golaknath305 was the genesis of such constitutionalism.
Chief Justice Sikri noted down the following that could be considered to be part of the
basic structure1) Supremacy of the constitution
2) Republican and democratic form of government
3) Secular character
4) Separation of powers
5) Federal character of constitution
He also added that dignity and freedom of the individual is also of supreme importance,
this cannot by any form of Amendment be destroyed.306 Post this however, the authorities
needed to strike a balance between competing demands of transformation and preservation in
constitutional evolution arises. This case was briefly followed by the Prime Ministers election
case fiasco preceded by a trail of absurd amendments. It decided that any amendment radically
changing the constitutions identity would be held invalid. Even the famous case of Minerva
Mills mentioned that the constitution is a precious heritage: as a result of which it cannot destroy
its identity. 307
305
GOLAKNATH V. STATE OF PUNJAB (1967 AIR 1643, 1967 SCR (2) 762)
KESAVANANDABHARATI AND ORS. V. STATE OF KERALA AND ANR., AIR 1973 SC1461.
307
MINERVA MILLS LTD. AND ORS. V. UNION OF INDIA AND ORS., AIR 1980 SC 1789.
306
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United States
As per common perception, we know that the amendment making process in the United
States is strictly regulated and a century hence, only thirty three amendments have been passed
following the tedious procedure. But apart from the formal method, US too has had ways of
bringing about changes through case laws. Marbury v. Madison308 has been the first of its kind to
decide that the Supreme Court has judicial review jurisdiction over the acts of the Congress.309
The era of New Deal cases brought about amendment like changes. They targeted the
Governments power to regulate the economy while dealing with the nations finances. The aim
was to promote general welfare through government policies and expenditure. Secondly a wave
of judicial populism was brought about when cases were decided which mandated the State to
comply with most provisions of the Bill of Rights.310 The case of Brown v. Board decided
against racial segregation. Decisions respecting the right to privacy were also passed in
abundance. For example: Griswold v. Connecticut311 cancelled the ban on use of contraception
as the subject matter does not require the state to act as a moral police. Similarly Lawrence v.
Texas312 was decided in favour of homosexuals which was a sphere that had always been
encroached upon by the state and never given its due privacy. Even originalists struggled to
oppose it. If the judiciary did not decide so, there would be severe criticism of the legal system of
the nation. Moreover a democracy of rights followed these cases with statutes like Civil Rights
Act etc. being passed in public. Hence, there are a great number of issues with the application of
the originalists and this requires a departure from this approach. It further necessitates additional
deliberation into approaches such as the common law approach propounded by Strauss, thus
accepting a Living Constitution.313
4. THE NECESSARY EVIL OF JUDICIAL DISCRETION
Many creative decisions taken to protect the principles, which are valued by judges, may
in effect not be progressive. This is because there is a knack to get swayed by the social status
they personally belong to in the society. Resultantly, they tend to neglect the greater cause by
308
5 U.S. 137 (1803).

DAWN OLIVER & CARLO FUSARO, HOW CONSTITUTIONS CHANGE 4 (2011).
310
Id at 363.
311
381 U.S. 479 (1965).
312
539 U.S. 558 (2003).
313
Supra note at 9.
309
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deliberately ignoring progressive law making. E.g. Indian Supreme Court tried to limit the
legislatures efforts in bringing about redistribution of property.
This calls for judicial restraint. American jurist Oliver Wendell Holmes strongly supported
this belief and urged his peers to exercise it. He believed their personal opinions should not be
instrumental in formulating judgments. The life of the law has not been logic; it has been
experience. The felt necessities of the time, the prevalent moral and political theories, institutions
of public policy, avowed or unconscious, even the prejudices which judges share with their
fellow men, have had a good deal more to do than the syllogism in determining the rules by
which men should be governed. The law embodies the story of a nation's development through
many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a
book of mathematics.314
Judicial restraint can be understood in the Indian context. India, like most countries,
punished homosexual activities under Section 377 of the Indian Penal Code. The Naz Foundation
case decided in 2009 was a ray of hope for the LGBT community. But on appeal, the Supreme
Court reinstated the impugned section thereby creating a huge uproar. Even though the court
apparently is against judicial restraint, the language of the judgment almost seems to suggest
personal prejudice against the subject matter. An excerpt is provided belowHowever, keeping in mind the importance of separation of powers and out of a sense of
deference to the value of democracy that parliamentary acts embody, self-restraint has been
exercised by the judiciary when dealing with challenges to the constitutionality of laws. This
form of restraint has manifested itself in the principle of presumption of constitutionality.315
In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377
IPC violates the right to privacy, autonomy and dignity, the High Court has extensively relied
upon the judgments of other jurisdictions. Though these judgments shed considerable light on
various aspects of this right and are informative in relation to the plight of sexual minorities, we
feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted
by the Indian legislature316
314
OLIVER WENDELL HOLMES, THE COMMON LAW (1909).

AIR 2014 SC 563.
316
Id.
315
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If their personal opinions were given weightage then reaching a unanimous conclusion in
any case would be most ineffective and time taking. Laws would be interpreted in such a way
that some would go out of their limit to support the cause whereas others would manipulate the
judgment owing to their personal prejudice.
CONCLUSION
Constitution is associated with continuity which is not necessarily transformation as
discussed through the concept of a basic structure attributable to a constitution. Disharmony is a
precondition for change, and efforts to reduce to defend it reveals that constitutional identity is
therefore not a static or fixed thing.317 Even with the definite set of principles, if the opinions of
judges tend to sway and differentiate, it could lead to a graver outcome to the detriments of the
contemporary times and show regressive pronouncements. Therefore, it has become important
that each case be treated with a unique approach for each context. There are various functional
explanations of recent developments regarding the method of constitutional interpretation in
most legal systems universally. Another alternative could also be the Proportionality test. The
core of proportionality is the balancing cum weighing function performed by the courts. The
principle concerns of a constitution are usually addressed though a judicial review. It is useful for
determining whether means to the ends are intrusive to fundamental rights or not. All the actions,
values, principles are to be weighed together. Proportionality positions judges vis--vis the
parties and the parties in relation to one another differently from other constitutional methods.
This paper concludes with an open end question. It remains to be decided which method is most
suitable and whether following any method actually binds the judiciary from moderating
decisions during pressing times.
317
GARY JEFFRY JACOBSOHN, CONSTITUTIONAL IDENTITY 89 (2010).
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POLICY ANALYSIS OF THE TELANGANA GOVERNMENTS

MANIFESTO.
SWAPNIL TRIPATHI
The year 2014 witnessed the bifurcation of the state of Andhra Pradesh into Telangana and
residuary Andhra Pradesh after days of protest.318 On 1st March 2014, the president signed and
gave his assent to the Andhra Pradesh Reorganization Act, 2014 thereby consenting to such
bifurcation.319Before the said bifurcation, the Telangana government had promised 12%
reservation each to the Muslims and Schedule Tribes of its State.320 Keeping its electoral promise
alive, the government after coming to power formulated a committee to look into implementation
of the said reservation. However, providing for such a reservation would have crossed the 50%
reservation cap which is prevalent in the country. Therefore, the Chief Minister stated that the
State would adopt the Tamil Nadu and Karnataka model to implement the reservation. Further,
he cited Tamil Nadus example to show that Telangana should be permitted to cross the 50%
ceiling.321 Chief Ministers daughter and Telangana RashtriyaSamithi leader, K Kavitha, stated
that the people of Seemandhra will be asked to leave the state, so as to create jobs for the people
of Telangana.322Further, Telangana government declared that only students whose families were
natives of Telangana prior to 1956 will be eligible to avail fee reimbursement and scholarships
for professional courses from this year. Such policy of the government here is being brought
into analysis. This paper aims to deal with the following questions of law,
(a) Whether the Muslims of Telangana fall under the category of other backward classes and
can be granted reservation?
1st Year,National Law University, Jodhpur

Government decides to split Andhra Pradesh, (Jan. 15, 2015, 6:15:49 PM)
http://ibnlive.in.com/news/government-decides-to-split-andhra-pradesh-create-telangana-on-june-2/455857-62127.html
319
Pranab Mukherjee approves Telangana Bill, (Jan. 20, 2015, 7:17:39 PM)
http://indianexpress.com/article/india/politics/pranab-mukherjee-approves-telangana-bill-presidents-rule-imposedin-andhra-pradesh/
320
Committee to oversee muslim reservation in Hyderabad, (Feb. 10, 2015, 6:10:15 PM)
http://news.fullhyderabad.com/hyderabad-news/committee-to-oversea-muslim-st-reservation-in-state-ker12072.html
321
Telangana to follow the TN Model for Muslim quota, (Feb. 14,2015, 7:10:39 PM)
http://hindustantimes.com/StoryPage/Print/1228897.aspx?s=p
322
Ibid.
318
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(b) Whether the model and situation of Telangana is similar to that of Karnataka and Tamil
Nadu?
(c) Whether the move of the state is discriminatory and not qualifying under Article 14 and
15?
(d) Whether the government is justified in proposing educational and backward reservation
for Muslims? Whether the necessity to cross the 50% ceiling exists?
(e) Is the government justified in denying the employment to the people of Seemandhra
region working in Telangana?
(f) Is the governments move to grant educational benefits to natives of Telangana prior to
1956 constitutionally valid?
(g) The possible suggestions for such an implementation.
I.
MUSLIMS OF TELANGANA FALL WITHIN THE CATEGORY OF OTHER

BACKWARD CLASSES
Article 15(4) of the Indian Constitution deals with the issue of backward classes. The
Constitution of India being silent on who falls within the category of backward classes, leaves
the matter to the states to specify backward classes.323 The courts in the past have taken various
stances while defining backward classes. In M.R Balaji v. State of Mysore324 the honorable court
stated that a class to be identified as backward should be both educationally and socially
backward. Further stating
Poverty cannot be sole the test of backwardness
Caste may be a relevant factor but cannot be the sole factor
Poverty, occupations, place of habitation all contribute to backwardness

In Chitralekha v. State of Mysore325 the honorable court further laid down certain
occupations which would be treated as backward those being, agriculture, pretty business,
inferior services, crafts etc. In the present case, the Telangana government has termed the entire
caste of Muslims as backward. A similar proposition has been laid down by the courts, where
they have stated that a caste is also a class of citizens and therefore if an entire caste is found to
323
M.P JAIN, INDIAN CONSTITUTIONAL LAW, 943( LexisNexis 7the.d, 2014).

M.R. Balaji v. State of Mysore, A.I.R. 1963 S.C. 649 (India).
325
Chitralekha v. State of Mysore, A.I.R.1964 S.C. 1823 (India).
324
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be socially and educationally backward, on the basis of relevant data and material, then the
inclusion of a caste would not violate Article 15(1).326
Muslims constitute 12.4% of the population of Telangana. 327 Literacy rate of Muslims in
Telangana is 19% as compared to the 74% of the entire country.328Most Muslims like rest of
Andhra population are agriculturists. Many are also found in various crafts, some passed on for
generations. Significant number are involved in small businesses which is known as
KutirParishrama. Further the poverty ratio of Muslims is really high as compared to the
counterpart in the state i.e. Hindus. 329 In every determinant of backwardness the Muslims of the
State give a positive result and their plight is even worse as compared to states where they have
been declared backward. Which states that they indeed are backward and were entitled to
reservation for their upliftment.
II.
THE SITUATION OF TELANGANA IS SIMILAR TO THE MODELS OF

TAMIL NADU AND KARNATAKA
To analyze as to whether the situation of Telangana is similar to the models of Tamil Nadu
and Karnataka, a study of both the models is required. A comparative analysis of the models of
the three states is that in Karnataka, Muslims constituted 8.5 %330 whereas in Tamil Nadu they
constituted 5.561% of the total population as compared to 12.4% in Telangana. Second, the total
number of Muslims also is lesser than the Muslims in Telangana, which is 6,463,127 and
3,470,647 in Karnataka and Tamil Nadu respectively. Third, in Tamil Nadu the poverty ratio is
less than 10% for the Muslims, which is very much similar to the plight of the community in
Telangana.331 Fourth, if we consider literacy of Muslims in Telangana with respect to TamilNadu and Karnataka it is a bare minimum 12.4% whereas in the above mentioned states it is
326
P Rajendran v. State of Madras, A.I.R. 1968 S.C. 1012 (India).

Population by Religion Communities, (Jan. 15, 2015, 8:30:46 PM)
http://censusindia.gov.in/Census_Data_2001/Census_data_finder/C_Series/Population_by_religious_communities.h
tm
328
India at Glance, (Jan.14, 2015, 7:45:37 PM)
http://www.censusindia.gov.in/2011-prov-results/indiaatglance.html
329
Human Development Report, Andhra Pradesh (Jan. 21, 2015, 9:30:17 PM)
http://www.in.undp.org/content/dam/india/docs/human_revelop_report_andhra_pradesh_2007_full_report.pdf
330
Population by Religious Communities (Feb. 15, 2015, 10:30:16 PM)
http://demotemp257.nic.in/httpdoc/Census_Data_2001/Census_data_finder/C_Series/Population_by_religious_com
munities.htm
331
Sachchar Committee Report, (Mar. 7, 2015, 9:37:15 PM)
http://indianeconomy.columbia.edu/sites/default/files/working_papers/working_paper_2013-02-final.pdf
327
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70.1% and 82.9% respectively.
332
Fifth, if we focus on the representation of Muslims in
government jobs the picture is even worse as, Telangana has merely 4% reservation as compared
to 8.5 in Karnataka and 3.2 in Tamil Nadu. Therefore, the situation of Telangana is not similar
but even worse to that of Tamil Nadu and Karnataka. Thereby, the government is right on its part
taking the support of Tamil Nadu and Karnataka model for reservation.
III.
THE MOVE OF THE STATE IS NOT DISCRIMINATORY AND IS

QUALIFYING UNDER ARTICLE 14 AND 15
Article 14, of the Indian Constitution states that no person should be denied equality
before law in the territory in India. It guarantees that there wont be a denial of equal protection
of law to any person in India. However, such guarantee does not mean that identically same rule
of law must apply to all persons despite differences in circumstances or conditions.333Therefore,
like must be treated alike and unlike have to be treated unlikely. Further, to apply the principle of
equality in a practical manner, courts have evolved the principle that if a law is based on rational
classification it is not regarded as discriminatory.334 The test for classification to be reasonable
requires:
a) It should be based on intelligible differentia and should have some real and substantial
distinction.
b) The differentia must have a rational or reasonable nexus with the object sought to be
achieved.335
In the present matter, the unlike parties are the backward Muslims, to whom the same laws
cannot apply because of the differences in circumstances. The reservation in the present case,
qualifies as non-discriminatory and not bad in law as it is based on intelligible differentia. The
real and substantial distinction here being the, backwardness of the class as a whole, as proved
earlier. The object to be sought in the present case, is to provide the backward class an equal
footing with the rest of the classes in the society. This object in the long run aims to obliterate the
backwardness of the Muslims so as to bring them at par with the others in the society. Hence, the
object and the differentia have a rational nexus between them. Thereby, the said reservation is
332
Sachchar Committee Report, (Feb. 7, 2015, 9:37:21 PM)

http://www.minorityaffairs.gov.in/sites/upload_files/moma/files/pdfs/sachar_comm.pdf
333
ChiranjeetLal v. Union of India, A.I.R. 1951 S.C. 41 (India).
334
Ashutosh Gupta v. State of Rajasthan, (2002) 4 S.C.C. 34 (India).
335
LaxmiKhandsari v. State of Uttar Pradesh, A.I.R.1981 S.C. 873 (India).
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not violative of Article 14. Article 14 and 15 read together mean that if the state passes an
unequal law, the inequality must be based on some reasonable ground and that the grounds
mentioned in Article 15(1) i.e. religion, race, caste, sex, or place of birth, alone cannot be
reasonable grounds for discrimination.336 Meaning thereby, that if discrimination is based only
on one of these grounds, and no other factor is possibly present, then the law would offend
Article 15(1). But if any other ground exists apart from the above mentioned grounds, the
provision is valid under Article 15(1).337 The present case, deals with the above mentioned
principle. Here, the factor for discrimination is not religion solely. As stated above, the ground
for reservation and discrimination here is religion and the backwardness of that religion.
Therefore, Article 15(1) in the present case does not stand violated.
IV.
THE GOVERNMENT IS JUSTIFIED IN PROPOSING EDUCATIONAL AND

BACKWARD RESERVATION FOR MUSLIMS. THERE EXISTS A NEED TO
CROSS THE 50% CEILING.
According to Article 15(4), the state is allowed to make special provisions for the
advancement of any socially and educationally backward classes of citizens.338 In the present
case, it has been established that the Muslims are a socially and educationally backward class of
citizens in Telangana. Furthermore, the question remains as to whether the claimed reservation
of 12% is justified?
The honorable court has laid down that, reservations should be made on the basis of
quantifiable data showing backwardness of the class and inadequacy of representation in public
employment. The courts introduced the principle of proportionality i.e. the State has to see that
reservation provisions do not lead to breach the ceiling limit of 50%.339 But giving an exception
to the straight jacket rule the court further said that while 50% is the rule, putting in extra
ordinary situations in a country greatly diverse like India some relaxation in this rule may
become imperative at times.340 In the present case, the situation seems to be an extra ordinary
one as in the given situation, Muslims need reservation for their upliftment, as has been provided
in the past in the Tamil Nadu and Karnataka. Secondly, the quantum of reservation in the present
336
INDIA CONST. art. 15, cl. 1.

Narasappa v. ShaikHazrat, A.I.R. 1960 Mys. 59 (India).
338
INDIA CONST. art. 15, cl. 4.
339
M. Nagaraj v. Union of India, (2006) 8 S.C.C. 212 (India).
340
Indira Sawhney v. Union of India, A.I.R. 1993 S.C. 477 (India).
337
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case is more, because of the conditions of the subject which is far worse than those in the above
mentioned states.
V.
THE GOVERNMENTS MOVE TO GRANT EDUCATIONAL BENEFITS TO

NATIVES OF TELANGANA PRIOR TO 1956 IS CONSTITUTIONALLY
INVALID
The Telangana government has proposed that they will offer scholarships and fee
reimbursement only to students whose families were natives of Telangana prior to 1956. Here
native means, a person, who is acitizen of a particular place by virtue of being born there. 341In a
way, discrimination by birth is taking place in the present matter. As the scions of the families
during 1956, are living today and they will be the ones availing those educational benefits being
offered by the state government. Therefore, non-citizens living in Telangana prior to 1956 are
being discriminated on the place of birth which is in violation to Article 15(1). A similar
situation came before the court in the case of, A. Janikiramanvs. The State of Andhra Pradesh
and Anr.342where it held that the sole ground on which the petitioner was ousted was that he is a
"non-Andhra." In other words he was discriminated only on the ground of his place of birth,
which is very much similar to the present situation, as the discrimination is solely based on the
person being born in Telangana.
Second, the present situation is different from the situation in the case of DP Joshi v.
Madhya Bharat,343 where the exemption educational benefits like fee reimbursement were
granted on the basis of residence and not birth. There, the court held that residence and place of
birth are two different concepts. Article 15(1) would be violated if discrimination is on the basis
of place of birth, which is case in the present situation.
VI.
THE GOVERNMENT IS NOT JUSTIFIED IN DENYING THE EMPLOYMENT

TO THE PEOPLE OF SEEMANDHRA REGION WORKING IN TELANGANA?
Article 16(1) of the Indian Constitution guarantees equality of opportunity to all citizens in
matter relating to the employment. Although due to the reservation, certain portion of the said
seats might be reserved for the backward classes, but such reservation cannot be cent percent so
BLACKS LAW DICTIONARY, HENRY CAMPBELL AND BRYAN A GARNER, 1076 (West Group 8th Edition, 1999)
A. Janikiramanv.The State of Andhra Pradesh and Anr, A.I.R. 1964 S.C. 148 (India).
343
D.P Joshi v. Madhya Bharat, A.I.R. 1955 S.C. 334 (India).
341
342
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as to exclude the interest of general public. 344 The present case witnesses a clear violation of the
Fundamental Rights enshrined in Article 15 and 16. Article 15 and 16, read together clearly state
that, there should be a reasonable nexus between the object sought to be achieved and the
classification must be based on intelligible differentia. The fulfillment of both of them stands
violated then. The object sought here is the upliftment of the Muslims and the backward classes
of Telangana. But the means used are not valid, as banishing individuals from working is against
their right to freedom to practice any trade, profession and business.345
This situation is different from the one above discussed, as here instead of having
reservation, they are totally asking a set of people to stop working in Telangana. Which in turn is
causing discrimination based on residence and place of birth under Article 16(2) and 15(1). The
present case does not even qualify under the exception of Article 16(3) where in the Parliament
may make a law to prescribe a requirement as to residence within a State for eligibility to be
appointed with respect to certain classes of appointment or posts. The reason being that, for
Article 16(3) to be applicable some specific posts need to be mentioned, but the move of the
Telangana government does not specify any such posts. Its decision is for all the posts of
employment, which is violative of the Fundamental Rights of the individuals of Seemandhra. In
A.V.S Narasimha Raos case, a similar situation emerged where the Andhra Pradesh government
prescribed residence qualification for government services in Telangana. The court stated that
the Parliament can reserve certain posts for the residents of the State. Therefore, the denial of
Seemandhra people to work in Telangana is violative of their right enshrined under Article 16(1)
and is not an exception under Article 16(3).
VII.
SUGGESTIONS FOR IMPLEMENTATION
The Telangana government if really wants to achieve the objective of reservation which is
upliftment of the backward class it should follow a two-step theory. First, the policy of
reservation to be implemented should be time barred. Such a time bar can be applied for 3
generations. This in turn, will result in its purpose of offering a reservation being fulfilled,i.e.
upliftment of the backward classes. As three generations can be an ample time for bringing them
at par with other classes. This suggestion is a practicable one, and can be deduced fromthe
344
345
M.R Balaji, Supra 7.

INDIA CONST. art. 19, cl. 1 (g).
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example of Tamil Nadu where, after several years of reservation there came a time when the cutoff marks for both the General category and OBC were same.
346
Second, if the government is
adamant as to giving the reservation, it can do so by creating other backward classes. 347 By such
a means they can cross the 50% cap of reservation and achieve its aim of uplifting the backward
classes and bring them at par with the general class.
ShobhaWarrier, Evaluating Tamil Nadus 69% quota, (Mar. 19, 2015, 7:30:15 PM)
http://www.rediff.com/news/2006/may/30spec.htm
347
State of MP v. Nivedita Jain, A.I.R. 1981 S.C. 2045 (India).
346
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JUDICIAL TREND TOWARDS SENTENCING POLICY IN INDIA

VAIBHAV KUMAR
In Indian Criminal Justice Delivery System, there is no framework of policy while
sentencing accused neither the legislature nor the judiciary has issued structured sentencing
policy. But, in cases culminating in conviction of accused, a judge has to work out his sentencing
policy. Giving punishment to the wrongdoer is at the heart of the system. But, it is the weakest
part of administration of criminal justice in our country.
Every saint has a past, every sinner has a future- V R Krishna Iyer J].
To, reiterate, there is no legislative or judicial framework laid down policy to assist the
trial court in meeting out the just punishment to the accused facing trial before it, after he is held
guilty of the charges. Though, Various governmental committees have pointed to the need to
adopt such policy in order to minimize uncertainty in awarding sentences. The Supreme court
also recognizing the absence of such policy, have provided judicial framework in the form of
principles and factors that courts must take into consideration while exercising discretion in
sentencing. The Madhava Menon Committee and Mallimath Committee have recommended
introduction of sentencing guidelines, it is yet to be developed in our country.Once the guilt is
proved punitive dilemma begins. Judges working in any criminal justice system needs scientific
understanding of punishments and how to decide the quantum of punishment. Perspectives on
punishment have been changing from time to time and accordingly sentencing practices in a
given legal system change. Fair criminal justice system requires just sentencing of criminals.
Discretion given to judges on sentencing being wide, they need adequate knowledge of current
sentencing practices to take decisions on punishments. Decision on quantum of punishment
depends on a number of factors including the personal traits of the convict. This results in
disparity in sentencing of the convicts of similar crimes. Judges need expertise to exercise the
discretion in sentencing, allowing the disparity and at the same time maintaining uniform pattern.
This article aims at providing a critical insight into the judicial trends principles and policy of
sentencing.
1st Year Student of Masters in Public Policy, National Law School of India University, Bengaluru, India.
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1. BACKGROUND/ EXECUTIVE SUMMARY

Sentence is a Judgment on conviction for crime; the pronouncement by the Judge of the
Penalty or punishment as the consequence to the defendant of the fact of his guilt. 348 The passing
of a sentence on an offender is probably the most public face of the criminal justice system. In
the publics eyes, the sentence is the test as to whether justice has been done, both to the victim
and to the defendant.349
Theory of reformation through punishment is grounded on the sublime philosophy that every
man is born good, but circumstances transform him into a criminal
[K T Thomas J]350
The above quote reflects the divergent views on sentencing by the various judges of the
Supreme Court. It is also indicative of the fact that there is no uniform sentencing policy in the
country and sentences reflect the individual philosophy of the judges. On one hand, we have
judgments of Krishna Iyer J, who has developed in a series of pronouncements what should be
the nature of sentencing policy in India, which truly reflect the dictum outlined above, namely,
that every saint has a past and every sinner a future.351 The vagaries of sentencing was tellingly
pointed out by Krishna Iyer J in Rajendra Prasads case, 352 which though in the context of death
sentence, is nevertheless relevant in terms of what factors influence sentencing even in other
offences: Law must be honest to itself. Is it not true that some judges count the number of fatal
wounds, some the nature of the weapon used, others count the number of corpses or the degree
of horror and yet others look at the age or sex of the offender with some judges, motives,
provocations, primary or constructive guilt, mental disturbance and old feuds, the savagery of the
murderous moment or the plan which has preceded the killing, the social milieu, the sublimated
class complex and other odd factors enter the sentencing calculus.
The sentencing of offenders is a subject, which may be considered from many different
points of view. There is the high philosophical approach, which seeks to explain and provide a
moral justification for the infliction of punishment by society upon offenders. There is the
348
P. Ramanatha Aiyar, The Law Lexicon 1745 (1999).

Steve Unglow, Criminal Justice 235 (2002).
350
State of Gujarat v Honble High Court of Gujarat AIR 1998 SC 3164, PARA 32, p 3172.
351
See for example, Giasuddin v State of AP AIR 1977 SC 1926, Hiralal Mallick v State of Bihar AIR 1977 SC
2236; 1977 Cri LJ 1921.
352
AIR 1979 SC 916, para 19, 924-25.
349
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sociological and criminological approach, which describes what the various forms of sentence
entail as far as the person undergoing the sentence is concerned, and may also suggest what
sentences are the most effective in determining and/or reforming criminals. There is the
approach, which concentrates upon the decisions of the Court of Appeal, seeking to extract from
those decisions an approved sentencing pattern for common types of crime. Now is a particularly
apt time to bring out a work on sentencing policy. For an effective criminal justice system now
days it is a need to enact an effective sentencing policy.
Sentencing is the stage of criminal justice system where the actual punishment of the
convict is decided by the judge. Sentence being the end result of all trials resulting in a
conviction and sentence being an indispensable phenomenon of criminal law as per our social
conception, the sentencing process plays a crucial role in the gamut of the criminal justice
system.353 It follows the stage of conviction and the pronouncement of this penalty imposed on
the convict is the ultimate goal of any justice delivery system. In an Indian criminal justice
system there are so many actors involved apart from the accused and victim, it is not possible to
treat all of them to react in the same manner to a specific act of crime. Through this paper try to
achieve a deeper understanding of sentencing and how the socioeconomic background of the
prisoners influences their access to the criminal justice system, and how the system itself
impoverishes those who seek access to it.Given the tremendous social and economic disparity in
our country, the criminal justice system, with its deeply entrenched systemic flaws such as
investigative arbitrariness, multiple getaways, inordinate delay during trial, and the allpervasive, capricious element of chance, impoverishes the already impoverished. It is a matter of
serious interrogation as to whether our criminal justice system can be relied upon to mete out a
sentence of such a grave nature, not only in terms of the enormous impact it has on the psyche of
the condemned prisoner, but in terms of the financial and social implications of the sentence on
the families of the prisoner. The paper seeks to achieve an understanding not only of the extent
of the impact of the sentence on the prisoner and his family, but also the various factors
impinging upon his access to justice, which include but are not limited to his socioeconomic
condition, through interviews with the prisoners, their families and their trial court lawyers. The
paper also entails analyzing judgments so as to ascertain whether judicial practices reflect the
353
Dr. S.V.Joga Rao, Current Issues in Criminal Justice and Medical Law A critical focus 72 (1999).
128
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change in legal philosophy on sentencing. The Supreme Court of India in Bachan Singh v. State
of Punjab and Santosh Kumar Bariyar v. State of Maharashtra has lamented the lack of
empirical research on the death penalty in India. The judicial trend towards sentencing policy
research paper aims at filling that gap by tracing the journey of the convict through the
bewildering labyrinth of the criminal justice system, including the difficulty in accessing legal
aid as well as the consequences of its structural limitations.
2. THE SENTENCING PROCEDURE AS UNDER CRIMINAL PROCEDURE
CODE, 1973
The Code provides for wide discretionary powers to the judge once the conviction is
determined. The statutory scheme applicable to sentencing and execution of sentencing helps the
judiciary and appropriate government (which includes central government as well as state
governments) to play active role. The Code talks about sentencing chiefly in S.235, S.248, S.325,
S.360 and S.361. S.235 is a part of Chapter 18 dealing with a proceeding in the Court of Session.
It directs the judge to pass a judgment of acquittal or conviction and in case conviction to follow
clause 2 of the section. Clause 2 of the section gives the procedure to be followed in cases of
sentencing a person convicted of a crime. The section provides a quasi trial to ensure that the
convict is given a chance to speak for himself and give opinion on the sentence to be imposed on
him. The reasons given by the convict may not be pertaining to the crime or be legally sound. It
is just for the judge to get an idea of the social and personal details of the convict and to see if
none of these will affect the sentence.354 Facts such as the convict being a breadwinner might
help in mitigating his punishment or the conditions in which he might work.355 This section
plainly provides that every person must be given a chance to talk about the kind of punishment to
be imposed.
The section just does not stop at allowing the convict to speak but also allows the defence
counsel to bring to the notice of the court all possible factors, which might mitigate the sentence,
and if these factors are contested then the prosecution and defence counsels must prove their
argument. This ordeal must not be looked on as a formality but as a serious effort in doing justice
to the persons involved. A sentence not in compliance with S.235 (2) might be struck down as
354
R.V.Kelkar, Criminal Procedure, K.N.Chandrasekharan Pillai (Rev.)4 th ed. 2001(Rep.,2003) ,pp500-503.

For instance, if the convict is a bread winner then the court might provide that the convict be given such work
that he gets paid for it and the payment be made to his family.
355
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violative of natural justice. However this procedure is not required in cases where the sentencing
is done according to S.360. S.248 comes under Chapter 19 of the Code dealing with warrants
case. The provisions contained in this section are very similar to the provisions under S.235.
However this section ensures that there is no prejudice against the accused. For this purpose it
provides in clause 3 that in case where the convict refuses previous conviction then the judge can
based on the evidence provided determine if there was any previous conviction. The judge at
any point cannot exceed his powers as provided under the code in the name of discretion. In
cases where the magistrate feels that the crime proved to have been committed is of greater
intensity and must be punished severely and if it is outside the scope of his jurisdiction to award
the punishment then he may forward the case to the Chief Judicial Magistrate with the relevant
papers along with his opinion.356
The main part of judicial discretion comes in S.360 which provides for release of the
convict on probation. The aim of the section is to try and reform those criminals in cases where
there is no serious threat to the society. This is conveyed by limiting the scope of the section only
to cases where the following conditions exist:
A woman convicted of offence the punishment of which is not death or life imprisonment
A person below 21 years of age convicted of offence the punishment of which is not
death or life imprisonment
A male above 21 years convicted of an offence the punishment of which is fine or
imprisonment of not above 7 years.
In the above cases when there is no history of previous conviction the court can, having
consideration to other relevant factors such as age, circumstances while committing the crime,
character, mental condition, etc. use its discretion and release the convict on entering into a bond
with or without sureties. If a magistrate of II class and not authorised by the High Court opines
that the person tried deserves the invocation of this section then he might record his opinion and
forward the case to the magistrate of I class. To enable the judge to get full facts of the case the
section provides all rights to the judge for enquiry into the details of the case.
Also if the crime committed is of such nature that the punishment awardable cannot be
more that 2 years or a simple fine then, having consideration to the various factors connected to
356
Section 325, Cr. P.C
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the convict, the court may leave the convict without a sentence at all after mere admonition. The
court also takes steps in case the person does not comply with the rules laid down at the time of
release as provided under this section such as re-arrest of the person. For release under these
provisions it is necessary that either the convict or the surety are residing or attend regular
occupation in the jurisdiction of the court. The Code through S.361 makes the application of
S.360 mandatory wherever possible and in cases where there is exception to state clear reasons.
Wherever the punishment given is below the minimum prescribed under the relevant laws the
judge must give the special reason for doing so. The omission to record the special reason is an
irregularity and can set aside the sentence passed on the ground of failure of justice. These
provisions are available only to trials before the Court of Sessions and the trials of warrants case.
The Probation of Offenders Act, 1958 is very similar to S.360 of the Cr. P.C. It is more
elaborate in the sense that it explicitly provides for conditions accompanying release order, a
supervision order, payment of compensation to the affected party, powers and predicaments of
the probation officer and other particulars that might fall in the ambit of the field. S.360 would
cease to have any force in the States or parts where the Probation of Offenders Act is brought
into force.357
3. WHAT IS THE NEED OF SENTENCING POLICY?
The main difficulty before the existing legal framework as provided for in the Cr. P.C is
the variation in the result obtained from the same set of facts. The judges are allowed to reach the
decision after hearing the parties. However the factors which should be considered while
determining the decision and those which should be avoided is not specified anywhere in the
code. This is where the judge is expected to use his/her personal discretionary power to fix the
punishment. This personal discretion eventually gets abused in a large number of cases due to
irrelevant consideration and application of personal prejudices. This is the basic reason for need
of sentencing policy. Having made a case for the need for having a sentencing policy, it is now
necessary to look into its contents. There have been various propositions and juristic opinion on
what would constitute and what should constitute sentencing policy. In order to equip oneself to
discuss such a proposition it is necessary to understand the already proposed policy. This would
help in grasping the spirit of the exercise and co-ordinate a more wholesome product as a result.
357
Section 19 of the Probation of the Offenders Act, 1958
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The 35th Law commission report on Capital Punishment comprehensively explains various
aspects relating to sentencing focusing more closely on capital sentencing. The discussion in the
report on the codification of the factors to guide the discretion vested in the judge for awarding
capital punishment can be extended to the general discussion on Certainty and Predictability
versus Judicial Discretion.358 The response from a Rajya Sabha member and Inspector-General
led to the narrowing down of the influencing factors to passion, opportunity, acquired habit,
insanity and innate instinct. As far as India is concerned, the Indian Penal Code provides us with
a broad classification and gradation of punishments. This has been further carved by various
judicial decisions on sentencing. However these rulings of the court suffer from the following
disadvantages:
a) Facts specific: Though these guidelines are given as Obiter Dicta, the application of such
guidelines is misleading in the subsequent judgments. Currently the well established Guideline
followed by the courts is with respect to death penalty as explained above. The application of
this test in the case of A. Devendran v. State of Tamil Nadu359 explains this point. This was a
case of triple murder. However the Court held that the trial court was not justified in awarding
death sentence as the accused had no pre-meditated plan to kill any person and as the main object
was to commit robbery. This case should be compared with Gentela Vijayavardhan Rao v. State
of Andhra Pradesh discussed above. The motive in both is to rob the victim. However in one
case it has been used as a aggravatingfactor and the other it is used as a mitigating factor. This
shows how the same test has been contradictorily applied.
b) Not followed by lower courts: Another side of the coin is that the lower courts do not follow
these guidelines as they are not binding on them. The precedents are usually ignored or
differentiated from the existing fact scenario so as to give the judge his space to rule on the case.
c) More of a legislative job: More importantly, it is the job of the legislature to make rules and of
the judiciary to interpret and enforce it. It would not be fulfilling or correct to expect and allow
the judges to frame the rules by themselves.
d) A final reason as to why the judiciary should not frame the rules is that it once again boils
down to the whims and fancies of the judge framing it. This would only be a mere extension of
the belief of one judge over all others.
358
359
35th Law Commission Repot, 1967, pp190 - 202

AIR 1998 SC 2821
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One of the propositions, which will be discussed here, is that proposed by Andrew von Hirsch
and Nils Jareborg. They divided the process into stages of determining proportionality while
determining a sentence. The four steps are
What interests are violated or threatened by the standard case of the crime physical
integrity, material support and amenity, freedom from humiliation, privacy and autonomy
Effect of violating those interests on the living standards of a typical victim minimum
well-being, adequate well being, significant enhancement
Culpability of the offender
Remoteness of the actual harm as seen by a reasonable man
Factors, which determine culpability, vary depending on which of the following schemes one
intends to follow.
1. Determinism Where factors outside oneself determines the actions eg. self defence and
duress. However most people have sufficient freedom to determine their actions so this
will not hold good at all times
2. Social and Familial background low family income, large family, parental criminality,
low intelligence and poor parental behaviour.
3. The employment, education and economic policy have a major impact on individuals.
They result in consequences such as deprivation and marginalization leading to
development of criminals in the society.
The chief criticism of this procedure is that once again it involves a wide discretion of the judge
when it comes to determining the culpability. This once aging leads to certainty as against the
discretion. In Indian judicial system it is not possible to do away with discretion all together.
However what one has to keep in mind is on particular system should treat a particular fact as
either mitigating or aggravating. This highly depends on what is the aim of the system.
Therefore, in Indian judicial system needs to be a sentencing policy clearly elucidating the
purpose of the system. And also immense importance needs to be given to the social and
economic background of the convict as a mitigating circumstance.
4. ABSENCE OF STRUCTURED SENTENCING GUIDELINES
Currently India does not have structured sentencing guidelines that have been issued either
by the legislature or the judiciary. In March 2003, the Committee on Reforms of Criminal
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Justice System (the Malimath Committee), a body established by the Ministry of Home Affairs,
issued a report that emphasized the need to introduce sentencing guidelines in order to minimize
uncertainty in awarding sentences, stating:The Indian Penal Code prescribed offences and punishments for the same. For many offences
only the maximum punishment is prescribed and for some offences the minimum may be
prescribed. The Judge has wide discretion in awarding the sentence within the statutory limits.
There is now no guidance to the Judge in regard to selecting the most appropriate sentence given
the circumstances of the case. Therefore each Judge exercises discretion accordingly to his own
judgment. There is therefore no uniformity. Some Judges are lenient and some Judges are harsh.
Exercise of unguided discretion is not proper even if it is the Judge that exercises the discretion.
In some countries guidance regarding sentencing options is given in the penal code and
sentencing guideline laws. There is need for such law in our country to minimize uncertainty to
the matter of awarding sentence. There are several factors, which are relevant in prescribing the
alternative sentences. This requires a thorough examination by an expert statutory body. 360
The committee advised further that, in order to bring predictability in the matter of sentencing,
a statutory committee should be established to lay guidelines on sentencing guidelines under the
Chairmanship of a former Judge of Supreme Court or a former Chief Justice of a High Court
experienced in criminal law with other members representing the prosecution, legal profession,
police, social scientist and women representative. In 2008, the Committee on Draft National
Policy on Criminal Justice (the Madhava Menon Committee), reasserted the need for statutory
sentencing guidelines. In an October 2010 news report, the Law Minister is quoted as having
stated that the government is looking into establishing a uniform sentencing policy in line with
the United Kingdom and United States in order to ensure that judges do not issue varied
sentences.
In India, there is no uniform sentencing policy and generally it is alleged that sentences
reflect the individual philosophy of the judges. The Supreme Court has always been trying to
achieve uniformity in standards for restricting the area of imposition of death penalty. Its efforts
in this direction could be deemed to have started by interpreting the words special reasons
360
The Government of India, Ministry of Home Affairs, Committee on Reforms of Criminal Justice System Report
170 (Mar. 2003) http://www.mha.nic.in/hindi/sites/upload_files/mhahindi/files/pdf/criminal_justice_ system.pdf.
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incorporated in Section 354(3) Cr. P.C in 1973. As rightly pointed out by A.N.Sen, J. in
Rajendra Prasad Prasad v. State of U.P361 Justice K. Iyer tried to abolish death penalty by
classifying cases fit for capital punishment and by giving restrictive interpretation to special
reasons. The controversy ultimately came again before the Supreme Court in Bachan Singh v.
State of Punjab,362 wherein the majority rightly rejected the attempt to standardize the
circumstances as explained by Misra, J. in OMA v. State of T.N.363thus:
The majority opinion in Bachan Singhproceeded to answer the question:Whether the Court can lay down standards or norms restricting the area of imposition of
death penalty to narrow the categories of murders and, in that context, it opined that
standardization of the sentencing process would tend to sacrifice at the alter of blind uniformity,
in fact, indeed there is a real danger of such mechanical standardization degenerating into a bed
of procrustean cruelty. But in almost all the subsequent decisions the efforts to standardize the
circumstances rather than the sentencing process connecting it with the purposes of punishment,
are on. In this standardization syndrome, no theorization is involved. What is done is the
mechanical narration of the aggravating and mitigating circumstances and then the choice of a
particular sentence on the basis of one of the circumstances identified and listed by the court.
This becomes evident if one examines the observations of the Court in various cases. For eg, let
us examine the observations of the court in the following cases: In Alister Anthony Pareira v.
State of Maharashtra364, the Supreme Courts observations are relevant. The court observed
sentencing is an important task in the matters of crime. Out of the prime objectives of criminal
law is imposition of appropriate, adequate, just and proportionate sentence commensurate with
the nature and gravity of the crime and the manner in which the crime is done. There is no
straitjacket formula for sentencing an accused on proof of crime. The courts have evolved certain
principles: the twin objective of the sentencing policy is deterrence and correction. What
sentence would meet the ends of justice depends on the facts and circumstances of each case and
the court must keep in mind the gravity of the crime, motive for the crime, nature of the offence
and all other associated circumstances. The principle of proportionality in sentencing a crime
doer is well entrenched in criminal jurisprudence. As a matter of law, proportion between crime
361
(1979) 3 SCC 646

(1980) 2 SCC 684
363
(2013) 3 SCC 440
364
(2012) 2 SCC 648
362
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and punishment bears most relevant influence in determination of sentencing the crime doer.
The court has to take into consideration all aspects including social interest and consciousness of
the society for award of appropriate sentence.
The Supreme Court spoke of the sentencing in Surja Ram v. State of Rajasthan,365 for
deciding just and appropriate sentence to be awarded for an offence, the aggravating and
mitigating factors and circumstances in which a crime has been conducted are to be delicately
balanced. Such balancing is indeed a delicate task. The court referred to a US Court judgment,
Dennis Councle Mc Gautha v. State of California,
366which
pointed out that no formula of a
foolproof nature is possible that would provide a reasonable criterion in determining a just and
appropriate punishment, as an infinite variety of circumstances may affect the gravity of the
crime of murder. Thus, in the absence of any basis for reasonable criteria to correctly assess
various circumstances germane to the consideration of gravity of crime of murder, the
discretionary judgment in the facts of each case, is the only way in which such judgments may be
equitably distinguished. Under S. 63 regarding amount of fine, where no sum is expressed to
which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall
not be excessive. The sentence of fine should be is unlimited, but shall not be excessive. The
sentence of fine should be imposed individually and not collectively. The amount of fine
imposed should not also be unduly harsh or severe.
Under S. 63 regarding amount of fine, where no sum is expressed to which a fine may
extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive.
The sentence of fine should be imposed individually and not collectively. The amount of fine
imposed should not also be unduly harsh or severe.
In Philip Bhimsent Aind v. State of Maharashtra367the accused had been convicted and
sentenced to life imprisonment for offence under Ss. 302, 307, 392/397 and 394, IPC and also
ordered to pay an amount of Rs. 5000 as fine, on each count for offences under Ss. 302 and 307.
The Bombay High Court considered the fact that the accused was just 19 years old, and a house
servant and would not be able to pay the fine. The court thereafter reduced the fine amount from
365
AIR 1997 SC 18
(1917) 402 us 183: 28 L Ed 2d 711
367
1995 Cri LJ 1694 (Bom) at para 29.
366
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Rs. 5,000 on each count to Rs 1,000 for each count.368 When the court sentences an accused for a
punishment, which includes an amount of fine, it can specify that in the event the convict does
not pay the fine amount, he would have to suffer imprisonment for a further period as indicated
by the court, which is generally referred to as default sentence. Section 65, IPC fixes the
maximum period as 1/4th of the maximum period fixed for the offence the accused person is
convicted of, that can be imposed as default sentence in case the convicted person does not pay
the fine amount.
The Supreme Court discussed it in Ram Jas v. State of UP369. In this case, the accused had
been convicted for offences under Ss. 420/511, 367, 468 and 471 read with S. 120-B IPC, and
was awarded a cumulative sentence of three years rigorous imprisonment and a fine of Rs. 3,000
and in default of payment of fine, to two years rigorous imprisonment. On appeal, Allahabad
High Court convicted the accused to imprisonment, but maintained the fine amount at Rs. 3,000.
The default sentence was not stipulated.
In the case of State of Punjab v. Prem Sagar and others370, Honorable Supreme Court has
observed thatA sentence is a judgment on conviction of a crime. It is resorted to after a person is
convicted of the offence. It is the ultimate goal of any justice delivery system. The Parliament,
however, in providing for a hearing on sentence, as would appear from sub-section (2) of section
235, subsection (2) of section 248, section 325 as also section 360 and 361 of Code of Criminal
Procedure, has laid down certain principles. The said provisions lay down the principle that the
Court in awarding the sentence must take into consideration a large number of relevant factors;
sociological backdrop of the accused being one of them. Although a wide discretion has been
conferred upon the Court, the same must be exercised judiciously. It would depend upon the
circumstances in which the crime has been committed and his mental state. Age of the accused is
also relevant. What would be the effect of the sentencing on the society is a question, which has
been left unanswered by the legislature. The Superior Courts have come across a large number of
cases, which go to show anomalies as regards the policy of sentencing. Whereas the quantum of
punishment for commission of a similar type of offences varies from minimum to maximum,
368
See also Zunjarro Bhikaji Nagarkar v. Union of India, AIR 1999 SC 2881
AIR 1974 SC 1811
370
(2008) 7 SUPREME COURT CASES 550
369
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even where same sentence is imposed, the principles applied are found to be different. Similar
discrepancies have been noticed in regard to imposition of fine.
Expressing similar concern about sentencing policy, Honourable Apex Court has observed
in the case of Dhananjoy Chatterjee alias Dhana versus State of West Bengal,371that-In recent
years, the rising crime rate particularly violent crime against women has made the criminal
sentencing by the courts a subject of concern. Today there are admitted disparities. Some
criminals get very harsh sentences while many receive grossly different sentence for an
essentially equivalent crime and a shockingly large number even go unpunished thereby
encouraging the criminal and in the ultimate making justice suffer by weakening the systems
credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposing
of sentence but the object of sentencing should be to see that the crime does not go unpunished
and the victim of crime as also the society has the satisfaction that justice has been done to it. In
imposing sentences in the absence of specific legislation, Judges must consider variety of factors
and after considering all those factors and taking an overall view of the situation, impose
sentence which they consider to be an appropriate one. Aggravating factors cannot be ignored
and similarly mitigating circumstances have also to be taken into consideration. The measure of
punishment in a given case must depend upon the atrocity of the crime; the conduct of the
criminal and the defenseless and unprotected state of the victim. Imposing of appropriate
punishment is the manner in which the courts respond to the societys cry for justice against the
criminals. Justice demands that courts should impose punishment befitting the crime so that the
courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of
the criminal but also the rights of the victim of crime and the society at large while considering
imposition of appropriate punishment.
So, it was expressed and ruled down that nature and quantum of sentence is depended
upon certain factors. No such factors were enlisted anywhere, as such straitjacket formula cannot
be laid. But, in the case of Soman versus State of Kerala372, also observed the absence of
structured guidelines:
Giving punishment to the wrongdoer is at the heart of the criminal justice delivery, but in our
country, it is the weakest part of the administration of criminal justice. There are no legislative or
371
372
1994 SUPREME COURT CASES (CRIMINAL) 358

(2013) 11 SUPRME COURT CASES 382
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judicially laid down guidelines to assist the trial court in meting out the just punishment to the
accused facing trial before it after he is held guilty of the charges.
Nonetheless, if one goes through decisions of this Court carefully, it would appear that this
Court takes into account a combination of different factors while exercising discretion in
sentencing, that is proportionality, deterrence, rehabilitation etc.. In a proportionality analysis, it
is necessary to assess the seriousness of an offence in order to determine the commensurate
punishment for the offender. The seriousness of an offence depends, apart from other things, also
upon its harmfulness. The question is whether the consequences of the offence can be taken as
the measure for determining its harmfulness? In addition, quite apart from the seriousness of
offence, can the consequences of an offence be a legitimate aggravating (as opposed to
mitigating) factor while awarding a sentence. Thus, to understand the relevance of consequences
of criminal conduct from a Sentencing standpoint, one must examine: (1) whether such
consequences enhance the harmfulness of the offence; and (2) whether there are any aggravating
factors that need to be taken into account by the Courts while deciding on the sentence. From the
above, one may conclude that1. Courts ought to base sentencing decisions on various different rationales- most prominent
amongst which would be proportionality and deterrence.
2. The question of consequences of criminal action can be relevant from both a
proportionality and deterrence standpoint.
3. In so far as proportionality is concerned, the sentence must be commensurate with the
seriousness or gravity of the offence.
4. One of the factors relevant for judging seriousness of the offence is the consequence
resulting from it.
5. Unintended consequences/harm may still be property attributed to the offender, if they
were reasonably foreseeable. In case of illicit and underground manufacture of liquor, the
chances of toxicity are so high that not only its manufacturer but the distributor and the
retail vendor would know its likely risks to the consumer. Hence even though any harm
to the consumer might not be directly intended, some aggravated culpability must attach
if the consumer suffers some grievous hurt or dies as result of consuming the spurious
liquor.
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However, in describing Indias sentencing approach the court has also asserted that the
impossibility of laying down standards is at the very core of the criminal law as administered in
India which invests the judges with a very wide discretion in the matter of fixing the degree of
punishment.373
5. SENTENCING IN INDIA AN ANALYSIS
The principal sources of Indian sentencing policy are two fold, dominantly the legislation
and judicial decisions. Statute law, i.e. the Indian Penal Code and other local and special laws lay
down the terms under which a criminal court may pass sentence after conviction. A progressive
trend in the area of sentencing is discernible in the Indian criminal justice system. Thanks to the
substantial amendments that are being brought about in the Code of Criminal Procedure 1973,
which in particular incorporated clause (2) in section 235374 makes it mandatory on the part of
the sentencing judge to hear the accused on the question of sentence, when the accused is found
guilty. Similarly section 248 (2)375 enjoins a duty on the part of the Magistrate to hear the
accused with regard to the question of sentence.
However legislation in India is not solely influenced by the reformative theory. Other
sentencing rationales, for example the principles of deterrence and retribution are reflected in the
core fabric of Indias sentencing policy. This is evidenced by provisions such as section 53 of the
Indian Penal Code, which deals with different punishments, including the death penalty, section
75 of the IPC, which speaks of enhanced punishment for certain offences, after previous
conviction, the incorporation of the concept of mandatory minimum punishment and so forth.
The deterrent principle is especially applied in cases of socio-economic offences.
6. CRIMES AND JURISTIC OPINION ON SENTENCING
Honble Mr. Justice V.R. Krishna Iyer, has suggested that, All punishment must be
oriented on reformation.376 Justice Krishna Iyer and Chinnappa Reddy treat the retributory and
denunciatory justifications as futile. In this context it has been observed Sometimes the thought
373
Jagmohan Singh v. State of Uttar Pradesh, (1973) 2 S.C.R. 541

Section 235 (2) of the Cr.P.C: If the accused is convicted, the Judge shall, unless he proceeds in accordance with
the provisions of section 360, hear the accused on the questions of sentence, and then pass sentence on him
according to law.
375
Section 238(2) : Where, in any case under this chapter, the Magistrate finds the accused guilty, but does not
proceed in accordance with the provisions of Section 325 or section 360, he shall, after hearing the accused on the
question of sentence, pass sentence upon him according the law.
376
Durga Pada Das, The Tragedy of Minimum Punishment in the Sentencing Process (1997) 1 Cri LJ 26 (Jour
Sec.)
374
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is expressed that the victim is for-gotten by those who advocate mercy for the brutal convict. But
then punishment is not lex talionis of retributive genre. To be strictly retributive is to descend to
the level of the criminal.377
In favour of deterrence as a sentencing rationale, Justice Sen has held that, Deterrence is
held to be the most important basis of sentencing policy. There is some evidence that abolition of
deterrence as a basis of sentencing policy may be followed by an increase in crime. Where the
sentencing policy promotes reformation, the suitability of the offender for reform needs to be
decided. In this context, Justice Beg has held that It is not possible for the Courts to attempt on
the slender evidence there generally is on this aspect to explore the murky depths of a warped
and twisted mind so as to discover whether an offender is capable of reformation and if so, in
what way Thus, it can be seen that juristic opinion remains divided, in respect of the different
sentencing rationales.
7. DISPARITY IN SENTENCING
One complex problem relating to the sentencing process is the lack of uniformity in the
quantum of punishment given by different courts for the same or similar offences. The Supreme
Court took note of the problem of disparity in sentences in Rameshwar Dayal v. State of U.P.,
(1971) 3 SCC 924. The court observed that the problem of disparity had not been solved
satisfactorily so far. In the case before it, the court found it strange that though the two cases
were identical in terms of the offence and circumstances, a four year imprisonment was awarded
in one while only three months imprisonment was given in the other.
Though sentencing disparity cannot be eliminated altogether, yet efforts can be made for
reducing it to a minimum level. The strategies indicated are the better training of judicial officers
and the co-ordination of sentencing. In this context it becomes relevant to discuss two devices,
sentencing councils and appellate review of sentences, which are particularly designed to reduce
the sentencing disparity in the United States. The sentencing council consists of several judges of
a multi-judge court who meet periodically to discuss sentences to be imposed in pending cases.
From such a discussion a consensus on sentencing standards may emerge. However, the ultimate
responsibility for determining a sentence rests with the Judge to whom the case is assigned,
although the discussion and need to state reasons for a sentence tend to restrain the imposition of
B.B. Pande, Face to Face with Death Sentence: Supreme Courts Legal and Constitutional Dilemma, (1979) 4
SCC 39 (Jour Sec).
377
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unreasonably severe or lenient sentences. The appellate review of sentences affords the occasion
for a systematic and continuous examination of sentencing policy by an appellate court. The
appellate review encourages the development of uniform and considered sentencing policies
within a jurisdiction. It leads both the trial court and the appellate court to give sustained and
explicit consideration to the justification for particular sentences. It provides a workable means
of correcting unjust and ill-considered sentences, particularly those in which the punishment
imposed is grossly inappropriate.378These devices are worth trying in our system of criminal
justice for the purpose of reducing sentencing disparity.
8. JUDICIAL ORIENTATION
Sentencing standards are so utterly absent in the criminal system that aberrations
frequently occur, shaking the faith of the community in the system of judicial sentencing. There
are many theories of sentencing from penal humanitarianism and rehabilitative therapeutics to
retributive justice and public denunciation cult.379However few judges in India have received
training in correctional theories and practices. Judges while well qualified legally, possess few if
any penological qualifications. It is imperative that this situation be remedied, if an effective
sentencing system is to be achieved. In Santa Singh v. State of Punjab, 1976 Cri LJ 1875: AIR
1976 SC 2386 the Supreme Court emphasized the importance of training judicial personnel in
penology and sentencing procedures. Judges are encouraged to seek and obtaining training,
education and information to assist them in evaluating the effectiveness of available sanctions,
programs, and sentencing options in reducing future criminal conduct. Regular Judicial training
institutes, conferences at which judges meet with other judges and with correctional authorities,
to discuss sentencing standards and learn about the available correctional programmes and the
latest reforms in the area of sentencing are therefore needed. In fact there have been endeavours
in this direction as is evidenced by the Judicial Orientation Training Courses, which are being
offered today, and the number of conferences and lectures being organized for the purpose of
judicial orientation.
P. Paramaguru, Punishment, Treatment and Correction, 4 Indian Journal of Criminology 119 (1976).
V.R. Krishna Iyer, Reforms in Criminal Justice: Issue and Problems in Decision Making, 9 Indian Journal of
Criminology 6 (1981).
378
379
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9. CERTAIN LANDMARK JUDICIAL PRONOUNCEMENTS

Judicial decisions are significant sources of sentencing law. This paper is confined to
examining Supreme Court judgments only. Over the years, despite Apex Court decisions
reflecting the deterrent principle to a great extent, it is to be noted that the Supreme Court while
laying foundation for new vistas in human right jurisprudence has repeatedly upheld and
emphatically supported the reformative ideal. In the case of Sunil Batra v. Delhi
Administration,380the Supreme Court held that reformation, not vindictive suffering, should be
the purpose of penal treatment. In the landmark judgment in Mohammad Giasuddin v. State of
A.P., 1977 Cri LJ 1557: AIR 1977 SCC 1926 it was held that the sub-culture that leads to antisocial behavior has to be countered not by undue cruelty but by reculturisation. Therefore the
focus of interest in penology is the individual and the goal is salvaging him for society. we
therefore, consider a therapeutic, rather than an in terrorem outlook should prevail in our
criminal courts, since brutal incarceration of the person merely produces laceration of his mind.
In the Supreme Courts judgment in Soman v. Kerala, the apex court laid down a number of
principles that it has taken into consideration while exercising discretion in sentencing, such as
proportionality, deterrence, and rehabilitation.381 As part of the proportionality analysis,
mitigating and aggravating factors should also be considered, the court noted. In State of M.P. v.
Bablu Natt, the apex court stated, the principle governing imposition of punishment would
depend upon the facts and circumstances of each case. An offence, which affects the morale of
the society, should be severely dealt with.382 Moreover, in Alister Anthony Pareira v. State of
Maharashtra, the Court held that Sentencing is an important task in the matters of crime. One of
the prime objectives of the criminal law is imposition of an appropriate, adequate, just and
proportionate sentence commensurate with the nature and gravity of the crime and the manner in
which the crime is done. There is no straitjacket formula for sentencing an accused on proof of
crime. The courts have evolved certain principles: the twin objective of the sentencing policy is
deterrence and correction. What sentence would meet the ends of justice depends on the facts
380
AIR 1980 SC 1579: 1980 Cri LJ 1099 See also, N.V.Rao v. State of U.P., AIR 1978 SC 480: 1978 Cri LJ 641,
Narottam Singh v. State of Punjab, AIR 1978 SC 1542: 1978 Cri LJ 1612 these cases also support the reformative
principle.
381
Soman v. State of Kerala, (2013) 11 S.C.C. 382, para. 13
382
State of M.P. v. Bablu Natt, (2009) 2 S.C.C. 272, para. 13
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and circumstances of each case and the court must keep in mind the gravity of the crime, motive
for the crime, nature of the offence and all other attendant circumstances.383
Murder
The punishment for murder under I.P.C is life imprisonment or death and the person is
also liable to fine. Guidance on the application of the death sentence was provided by the
Supreme Court of India in Jagmohan Singh v. State of Uttar Pradesh, where the court
enunciated an approach of balancing mitigating and aggravating factors of the crime when
deciding on the imposition of capital punishment.384
Jagmohan's Case:The question of constitutional validity of Sec. 302, I.P.C. was discussed in detail by the SC
in Jagmohan v. State of U.P. Apart from the constitutional validity, the SC also discussed
position in other countries, the structure of Indian Criminal law, various policies and bills
proposed in the parliament, the extent of Judicial discretion etc. On the question of constitutional
validity the Court observed:-" The Cr.P.C. requires that the accused must be questioned with
regard to the circumstances appearing against him in the evidence . He is also questioned
generally on the case and there is an opportunity for him to say whether he wants to say in
important cases like murder, the Court always gives a chance to the accused to address the Court
on the question of Sentence. Under the Cr.P.C. after convicting the accused, the Court has to
pronounce the sentence according to law."
On all these grounds the SC rejected the argument that under Sec. 302, I.P.C., life of
convict is taken without any procedure established by law & therefore, it violates Art. 21 of the
constitution. Thus, the SC settled this controversy long back in 1973. However even after
Jagmohan's case this question came up again and again.
However, this approach was called into question first in Bachan Singh v. State of Punjab
where the court emphasized that since an amendment was made to I.P.C, the rule has changed so
that the offence of murder shall be punished with the sentence of life imprisonment. The court
can depart from that rule and impose the sentence of death only if there are special reasons for
doing so.385The Court also emphasized that due consideration should not only be given to the
383
Alister Anthony Pareira v. State of Maharashtra, (2012) 2 S.C.C. 648, para. 69

Jagmohan Singh v. State of Uttar Pradesh, (1973) 2 S.C.R. 541
385
Bachan Singh v. State of Punjab, (1980) 2 S.C.C. 684, para. 165
384
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circumstances of the crime but to the criminal also. However, more recently the Court in Sangeet
& Anr. v. State of Haryana, noted that the approach in Bachan has not been fully adopted
subsequently,386 that primacy still seems to be given to the nature of the crime, and that the
circumstances of the criminal, referred to in Bachan Singh appear to have taken a bit of a back
seat in the sentencing process. The Court in Sangeet concluded as follows:
1. This Court has not endorsed the approach of aggravating and mitigating circumstances in
[the 1971 case of] Bachan Singh. However, this approach has been adopted in several
decisions. This needs a fresh look. In any event, there is little or no uniformity in the
application of this approach.
2. Aggravating circumstances relate to the crime while mitigating circumstances relate to
the criminal. A balance sheet cannot be drawn up for comparing the two. The
considerations for both are distinct and unrelated. The use of the mantra of aggravating
and mitigating circumstances needs a review.
3. In the sentencing process, both the crime and the criminal are equally important. We
have, unfortunately, not taken the sentencing process as seriously as it should be with the
result that in capital offences, it has become judge-centric sentencing rather than
principled sentencing.
4. The Constitution Bench of this Court has not encouraged standardization and
categorization of crimes and even otherwise it is not possible to standardize and
categorize all crimes.
5. The grant of remissions is statutory. However, to prevent its arbitrary exercise, the
legislature has built in some procedural and substantive checks in the statute. These need
to be faithfully enforced.
Death sentence of Dhananjay Chaterjee was executed on 14th August 2004, and he was
hanged till death, after affirmation by the Supreme Court and rejection of his mercy Petition by
the Hon'ble president. The case against him was that he hit a girl aged 14 years, brutally on head,
and while the girl was dying, she was raped by the accused. Result: ultimately the girl died. The
session's court considered it as the rarest of rare case. High Court affirmed the death sentence
and the appeal against the High Courts order was dismissed by the Supreme Court of India.
386
Sangeet & Anr. v. State of Haryana, (2013) 2 S.C.C. 452, paras. 29 & 5254
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While the majority of people in this country welcomed the execution, there were a few
organizations & people who straight away outlaw capital punishment for any kind of offence and
therefore, they opposed Dhananjay's death sentence as well. All this opposition led to a big
drama before the sentence was executed and a desperate attempt was made to keep the issue of
death sentence alive.
We as the member of this legal fraternity have seen this question being tossed up a no. of
times and every time it has been settled down by the honorable Courts. None of us would like to
go into the debate of " whether capital punishment should be abolished or not" again. However,
at this point of time when the issue is still raging, it will be appropriate to remind ourselves as to
how the legislatures and the apex Court have dealt with this issue every time it has come up
before them. Another issue is regarding the extent of judicial discretion.
We are convinced that it ought to be very sparingly inflicted, and we propose to employ it only
in cases where either murder or the highest offence against the state has been committed.
It may be pertinent to mention here that the Indian Criminal jurisprudence is based on a
combination of deterrent and reformative theories of punishment. While the punishments are to
be imposed to create deter amongst the offenders, the offenders are also to be given opportunity
for reformation. Keeping these theories in mind, the legislatures drafted Sec. 354 (3) of the
Cr.P.C. This subsection basically lays down that special reasons are to be recorded by the Court
for imposing death punishment in capital offences. Thus, the position of law after Cr.P.C. 1973
became that the general rule was life imprisonment while the death sentence was to be imposed
only in special cases.
Bachan Singh's Case:The next important case, and which can be termed as a milestone in the Indian Criminal
Jurisprudence is the case of Bachan Singh v. State of Punjab. So strong were the principles laid
down by the apex court went in this case that the principles are being followed even now despite
the fact that SC itself has expressed the need to review criminal jurisprudence from time to time.
Firstly we must understand why Jagomhan's Case was reviewed. After Cr. P.C. 1973, death
sentence ceased to be the normal penalty for murder [354(3)]. Another reason was that Maneka
Gandhi's case gave a new interpretation to Art. 14,19 and 21 and their interrelationship. Core
issues before the SC were constitutional validity of Sec. 302 of the I.P.C. as well as
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constitutional validity of Sec. 354 (3) of Cr. P. C. While answering the question of
reasonableness of death penalty, the constitution bench also discussed various other issues. These
issues were: Whether death sentence saves any enological purpose?
Views of famous Jurists & sociologists from all over the world.
Various foreign cases and position in other countries.
Which circumstances can aggravate or mitigate death punishment?
Cases in which the death sentence should be inflicted, and
The extent of judicial discretion and need of guidelines.
J. Sarkaria delivered the judgment for majority discussing all these issues at length, and the SC,
with the majority of 4:1 rejected the challenges to the constitutionality of Sec. 302 I.P.C. as the
354 (3) of Cr. P.C.
J Bhagwati was the only one to dissent. He said:"I am of the opinion that Sec. 302 of the I.P.C. in so for as it provides for imposition of death
penalty as an alternative to life sentence is ultra vires and void as being violative of Art. 14 and
21 of the constitution since it does not provide any legislative guidelines as to when life should
be permitted to be extinguished by imposition of death sentence".
Some of the observations made by the apex court in Bachan Singh's case are worth
noting. On the question of reasonableness of death penalty, the SC observed- "If not
withstanding the view of the abolitionists to the contrary, a very large segment of people, the
world over, including sociologists, legislature, Jurists, judges and administrators still firmly
believe in the worth and necessity of capital punishment for the protection of society, if in the
perspective of prevailing crime conditions in India, contemporary public opinion canalized
through the peoples representatives in parliament, has repeatedly including the one made
recently to abolish or specifically restrict the area of death penalty, if death penalty is still a
recognized legal sanction for murder or some types of murder in most of the civilized countries
in the world, if the farmers of the Indian constitution were fully aware of the existence of death
penalty as punishment for murder, under the Indian Penal Code, if the 35th report and
subsequent reports of law commission suggesting retention of death penalty, and recommending
revision of the Cr.P.C. and the insertion of the new sections 235 (2) and 354 (3) were before the
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Parliament when it took up revision of the Cr.P.C., it is not possible to held that the provision of
death penalty as an alternative punishment for murder, in sec. 302, Penal Code is unreasonable
and not in the public interest. The impugned provision in Sec. 302, violates neither the letter nor
the ethos of Article 19".
This view of the SC was supposed to negate any chance of a controversy in future on the
question of death sentence. On the question of " Whether death Penalty serves any penological
purpose?"
The SC considered a number of opinions from all over the world. Out of them, the opinion
of Sir James Fitziames Stephen, the great Jurist, who was concerned with the drafting of I.P.C.
is very important to mention"No other punishment deters man so effectually from committing crimes as the punishment of
death. This is one of those propositions which is difficult to prove simply because they are in
themselves more obvious than any proof can make them.
In any secondary punishment, however terrible, there is hope, but death is death, it's terrors
cannot be described more forcibly. "These views are very strong answers to the people who
oppose death punishment with the arguments that it does not serve penological purpose.
10. WHEN CAN DEATH SENTENCE BE INFLICTED
Now comes the questions as to when should the courts be inclined to inflict death sentence
to an accused? As have been stated earlier, after Cr. P. C., 1973, death sentence is the exception
while life imprisonment is the rule. Therefore, by virtue of section 354(3) of Cr.P.C., it can be
said that death sentence be inflicted in special cases only. The apex court modified this
terminology in Bachan Singh's Case and observed"A real and abiding concern for the dignity of human life postulates resistance to taking a life
through law's instrumentality. That ought to be done save in the rarest of rare cases when the
alternative option is unquestionably foreclosed."
To decide whether a case falls under the category of rarest of rare case or not was
completely left upon the court's discretion. However the apex court laid down a few principles
which were to be kept in mind while deciding the question of sentence. One of the very
important principles is regarding aggravating and mitigating circumstances. It has been the view
of the court that while deciding the question of sentence, a balance sheet of aggravating and
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mitigating circumstances in that particular case has to be drawn. Full weightage should be given
to the mitigating circumstances and even after that if the court feels that justice will not be done
if any punishment less than the death sentence is awarded, then and then only death sentence
should be imposed.
Again in Machhi singh vs. State of Punjab the court laid down:"In order to apply these guidelines inter alia the following questions may be asked and answered:
(a) Is there something uncommon about the crime which renders sentence of imprisonment
for life inadequate and calls for a death sentence?
(b) Are there circumstances of the crime such that there is no alternative but to impose death
sentence even after according maximum weightage to the mitigating circumstances
which speak in favor of the offenders?"
The principles laid down by the apex court were reiterated in it's latest judgment in Sushil
Murmu Vs. State of Jharkhand:"In rarest of rare cases, when the collective conscience of the community is so shocked that it
will expect the holders oft eh judicial power center to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of retaining death penalty, death sentence
can be awarded."
The SC has also discussed such circumstance in various cases. These circumstances include: Murder committed in an extremely brutal, grotesque, diabolical, revolting or dastardly
manner so as to arouse intense and extreme indignation of the community.
Murder- for a motive which evinces total depravity and meanness.
Murder of a Scheduled cast or Scheduled tribe- arousing social wrath. Bride burning/
Dowry death.
Murderer in a dominating position, position of trust or in course of betrayal of the
motherland.
Where it is enormous in proportion.
Victim- innocent child, helpless woman, old/infirm person, public figure generally loved
and respected by the community.
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If upon taking an overall view of all the circumstances and taking in to account the
answers to the question posed by way of the test of rarest of rare cases, the circumstances of the
case are such that death penalty is warranted, the court would proceed to do so.
Judicial discretion:For all the offences, in which death sentence is the punishment, it may be noted that it is
not the only punishment, it is the extreme penalty. Thus, these sections, by virtue of their very
wordings itself, provide for a discretion which is to be vested in the courts to decide the quantum
of punishment. So the ultimate judicial discretion to decide whether death sentence is to be
imposed or not, have been vested in courts right from the inception of Penal Code in 1860.
However the manner of exercising this discretion has undergone various changes with the
changing time and evolution of new principles. There is also a debate going on, about the extent
of this judicial discretion.
In Jagmohan's Case the SC held:"The structure of our criminal law which is principally contained in the IPC and the
CR.P.C. undertakes the policy that when the legislatures have defined an offence with clarity and
prescribed the maximum punishment, therefore a wide discretion in the matter of fixing the
degree of punishment should be allowed to judges."
Thus the SC was in favor of wide discretion to be given to judges for deciding the degree
of punishment. However, this vide direction was restricted by section 354(3) of Cr. P. C. 1973
which laid down the law that for death sentence special reasons are to be recorded, meaning
thereby, that death sentence is to be imposed in special cases only.
In this case the court observed:"The discretion to impose the sentence of death or life imprisonment is not so vide after all
section 354 (3) has narrowed the discretion. Death sentence is ordinarily ruled out and can only
be imposed for special reasons Judges are left with the task of discovering' Special reasons'.
The courts themselves were concerned for the way in which this discretion was being used. The
court expressing its concern in Dalbir Singh v. State of Punjab said:"Notwithstanding the catalogue of grounds warranting death sentence as an exceptional measure,
'life' being the rule, the judicial decisions have been differing (and dithering) at various levels
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with the result the need for a through re-examination has been forced on courts by counsel on
both sides".
Though this problem was solved by the apex court itself to a very large extent by
discussing various issues at length and laying down few very-very important guidelines.
J.Sarkaria viewed in Bachan Singh's case:"It is imperative to voice the concern that courts, aided by the broad illustrative guidelines
indicated by us, will discharge the onerous function with evermore scrupulous care and humane
concern, directed along with high road of legislative policy outlined in Sec. 354(3)"
11. NEED OF SENTENCING GUIDELINES
The Supreme Court laying down the guidelines in Bachan Singh's case and after that in
Machhi Singh's case attempted to direct the courts toward a particular path while deciding the
question of sentence. But the broader question is that, has that actually happened in last two and
a half decades? A brief analysis of the cases decided by the SC. Regarding the question of death
sentence over last 25 years, will reveal how differing/dithering the judgments have been.
In Kurami alias Mutha vs. State of Tamil Nadu, the accused was a poor agriculturist and had a
wife and five children to support, but considering the murder of two persons as brutal the death
sentence was confirmed but this case was before Bachan Singh's case, and till that time the
principle of aggravating and initiating circumstances was not laid down.
In Mahesh vs. State of M.P., the accused were convicted for 5 murders. The cause of
which was marriage of a lady belonging to higher caste with a harijan boy. The court held "To
give the lesser punishment for the appellants would be to render the just icing system of this
country suspect. The common man will loose faith in court. In such cases he understands and
appreciates the language of deference more than the informative jargon."
While the very next year, in a brutal and dear case of bride burning the S.C. observed:"From the judgment of the High Court, it is apparent that death sentence is awarded more out of
anger than on reasons. Judicial discretion should not be allowed to be swayed by emotion and
indignation. Ultimately the death sentence was commuted to life imprisonment.
In 1994, while deciding the case of Anshad vs. State of Karnataka, the SC Commuted
death sentence to life imprisonment while the accused was convict of a brutal, diabolical murder.
The sentence was commuted because the SC felt that there are chances of reformation of
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accused. With due respect to the court's view, it is submitted that there still remains a question
creating doubts on such judgments as to how to judge the chances of reformation of an accused
in a particular case. However, it can be done on the line of SC's judgment in Javed Ahmed
Abdul Hamid passawa vs. State of Maharastra on this case. The death sentence of accused was
affirmed in 1983, but later, on the basis of serious atonement., the SC commuted the sentence to
life imprisonment.
Then comes the very important case of Mohd. Chaman vs. State (N.C.T.) of Delhi. In this
case a one and halfyear old girl was raped by the accused, and because of the henious act, she
sustained serious injuries and died. High Court confirmed the death sentence awarded by the
sessions Court. But the Hon'ble SC commuted the death sentence into life imprisonment,
observing:"The crime committed is undoubtedly serious and heinous and the conduct of the appellant is
reprehensible. It reveals a dirty and prevented mind of a human being who has no control own
his carnal desires. We are not persuaded to accept that the case can be called one of the ' rarest of
rare cases' deserving death penalty. We find it difficult to hold that the appellant is such a
dangerous person that to spare his life will endanger the community. It is our considered view
that the case is one in which a humanist approach should be taken in the matter of awarding
punishment "
Can it be said that justice was done? In order to avoid controversies and to put forward
their liberal approach, Judges often change the degree of offence avoiding the guidelines laid
down by the apex court itself. This should not happen. It is the basic duty of a judge to render
justice in Toto and while doing so he shall not get affected by any surrounding circumstances or
controversies which may arise in future. But this is an idealistic approach and cannot be followed
completely. Indian legal system is no different and it seems that the judges also get prejudiced
with their surroundings and social circumstances,. This could be the only reason that we see such
different approaches being taken by different judges in offences of similar nature.
In the case of Mohd. Chaman, on the question of extent of judicial discretion, the court
observed:"Such standardization is well nigh impossible. Firstly degree of culpability cannot be measured
in any case. Secondly criminal cases cannot be categorized, there being infinite, unpredictable
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and unforeseeable variations. Thirdly in such categorization, the sentencing procedure will cease
to be judicial. And fourthly, such standardization or sentencing discretion is policy matter
belonging to the legislature beyond the courts functions".
Despite the fact that full discretion is given to judges, in ultimate analysis, it can safely be
said that such wide discretion has resulted into enormously varying judgments, which does not
portray a good picture of the justice delivery system. What is needed to be done; therefore; is to
revise and review the guidelines and principles laid down in cases like Bachan Singh or Machhi
Singh, or if it is felt that these guidelines still stand firm and fit perfectly in the present social
scenario, then these guidelines have to be strictly complied with, so that the persons convicted
for offence of similar nature are awarded punishments of identical degree.
The Indian sentencing policy should strike a sober balance between sentimental softness
towards the criminal, which assumes the guise of reformative sentencing, and torment-oriented
handling of the criminal stemming from sentencing based on the theories of retribution and
deterrence. Such a system does exist in India today, to a certain extent, but requires to be
strengthened.
CONCLUSION
What is the Courts objective when passing a sentence? We know the Mikado had a clear
sentencing policy for he tells us:
My object all sublime, I shall achieve in time, to make the punishment fit the crime...
(The Mikado, Gilbert and Sullivan)387
But a clear and articulated sentencing policy is a rarity. Although it is one of our key
indicators of justice, the sentencing decision is almost invariably unsatisfactory in terms of its
objectives, its effectiveness and its consistency. The questions, why do we punish and How
should we punish are to be ranked among those eternal questions to which there exists no ready
answers. It may be said that there exists today a sentencing dilemma. The dilemma lies in the
reality, that the equation of punishment deterrence and retribution on one side and reformation
on the other has never been resolved. And it is doubtful whether this dilemma will ever be
resolved, as the entire issue of sentencing and the ancillary questions are too subjective in nature,
for there to be complete coherence in the system. As has been mentioned before, sentencing
387
Michael Marcus, We can Do Better at Fighting Crime.
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policy may resort to a judicious combination of a selection of the different rationales, to evolve a
truly effective criminal justice system.
A sentencing structure based on the rehabilitative concept conditions release from prison
upon the showing that the prisoner has been rehabilitated. This creates injustices through
disparities in sentences and time served. It invites hypocrisy on the part of both inmates and
administrators, since prisoners must often mask their true feelings and deign repentance, while
administrators are to encourage the voluntary rehabilitation of the prisoner but must prolong
the imprisonment of those who do not respond to treatment. It is an insult to the prisoner whose
criminality is caused by bitterness at society and who rightly or wrongly feels justified in
committing a crime and consequently does not feel genuine remorse.
With specific reference to India, it may be said that it would be utopian to work towards
achieving absolute perfection in the sentencing domain, but it is essential that tireless efforts be
made towards developing a far more structured, streamlined and articulate policy than that which
may be said to exist today. Such policy must not just take factors such as sentencing rationales
and statistical data into account, but must also consider the ground realities of India, the standard
of its reform-oriented programmes, the socio-economic realities of India, for example, if the sole
breadwinner of a poverty-stricken family is incarcerated for a long time, what becomes of his
family and the future of his children, since in India, welfare measures in such instances are
practically non-existent. The victims rights and suffering undergone due to the crime committed
are never to be overlooked in the philanthropic zeal to be lenient to a convicted offender due to
certain extenuating circumstances, unless such lenience is completely justifiable. Only a holistic,
compassionate and yet objective understanding of the impact, which a sentence may have, will
render such sentencing effective.
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DYNAMICS OF GENDER JUSTICE: PATRIARCHY &FEMINISM IN THE

INDIAN PERSPECTIVE
VISHAL MISHRA
This paper analysis the Gender inequities throughout the world are among the most
pervasive, though deceptively subtle forms of inequality. Gender equality concerns each and
every member of the society and forms the very basis of a just society. This paper also examines
the sustenance of the institution of patriarchy in the Indian context through an inquisition into its
dominant manifestations at a societal level in the form of rape and gendercide, and at an
individualistic level, the institutions impact on women due to its interface and interplay with the
structures of family and law. A comparative assessment of the broad theoretical frameworks of
feminism as has developed historically within a western context and the constructs and
frameworks relevant to the Indian context is explored, with reasoning for the necessity of those
differences within the two schools of thought. Responses to patriarchy are then broadly
bifurcated into two types that explore the state-led response to patriarchy and its impact, and the
Indian feminist movements response to patriarchy. Further, the importance of role models is
emphasized, through case studies of individual women that have successfully combated
patriarchy.
1. INTRODUCTION
A complex intersection of historical, social, cultural, religious and political norms shape
the institution of patriarchy within the Indian context. Be it through the Brahminical notions that
entrenched gender hierarchies through the mechanism of the caste system (Chakravarthi, 1993),
or the modern notion of family planning as perpetrated by the west that led to pernicious
consequences on Indian society (Patel, 2007) due to the existence of deep-seated patriarchal
notions, patriarchys percolation within spheres of social life is pervasive through manifestations
sometimes so innocuous that it is considered normative, and at other times through acts so
morally abhorrent and brutal, yet euphemized in common parlance, simply ignored, or shrugged
under the carpet.
3rd Year, LL.B Student, CCS University, Meerut, Mewar Law Institute, Ghaziabad, India.
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The fight is not for womans status but for human worth. The claim is not to end inequality of
women but to restore universal justice. The bid is not for loaves and fishes for the forsaken
gender but for cosmic harmony which never comes till woman comes
- Krishna Iyer, J.
Academic exploration of the notion of patriarchy assumes a very broad and overarching
framework through which male power and prejudice can be explained. For the understanding of
the notion of patriarchy though, the context within which patriarchy is being explored needs to
be studied,particularly if the hypothetical structure utilized is not an indigenous advancement.
The purpose behind this is a philosophical investigation of the linkages between hypothesis,
practice and activism, and is not applicable to other fields as much as it is to feminism, and its
campaign for equal rights for women. The body of feminist thought in the west is for the most
part seen through the prisms of women's activist conventions like Liberal, Marxist, Socialist and
Black activist thought (Approaches to Feminism (Stanford Encyclopedia of Philosophy), 2004).
However, feminist activism or theoretical compositions of feminism in a country with such
pluralism as India cannot be so seamlessly categorised into such neat compartments, due to the
intersectional creation and conception of the identity of a woman. Many theorists argue that
despite such cognitive hurdles in categorising womans experiences in India through western
philosophical traditions of feminism, there has been a ceaseless engagement of Indian feminist
traditions with hypothetical positions of feminism in the west. Indeed, scholars argue that notions
of feminism in India seamlessly integrate experiences in India with the theoretical premises of
the feminist stance of the west (Ghosh, 2007).
The debate when investigating woman's rights and gender in India is not restricted to the
inquiry of whether Indian women's liberation has had roots in the predominant western notions
of Feminism. Numerous scholars on the subject accept and contend that feminist developments
in the Indian dialects exist, autonomous of the western origination of woman's rights movements
in the west. However, for it to be open and exhaustive, particularly the Indian subcontinent, it
needs to basically discover representation in the western norm and theoretical framework that
tries to homogenize indigenous women's activist change developments and learning structures in
India. Patriarchy in the Indian context manifests itself in a myriad of ways. Men control
womens productivity both within the household and outside, in paid work, especially in rural
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and semi-urban parts of India. Within the household women provide all kinds of services to their
family, throughout their lives. This is often not compensated for, and feminist author Sylvia
Walby terms this as the patriarchal mode of production where womens labour is expropriated
by their family. Thecontrol over and exploitation of womens labour means that men benefit
materially from patriarchy. They benefit economically from the subordination of women. This is
the key economic basis of patriarchy (Walby, 1989).
Patriarchy also pervades within the sphere of the family. Men control womens
reproductive power. In contexts such as India and China, women have no control over the
number of children or the time they have between choosing to reproduce. Furthermore, women
are obliged to be at the beck and call of their spouse in order to feed their sexual desires. Moral
regulations exist to restrict the expression of womens sexuality outside marriage in every
society, while male promiscuity is often condoned. Rape and threat of rape is another way in
which womens sexuality is controlled through notions of shame and honour and family
honour. Lastly, womens sexuality is controlled through their dress, behavior and mobility which
are carefully monitored by the family and through social, cultural and religions codes of
behavior.
Besides control over womens sexual being, production and reproduction, patriarchy also
exercises control over womens mobility. The imposition of purdah restriction on leaving the
house, limit on interaction between the sexes are some of the ways by which the patriarchal
society controls womens mobility and freedom of movement. Most property and other
productive resources are further controlled by men and are passed on from father to son. [Eg.
Father to Son as per HSA, 1956. But now the Act was amended in 2005 by the Hindu Succession
(Amendment) Act, 2005.] According to UN statistics, Women do more than 60% of the hours
of work done in the world, but they get 10% of the worlds income and own 1% of the worlds
property.
In response to this pervasive power structure, arose the notion of feminism predominantly
post the Age of Enlightenment in the west in the 18th century, with its primary call for agency
and women empowerment. Feminism is equally broad-based in its approach to societal norms,
and is increasingly accommodative of various approaches. Power within the framework of
feminist theory is a multi-dimensional, intersectional concept that is contingent on a myriad of
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sociological, cultural, religious, political, and economic ideas. In classical feminist theory,
Feminism touches all aspects of social life as patriarchy and women oppression are found in all
class castes, religion, groups and culture. Historically, in feminist academia, the feminist
movement occurred in two waves. The first wave refers to the late 19th century where feminist
movements were mainly concerned with gaining equal rights for women. They demanded equal
legal and political right, while the second wave feminism refers to feminist activities in the late
1960s and 1970s. Finally in the last ten-fifteen years there is a third wave referring to differences
and inequalities among women themselves.
2. DIFFERENT APPROACHES TO FEMINISM
All feminists are concerned with improving womens status within society. They are
committed to analyze womens present position, understand its cause or conditions responsible
for it and think and plan course of action to improve this. However, within this common
framework there are many differences. These differences are regarding the cause of present
situation and plant to change it. Liberal Feminism believes that men and women are equally
rational. They are both therefore qualified to fulfill social and practical roles at any level. The
Marxist theory, on the other hand, believes that the different genders represent demarcation
between private and public spheres of activity maintained by capitalists for their own interests.
Radical Feminism assumes all culture is male-dominated and radical stances are the only way
out, whereas psycho-analytical feminism approaches feminist thought through use of different
language and expression. Existential Feminism believes that women must have to assert their
autonomy in defining themselves against men through a definition of her own identity.
Individual Feminism speaks about the frustrations of middle class women. Cultural Feminism
explores the dichotomy between mind and body epistemologically between the genders, while
post-modern feminism argues the absence of identity leading to contradictory experiential
exploration (Approaches to Feminism, Stanford Encyclopedia of Philosophy, 2004)
The central question this paper seeks to address is two-fold. What sustains the institution
of patriarchy in the Indian context? Given its sustenance, what should be the responses of
women, the feminist movement, and the state in trying to respond to this structure in a manner
that is effective and seeks to further the rights of women within this context? In an ideal
situation, the response of women at an individual level, the response of the feminist movement to
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the unique nature of Indian patriarchy and the response of the state should be seamlessly
synchronised against a common enemy, namely the institutional structure of patriarchy but since
that doesnt always happen, due to inherent power structures of patriarchy, the need exists for a
larger conceptual framework for analysis, exploration and understanding of an unanimous
strategy to counter patriarchal notions of feminism. Such a unanimous strategy is what this paper
attempts to explore, and in pursuance of such an objective seeks to question reality, to come up
with a relatively agreeable broadbased framework for activism that is not restricted to womens
groups or feminists alone.
The organization of this paper keeping in mind the structure above is therefore as follows:
The first part deals with the manifestation of patriarchy and the various causes sociological or
otherwise that lead to its sustenance. The analysis of these causes is done primarily through the
examination of an intersection of two of the most prevalent yet morally repugnant manifestations
of the patriarchal narrative: rape and gendercide. From analyzing the societal phenomena to
understanding some of the macroscopic undercurrents, there is then an investigation of the
infiltration of patriarchy within a family unit, through a study of inheritance law and the kind of
situations that it forces women into where there exists deep conflict between community law and
state law. The need to analyse the ever widening chasm between morally acceptable
communitarian codes of behavior and the evolving nature of inheritance law is explored, so as to
factor in the challenge of minimising the rift that exists between the increasingly progressively
worded legislations for inheritance rights of women and the societal attitudes to the desirability
of such positions.
The second part of the paper then examines the various responses that stakeholders within
society can have towards patriarchy, with an analysis of consequences of actions or positions in
real politik terms. The fundamental argument that is to be extended in the second part of the
paper is that the institution of patriarchy exists, through subliminal sanction of individuals and
institutions that legitimise and bolster patriarchy without explicitly striving to do so. A sharp
emphasis is laid on role-models that have acted as change-makers within their own communities,
and the lessons that remain to be learned from those contexts. The need for role models exists,
since in an attempt to explore theoretical positions of feminists and gender theorists, very often
the anecdotal evidence of individual struggles against deep rooted patriarchal prejudices and
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power imbalances, is either not acknowledged, or not co-opted sufficiently to a larger theoretical
discourse of tackling gender discrimination and violence against women.
3. RAPE: A PERVASIVE SOCIOLOGICAL PHENOMENON
Dominant narratives on rape and sexual violence which circulate and take currency in the
popular perception, frequently denote it as a sexual crime that is primarily driven by urges of the
perpetrator, notwithstanding the complex nature of the crime. This view, that rape is primarily
born out of uncontrollable sexual urges of the perpetrator (Jones, 1999), in the macro analysis of
reality, is unfortunately limited in its understanding of the phenomenon, and of the pervasiveness
of the rape culture in India which has multiple social, cultural and political dimensions to it
(Woolgar & Pawluch, 1985), in addition to various individual interpretations. The understanding
of rape through just a biological domination perspective, which has great currency in the
deterministic school of positivist psychology, is limited as it ignores the underlying environment
that causes the action of sexual violence to manifest. The power structures in society that derive
their legitimacy through subjugation of women, though not explicitly, are often woefully
leftunexplored in the current dominant discourse that has the currency of shared understanding,
which makes it harder to attack the problem or weakens our thrust in terms of approach due to
the limited understanding that we have of the true nature of the problem in itself. It is therefore
the contention of this paper, that to appropriately deal with the nature of the problem, it is not
enough to seek to explore ways to mitigate the problem, but the very nature and understanding of
the problem needs to be critically analysed from the perspective of real long term strategies to
counter incidences of rape, as opposed to short term functional arguments that find greater and
easier acceptability in popular culture(Ellis et. al, 1981).
The other issue is one within the feminist theoretical framework itself, a problem largely
derivative of the fact that a bulk of academia within the larger framework of the feminist
discourse is focused primarily on western and binary notions of classification of injustices that
are often ignorant of the complexities of identities that exist in countries such as India (Dorit,
2004). Such a limitation is significant, in more ways than just an academic limitation of theory,
since for the theoretical notions of western feminism to be customised into a framework of
implementation in the Indian context, with a problem orientation, the theory have to accurately
explain the true nature of social reality in India, to be able to adequately advocate a normative
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solution to problem of power imbalance and gender discrimination in the Indian context.
In the context of the feminist incentive to locate rape and crime against women in the sociology
of men, as opposed to their biology, just to merely assign sociological imperatives to the
functional experience of victims of rape and other crimes targeted at women would be an
incomplete study of the underpinnings of rape, and indeed, the culture that has developed around
it.
The theoretical conflict between the deterministic model of violence against women from a
biological explanation of the behavior to a more sociological exploration of such imperatives,
characterised the entire gamut of academic theorising on the subject. The exact sociological
design that explains the causal or institutional factors that explain the power relations of a rape
situation between that of the perpetrator and the victim are to be looked at from the perspective
of social undercurrents and the philosophy that permeates the male psychology, as opposed to a
mere binary characterisation of the violence of the perpetrator. The uniqueness of the Indian
situation thus needs the analytical tool of intersectionality to explain the sociology of power
imbalance between the perpetrator and the victim of rape or a gender crime (Crenshaw, 1994).
One of the interesting ways to explore the social structures that underpin the culture of rape is
through a study of media portrayal of rape. Such an analysis though may be of interest to the
academic discipline of cultural studies, has unique relevance to studying the rape narrative
that circulates as commonly accepted wisdom about the occurrence of rape and its various
manifestations. The need to explore the various social structures and institutions that feed into
the rape narrative is central to be able to deal with the latent patriarchal values that implicitly
perpetuate gender discrimination, female infanticide, gendercide, and sexual assault against the
woman, even though there are on many occasions token solidarity with the superficial expression
of preventing crimes against women (Valdivia, 1995).
4. GENDERCIDE:
PRODUCT
OF
PATRIARCHY
AND
WESTERN
INTERVENTION
Perhaps one of the most stark and brutal manifestations of patriarchy is in the form of
gendercide. The term, coined by Mary Anne Warren in 1985, refers to the systematic elimination
of members of a particular gender through means such as sex-selective abortion, infanticide,
neglect in care and systematic malnourishment. In patriarchal societies where traditional gender
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roles are emphasised and re-emphasised in the private sphere of the family in order to entrench
them, and there is little or no social security, daughters are increasingly considered a financial
and social burden by patriarchs. The logical extension of this also finds expression in the feudal
and patriarchal identity of implied property rights enjoyed by a man, vested in a woman in his
life and also in the so called private realm of his family. No wonder then, that in most rural
households across India, the accidental birth of a baby girl in those rare circumstances where an
abortion has not already been sought, is followed by calls of the patriarch for dudh pilao,
euphemism for killing the child by drowning it ina pail of milk accompanied by cymbals to
drown out the struggling feeble cries of the child (Bandhopadhyay, 2000).
Of course, the common parlance justification for gendercide follows a routine pattern,
legitimised in an intangible and informal structure of complex societally oriented patriarchal
reasoning. Daughters within the Indian context are considered property of the husband upon
marriage, the idea of marriage accompanies with it the burden of dowry, the notion of raising a
woman is fraught with financial burdens that often have no returns on investment during ones
old age. Add to this the burden on families to produce sons that can sustain the family line, and
the patrilineal traditions that are already very prevalent, and the case against having women in
family structures within patriarchal societies seems iron-clad and in favour of the brutal atrocity
that is sex-selective abortion or female infanticide.
That understanding of gendercide and its reasoning is at best, superficial, although
resonates with the truth. A study of gendercide often requires us to view not merely traditional
notions, but the cruel conjunction of western proliferation of the notion of agency that has caused
great harm to the very notions of agency that it tries to preserve. In the mid-1960s, Sheldon
Segal, a leading American embryologist from the Population Council, trained doctors on how to
perform pre-natal sex scans at the All India Institute of Medical Sciences. Early sex-selective
abortions were performed without any concern for social or government sanction, in government
hospitals where doctors helped to identify the sex and abort the foetus if it was a girl, with full
approval and using funds of aid organisations of the west (Khanna, 1997). Modern tools of
sex-determination, quite easily available, enabled patriarchy to utilise them to dispose of
unwanted children willynilly and term it family planning in urbanmiddleclass households. In
rural India, sex-selection just transformed from being an issue post-birth, to a much more
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insidious pre-birth custom.

Amartya Sen, in his pre-1990 work on cooperative conflict, argued for a correlation
between poverty, lack of resources, and rising levels of gender discrimination that manifested in
variousforms including gendercide (Sen, 1990). However, a deeper analysis of the issue sheds
light on the converse being true; that there is a correlation between rising incomes and the
propensity towards sex-selection. Feminist notions of liberal thought and freedom within women
are accompanied by the realisation of the pervasive framework of patriarchy within the modern
Indian context. The notion of agency is oft misused, with radical feminist supporting the notion
of sex-selective abortion as being in line with the broader campaign for agency that the feminist
umbrella is currently under. The pernicious outcomes of this sort of bracketing, a notion derived
out of western thought on feminism, makes one flawed assumption - that the idea of agency and
consent of a woman within this framework is a truly independent and an informed rational one.
Thus the larger philosophical debate between normative rationality and the agency of a woman
in making an individual choice without concerns for its moral propriety is the moot point of such
an entrenched and passionate debate. Notwithstanding the academic arguments, this debate has
wide scale functional implications with significant public policy relevance.
In most circumstances, even educated women that have borne the brunt of patriarchy, are
hesitant to support progeny in circumstances as horrific as their own. Their reasoning is not
without validity - the structure of patriarchy, even within the hearts of feminists, is one that is
capable of striking deep unsettlement and fear due to its pervasiveness in terms of outreach. Thus
faced with such contextual validity of both arguments, in the context of conceptualising a
mutually agreeable feminist position, the task of co-opting views so logically inconsistent with
each other complicates the ability of different notions of feminism to appear coherent and
consistent, in terms of a final policy advocacy.
Empirical evidence supports this hypothesis - in China, the higher the literacy rate in a
province, the greater the prevalence of gendercide (The Economist, 2010). In India, some of the
most literate states such as Gujarat, Rajasthan and Maharashtra all have the highest incidence of
gendercide. Such disparate empirical evidence makes it difficult to feed it into a coherent theory
of how patriarchal values affect and accentuate the prevalence of gendercide. Sociologists
therefore, especially those who have long established a departure from positivist notions of social
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reality, account for such disparate empirical evidence as a manifestation of symbolic interactions
between social agents and institutions, both of which interact and negotiate meanings in the
marketplace of ideas. Feminism though, due to its problem orientation, would find it difficult to
exhibit such exploratory flexibility and still not lose its problem focus, to understand and
mitigate the dominance of patriarchal values in such societies.
There are therefore many explanations to the Indian middle class situation; the most
convincing of them being that smaller families combine with greater wealth to reinforce the
imperative to produce a son. When families are large, at least one male child will doubtless come
along to maintain the family line. But if there is one or two children, the birth of a daughter may
be at a son's expense. So, with rising incomes and falling fertility, more and more people live in
the smaller, richer families that are under the most pressure to produce a son (The Economist,
2010).
5. PATRIARCHY
IN
THE
EVOLUTION
OF
PERSONAL
LAWS
AND
CHALLENGES POSED TO WOMEN

The plurality of Indian culture, interwoven by a plethora of customs and traditions has led
to pluralistic legal ideologies. Personal laws are a jurisprudential negotiation between, at one
level, community and state law, wherein neither took rigid pro- or anti-women stances
uniformly, and the evolution has been an interactive force of not just the laws, but also the
various patriarchal norms and socio-economic underpinnings. But at yet another level, personal
laws in India are a tight mesh between codified laws and fluid customs (Agnes & Ghosh, 2012)
in Indian womans life is quite intricately trapped in the web of familial obligations, natal
relationships, community allegiances and a notion of fear that has been instilled which makes her
fear backlash or societal retribution. As their lives revolve around communities, customs and
traditions are an integral part of their existence, and thus absolutist and grand abstractions of
laws, rights and justice arent particularly applicable directly to the lives of Indian women,
especially given that ostracism is a very real threat that they face on a regular basis from both
within their familial structures, and from broader societal structures.
Ancient Hindu law, that has its origins in Manu, often directly discriminates against
women and annihilates their claim to property or inheritance by treating them as dependent.
Property was managed by the head of the family, the karta, for the benefit of the entire family,
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including the female members, under ancient Hindu law (Agnes, 2011). Since women did not
form part of the traditional joint family property, they could not demand partition. Thus, the
rights of women under this system were quite meager, and close to non-existent.
However, women retained the right to be maintained, and a right to residence, in the
system of joint property ownership. Even under circumstances of remarriage, the husband was
legally obliged to the first wife in terms of maintenance. In situations such as cruelty or adultery,
women had a right to claim separate residence and maintenance. This provision was given legal
statutory recognition through the Hindu Womens Separate Residence and Maintenance Act,
1946. There were other communitarian interfaces with respect to ancient Hindu law, though. The
concept of Stridhan is key to our understanding of the subject matter in this regard. One of the
most salient features of stridhan property was its line of descent. After the womans death, it
devolved firstly to an unmarried daughter and then to a married daughter, who is not provided
for, followed by a married daughter who is provided for (Agnes, 2002).The system was such that
a son or male heir could only inherit property in the absence of direct female descendants. This
demonstrates the system of constant struggle between the smritikars and the patriarchal norms in
the society that create subversions.
In a stark departure from the reformist liberal notion of the colonial system, judicial
interventions with regard to Stridhan in fact led to the curtailment of the inheritance rights of
Hindu women. The notion of concept of devolving stridhan on the male heirs was borrowed from
English common law, which allowed the male relatives to challenge all property dealings by the
Hindu widows (Agnes, 2011). There is a wealth of the body of case law wherein the higher
judiciary decided to devolve stridhan to the male heirs, despite contrary decisions in lower
courts. Some of those decisions are below:
In 1868, in Srinath Gandopadhaya v. Sarbamangala Debi, the Calcutta High Court held that
once a stridhan property devolves upon a heir, it loses its character as stridhan and devolves as
per ordinary rules of Hindu law. In 1874, in Gonda Kooer v. Kooer Gody Singh a similar
pronouncement was given where the widow lost her right to dispose of the stridhan by will, and
upon her death it would devolve on her husbands heirs. In 1873, in Deo Prashad v. Lujoo Roy,
the court ruled that the property inherited by a daughter from her father is not stridhan. In 1874,
in Dowlut Kooer v. Burma Deo Sahoy, the principle was extended to the property inherited by an
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unmarried daughter from her mother.

The notion of stridhan property was thus subverted through patriarchal collusions aided by
colonial judicial decisions. Most women in the Indian context are blissfully unaware of the fact
that the constitution provides them with the legal rights to inherit land. It is important to note that
property or land is not just a matter of a piece of paper awarding them ownership rights. It is
about power, security, equality and opportunity (Fineman, 1995). Those women who know they
have a right to land say that powerful social customs prevent them from asking for their share.
Even when the women receive land in inheritance, it is invariably much less than an equal share.
Women are likely to get more land as widows than as daughters. There seems to be a larger level
of social acceptance emerging that a widow has moral rights to claim and get her late husbands
share of land. However, this is not yet a dominant social trend.
The codification and constitutional validity of the inheritance laws that affects a womans
position in the society in terms of her property rights were given by the Hindu Womens Rights
to Property Bill in 1937. This bill was introduced by the social reformist to empower the status of
the oppressed widows in the society. However the enactment of the bill did not serve the original
purpose of diluting the subversions of stridhan. It was in 1956 that the Hindu Succession Act was
introduced which improved the position of the daughters and widows in the family. The very
preamble of the Act codified the law relating to intestate succession among Hindus. The Act
aims to lay down a uniform law of succession whereas the attempt has been made to ensure
equality inheritance rights between sons and daughters. The Hindu Succession Act reformed the
Hindu personal law and gave women greater property rights, allowing her of ownership rights
instead of limited rights in property. However, the enactment of the law in 1957 did not lead to
many social changes as women hardly got any recognition in terms of the land that the
households owned with respect to the agricultural landholding (Basu, 2011).
In 2005, the Hindu Succession Act was amended to give four clear rights to the women
with respect to their property rights:
(A) Women are coparceners at par with men;
(B) A woman can inherit agricultural land from her parents at par with her brothers;
(C) A woman can also inherit the self-acquired agricultural land of her deceased husband;
and
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(D) A widow who is remarrying can inherit the land of her deceased erstwhile husband.
Thus the amendment of Hindu Succession Act of 1956 in 2005 was a total commitment for
the women empowerment and protection of women's right to property. Like Mitakshara School
of Hindu Law opened the door for the women to have the birthright in the family property like
the son, so did the amended act within an Indian socio-legal context. The women were vested
with the right of control and ownership of property beyond their right to sustenance. The real
question that still prevails and needs to be addressed is that whether the legislative procedures
are good enough for the women seeking their inheritance rightfully owned by them. In rural
areas the agricultural lands are rarely in the name of the women in the household even though
they are also farmers putting equal sweat and blood in the cultivation of the crops. Land matters
to these women not only in her own economic benefits but also in giving them the power to deal
with the social challenges that they face. Land ownership would give them recognition as a
farmer, thereby increasing their chances of getting a bank loan or other support programs from
the state and lead to financial inclusion. But there are several issues which bars them to ask for
their rights. This is a fight against their own dear ones the husband, the in-laws, their children
etc. Empirically, women say that if they assert their right to inherit land, they will cause conflict
in their families. Their brothers and extended family will see them as greedy. Should their
marriages fail or should they need to rely on their brothers for future help, their pleas for
assistance might be dismissed. This fear is so pervasive that they would not want to inherit land
because they fear it would create conflict in the family and community even though it could
help them climb out of poverty.
6. RESPONSE TO PATRIARCHY
There are two ways of combating patriarchy within the Indian context. One that is focused
primarily on reforming from within the society, and one through active and external state
intervention. Of course, given the nature of the institution of patriarchy, both need to work in
conjunction.
Feminist Responses to Gendercide
I deplore the horrible crime of child murder ... No matter what the motive, love of ease or a
desire to save from suffering the unborn innocent, the woman is awfully guilty who commits the
deed.-Susan B. Anthony (1869)
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RULJ (2015) Vol. 1.4
Early feminists did not believe that abortion was a womans right. On the contrary, they
were of the belief that womens equality would end abortion for good. Elizabeth Cady Stanton
(18151902), whose Declaration of Sentiments (1848) is one of the leading early feminist
works, explains in a letter to a supporter: When we consider that women are treated as property,
it is degrading to women that we should treat our children as property to be disposed of as we see
fit. Although the early feminists expressed an undeniable opposition to all forms of abortion,
they were followed decades later by a new breed of left-leaning feminists who have promoted
abortion as a means of identity politics, economics and sexual liberation. Whether such a stance
dilutes the primary agency of arguments towards a normative conception of women's agency, is
debatable, and the exact nature of the conclusion being dependent on ideological placement of
the agency of a woman, further complicates the coherence of a feminist stance on this issue
(Michelman, 1988). Roe v. Wade and the struggle of the American feminist movements in
particular, brought this issue to the forefront.
The pro-choice position therefore argues in a vacuum, where there is no entrenched
structures of patriarchy. The right to choose ignores that consent can be manufactured, and that
the notion of agency within a patriarchal set up is not always free or informed. This is best
understood through evidence obtained from a survey conducted in India in 1999. One third of
those without children said they would prefer to have a son, two-thirds had no preference and
only a residual indicated their preference for a daughter. Polls carried out in Pakistan and Yemen
yielded similar outcomes. (The Economist, 2010)
Thus, the Indian feminist movement cannot morally campaign for agency or free choice as
the western school of thought so commonly does. The patriarchal entrenchment of norms within
Indian society more often than not allows for this sort of western campaigning to be utilised in a
pernicious ways to kill more baby girls. Just as the tool of family planning became a tool of
patriarchy, so will the Indian feminist movement become a pawn to the hegemonic structure of
patriarchy should the western notion of free choice manifest in the way that it has within the
western feminist movement.
States Response to Feminism and Various Policy Implications
In the context of property rights for women in the Indian context: given the strong social
customs that prevent women from getting a share of their parents land, robust support systems
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are needed to help women stand up for their rights and begin to claim the land that is rightfully
theirs. The government of India has started this by establishing womens selfhelp groups, the
Mahila Samakhya Program in twelve states. These village-level groups support women dealing
with a variety of challenges, including alcoholic husbands, domestic violence, unfair labor
practices, and disrespected property rights. Where microfinance groups are strong, throughout
Odisha, Bihar, Andhra Pradesh, Tamil Nadu and West Bengal, they offer another opportunity to
educate and support women on their land rights. Local officials, particularly revenue officials,
need to be aware of the challenges women face, and should be trained to support womens
claims to land. Many local revenue officials are not knowledgeable about womens rights.
Moreover, educating both young boys and girls about their equal inheritance right will help
ensure that they support their mothers claim to their family land. Both of these approaches
interact differently with different levels of society. With respect to state intervention, the
following approaches can be applied. The implementation of the law has to be done pro-actively
to ensure womens equal rights especially in rural areas with farmers.
Prioritizing the property law for women will also help them get legal protection for leasing
out their lands to increase the rate of investment. Programmes to end violence against women
must take equal property rights as a key programme intervention. The dignity of a woman
(sammaan) is highly correlated with property (sampatti). Domestic violence would reduce
considerably if a woman has financial independence in terms of alienable property.Women must
be recognized as farmers at par with men, and all state and market support in terms of credit,
technology, insurance and training must be provided to women farmers without any
discrimination. With respect to societal change, grassroot womens movements could help
spread awareness amongst women and also give them the opportunity to unite together to
demand their rights. Enhancing access to legal literacy and information relating to womens
rights and entitlements in society with a view to enhance their participation on an equal footing
in all areas is a desirable policy tool.
The last section of the paper deals with the empirical and anecdotal divergence of women
empowerment in India. It highlights how women are constantly making efforts to fight against
the deep-seated patriarchy affecting their lives each and every day. On one hand we have women
like Indira Nooyi who have been able to touch greater heights to make India proud, whereas on
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RULJ (2015) Vol. 1.4
the other hand we have thousands and millions of women who are still struggling with issues
pertaining to leading a simple life with dignity, constrained by regressive notions such as the
purdah system. As mentioned above, women always have to negotiate between state law and
community law to get any kind of justice. Most of the times in rural areas, the proliferation of
parallel justice systems can be seen through the existence of Khap Panchayats which are
approached for justice. This is because the procedure is faster and people who do not have any
access to the common law legal community of India, finds it more accessible as a parallel justice
delivery mechanism (UNDP, 2007).
A real life story from Haryana of a woman named Sushma Bhadu who fought against the
purdah system became an inspiration for many such women in the neighbouring villages. "Izzat
dil se hoti hai, muh ko chupaane se nahi" - that's what she preached women around her and
encouraged them to shun away purdah system. To empower these women, she raised a grant of
Rs. 10 lakh to build a training centre in the village and promoted entrepreneurship. Such a leader
amongst them made a difference in the society by going against the prevailing patriarchal system
and made radical reforms to the dominant values of patriarchal construct. In the modern scenario,
in India, women and girls are facing atrocious acts of violence in their homes, schools, on the
way to school and they are even subjected to barbaric acts like rape,domestic violence, forced
marriages and such other prejudices. All these atrocities have several immediate and very long
term consequences which hold back the growth of women and leads to countless obstacles to
their progress (Kurien, 2007).
CONCLUSION
In conclusion, the study shows feminism is a struggle for equality of women, an effort to
make women become like men. The agonistic definition of feminism sees it as the struggle
against all forms of patriarchal and sexiest aggression. This study reveals the growth of Indian
Feminism and its development. Indian women writers have placed the problems of Indian
women in general and they have proved their place in the international literature. The feminist
movement in India has come a long way from the independence movement when it started as just
the abolition of some oppressive practices like Sati pratha and child marriage against women.
We have covered the broad landmark theories of feminism which reflect the western school of
thoughts while contrasting it to the Indian scenario to show the differences between how the
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concept has evolved in the Indian society. Patriarchy and its wide implications have been studied
in the paper by the intersectionality of women with respect to the impact of sexual offenses that
has been dealt in detail to cover the media portrayal of rapes and the power imbalance between
the victim and the offender. Other implications that have been discussed are issues surrounding
gendercide comprising female foeticide, infanticide, dowry related murders and systematic
malnutrition. Patriarchys interaction with the structures of law and family is an interesting area
of convergence of the feminist struggle for rights. Inheritance laws have been studied in the
Hindu religion and the evolution of the law has tried to empower women in society. The
sociological reasons relating to why women do not fight for their property rights has been
studied and recommendations have been made to fight patriarchy not just by state-led
mechanisms but also by grassroot level feminist movements. There are several inspiring
anecdotal references that have been provided to encapsulate the power of role models within the
Indian context. The paper covers a broad cross-sectional study of various manifestations of
patriarchy, and the responses to the same through both state-led and social mechanisms. Given
the all-pervasive and socially permeating nature of the patriarchal institution within society, a
multi-faceted approach rooted in contextual understanding is the need of the hour in Indian
society.
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RAJASTHAN UNIVERSITY LAW JOURNAL

Dr. Manju Koolwal

Five Year Law College, Jaipur)

(Former Judge Rajasthan High Court)

Dr. Sonu Agarwal

Dr. Richa Dangayach

Dr. Veenu Rajpurohit

RULJ (2015) Vol. 1.4

RULJ (2015) Vol. 1.4

RAJASTHAN UNIVERSITY LAW JOURNAL

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ELECTORAL REFORMS, CONSTITUTIONAL VALIDITY & DECRIMINALISATION: A

ANTI-TERRORISM LAWS IN INDIA: ISSUES ON CONSTITUTIONALITY

KESVANANDA BHARATI V. STATE OF KERALA

NATIONAL JUDICIAL APPOINTMENTS COMMISSION ACT, 2014:

JUDICIAL RESPONSE TO WOMENS RIGHTS IN INDIA

ELECTORAL REFORMS IN INDIA- PROSPECTS & CHALLENGES

GIVING EQUAL HEIGHT TO THE THIRD PILLAR : IN THE LIGHT OF MANEKA

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CANONS OF CONSTRUCTION: A DISCUSSION ON THE DIVERSE CONSTITUTIONAL

POLICY ANALYSIS OF THE TELANGANA GOVERNMENTS MANIFESTO

JUDICIAL TREND TOWARDS SENTENCING POLICY IN INDIA

DYNAMICS OF GENDER JUSTICE: PATRIARCHY &FEMINISM IN THE INDIAN

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PANCHAYATI RAJ; THE MAI-BAAP OF INDIAN GOVERNANCE

Assistant Professor of Law, Army Institute of Law, Mohali.

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The right to collect revenues.

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of seats). Fourth, the appointment of State Finance Commission to make recommendations as

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ELECTORAL REFORMS, CONSTITUTIONAL VALIDITY &

3rd Year, Rajiv Gandhi National University of Law, Patiala, Punjab.

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20TH LAW COMMISSIONS 244TH REPORT ON ELECTORAL DISQUALIFICATIONS (2014)

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Lily Thomas v. Union of India, (2013) 7 SCC 653

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Press Information Bureau, VIOLATION OF THE MODEL CODE OF CONDUCT,

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NEED TO INCREASE THE SECURITY DEPOSIT OF CANDIDATES37

Election Commission of India, Proposed Electoral Reforms,

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Anil Bairwal v. Parliament of India, (2013) CCI 640.

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ANTI-TERRORISM LAWS IN INDIA: ISSUES ON CONSTITUTIONALITY

3rd Year, B.A. LL.B. , National Law University, Odisha.

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Kartar Singh v. State of Punjab [1994] 3 SCC 569.

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