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• FEATURED: PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW & NEW
FACE OF MERCY: COMPARATIVE ANALYSIS BETWEEN NIGERIA & INDIA

Olusola Babatunde Adegbite
• FEATURED: CONSTITUTIONAL & LEGISLATIVE FRAMEWORK OF CIVIL

SERVICES IN INDIA IN CONTEMPORARY WORLD SCENARIO
Dr. Niranjan Parida
• FEATURED: NRC IN ASSAM: ANALYZING CONSTITUTIONAL MORALITY &

LEGAL RATIONALITY
Ambar Kumar Ghosh
AMIT SINGHAL
ASWINIKUMAR BAIRAGYA
Indian Constitutional Law Review
EDITION VIII | JULY 2019
Dedicated to the Growth & Evolution of Constitutional Law in India
© Publication of Agradoot for July 2019

Indian Constitutional Law Review [ISSN: 2456-8325] Edition VIII [July 2019]
Editorial Board: Advisory Council & Journal Coordinators
Honorary Advisors
1. Remembering Hon‟ble Justice (Dr) A. S. Anand, 29th Chief Justice of India,
Former Chairman, NHRC
2. Hon‟ble Justice Arjan Kumar Sikri, Former Judge, Supreme Court of India
3. Hon‟ble Justice K. S. Panicker Radhakrishnan, Former Judge, Supreme Court of
India
4. Hon‟ble Justice Prakash Prabhakar Naolekar, Former Judge, Supreme Court of
India, Former Lokayukta, Madhya Pradesh
5. Hon‟ble Justice Peter Mohan Peiris, 43rd Chief Justice of the Republic of Sri Lanka
6. Hon‟ble Justice Kalyan Shrestha, 23rd Chief Justice of the Federal Democratic
Republic of Nepal
7. Prof. (Dr.) Ranbir Singh, Vice-Chancellor, NLU, Delhi
8. Prof. (Dr.) Mahendral Pal Singh, Chancellor, Central University of Haryana
9. Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, NALSAR Hyderabad
10. Prof. (Dr.) R. Venkata Rao, Vice-Chancellor, NLSIU Bengaluru
11. Prof. (Dr.) Shashikala Gurpur, Director, Symbiosis Law School, Pune
12. Prof. (Dr.) A. Lakshminath, Former Vice-Chancellor, CNLU Patna
13. Prof. (Dr.) Sukh Pal Singh, Former Vice-Chancellor, HNLU Raipur
14. Prof. (Dr.) Paramjit Jaswal, Vice-Chancellor, RGNUL Patiala
15. Prof. (Dr.) Rose Varghese, Former Vice-Chancellor, NUALS Kochi
16. Mr. Arvind Datar, Senior Advocate, Supreme Court of India
17. Mrs. Geeta Luthra, Senior Advocate, Supreme Court of India
18. Dr. Adish C Aggarwala, Sr. Advocate & President of International Council of Jurists
19. Ms. Maneka Guruswamy, Senior Advocate, Supreme Court of India
20. Ms. Karuna Nundy, Advocate, Supreme Court of India
21. Prof. S. Sivakumar, Member, 21st Law Commission of India (2016-18)
22. Prof. Michael Keating, Director, Center for Constitutional Change, University of
Aberdeen
23. Prof. Richard Albert, Professor, University of Texas
24. Prof. Andrew James Harding, Professor of Law, National University of Singapore
25. Prof. Madabhushi Sridharacharyulu, Former Central Information Commissioner
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Esteemed Members
1. Dr. Satish Gowda, Senior Professor of Law, P.G. Department of Law, Bangalore
University, Bengaluru, Honorary Member, Advisory Council
2. Dr. Atmaram Shelke, Assistant Professor, Symbiosis Law School, Pune
3. Mr. Mohd Imran, Asst Prof., School of Law & Constitutional Studies, Shobit
University, Meerut
4. Adv. Manjeet Kumar Sahu, Advocate, High Court of Jharkhand
5. Ms. Navtika Singh, Assistant Professor, ICFAI University, Dehradun
6. Adv. S. Basavaraj, Advocate, Karnataka High Court, Daksha Legal Advocates,
Bengaluru, Honorary Member, Advisory Council
7. Ms. Sanya Yadav, Assistant Professor, Amity Law School, Jaipur
8. Mr. Niteesh Kumar Upadhyay, Asst. Professor, School of Law, Galgotia
University, Founder, Knowledge Steez
Founding Board (Permanent Members)

Sameer Avasarala, Founder Editor
Shashank Kanoongo, Founding Editor
Samiya Zehra, Founding Editor
Core Team
Ankita Aseri, Publishing Editor
Anubhuti Maithani, Deputy Publishing Editor
Amit Singhal, Editor-in-Chief
Aswinikumar Bairagya, Deputy EiC
Kriti Johri, Senior Editor
Sr. Associate Editors
Mahvish Shahab Promita Sinha
Associate Editors
Shreetama Ghosh Velpula Auditya Aditi Duggal
Mythili Mishra Ankit Tripathi Mohit Vats
Aanchal Pandey Anisha Singh Anushka Sharma
Aparajitha Jha Lakshmi Menon Naina Nerli
Nipuna Varman Shipra Sayal Sonal Gupta
Tanya Arora
4

Contents
FROM THE DESK OF THE EDITOR-IN-CHIEF ............................................................. 6
PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW, AND THE NEW

FACE OF „MERCY‟: AN EXAMINATION OF THE EXERCISE OF PARDONING POWER
IN NIGERIA AGAINST THE CONSTITUTIONAL DEVELOPMENT IN INDIA ...................... 8
CONSTITUTIONAL & LEGISLATIVE FRAMEWORK OF THE CIVIL SERVICES

IN INDIA IN CONTEMPORARY WORLD SCENARIO ................................................ 37
NRC IN ASSAM: ANALYSING THE QUESTION OF CONSTITUTIONAL MORALITY

AND LEGAL RATIONALITY ................................................................................................... 61
FAKE NEWS: A CLEAR LOOK BEYOND THE VAGUENESS ............................................ 72
THE ESSENTIAL RELIGIOUS PRACTICES DOCTRINE: ITS FALLACY AND

FUTURE .................................................................................................................................. 86
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES &

DILUTION OF SEPARATION OF POWER BY THE SUPREME COURT: A
BENEVOLENT HYPOCRISY................................................................................................... 92
ANALYSING THE PRACTICAL IMPLICATIONS OF A RIGHT TO PRIVACY:

STATE SURVEILLANCE AND CONSTITUTION ................................................................... 99
ENFORCEMENT OF UNCONSTITUTIONAL STATUTES ........................................ 119
BALANCING CONSTITUTIONAL MORALITY AND RELIGIOUS FAITH: THE

DISPUTE OVER RIGHTS AROUND SABARIMALA ISSUE ................................................ 136
VIRTUAL CENSORSHIP IN THE ERA OF ONLINE STREAMING: THE

CHALLENGES AND CONSEQUENCES ..................................................................................... 150

PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW,

AND THE NEW FACE OF „MERCY‟: AN EXAMINATION OF THE
EXERCISE OF PARDONING POWER IN NIGERIA AGAINST THE
CONSTITUTIONAL DEVELOPMENT IN INDIA
Authored by Olusola Babatunde Adegbite*
ABSTRACT
The exercise of pardoning power is one of the most misused constitutional privileges today
the world over. In the last one hundred years of the development of constitutional practice,
the nation‟s Chief Executives have seen this power as a sort of birth-right that can be wielded
as their whims and caprices permit. Nigeria‟s nascent constitutional democracy has not been
spared of this malaise. Given the delicateness of this power, it becomes important that
discussion around its exercise must remain an ongoing debate.
Against this background, this paper examines the exercise of presidential pardoning power
under the Nigerian Constitution, balancing the same with what currently obtains in India,
after years of rich constitutional development. This paper concludes that Nigeria has a lot to
learn from India, particularly with regard to constitutionalising the role of the Judiciary in
the pardoning process.
INTRODUCTION
In nearly all jurisdictions of the world, the exercise of the Presidential pardoning power is a
key feature of the Constitution, with such powers vested exclusively in the nation‘s Chief
Executive often symbolised by the President and Commander-in-Chief1. For instance, in the
more than two hundred years of the American constitutional democracy, the exercise of this
power has remained the exclusive preserve of the United States‘ (US) President2. In a similar
* LL.B (Hons.) (Ife), LL.M (Ife), LL.M, (Cardozo, Yeshiva University, New York), B.L., Ph. D. Candidate,
Faculty of Law, Rhodes University, Grahamstown, Eastern Cape, South Africa, & Lecturer, Department of
Public Law, Faculty of Law, Obafemi Awolowo University, Ile-Ife, Nigeria. Author can be reached at
adegbite@law.cardozo.yu.edu.
1
In some other jurisdictions, the designation of executive powers may be vested in other titular heads such as
the Prime-Minister, Premier, or Head of State. These designations notwithstanding, where an Office had been
vested with executive powers, the location of the presidential power of pardon is most likely to be found in such
an office.
2
Under American law, presidential power of pardon is vested in the US President under the United States
Constitution in Section 2, Article II which provides that the President ―shall have power to grant reprieves and
pardons for offences against the United States, except in cases of impeachment‖. Historically, the power has
8

fashion, in the more than fifty years of Nigeria‘s post-independence constitutional

framework, the presidential power of pardon has remained a major feature of the Executive
arm of government. This is however not a strict rule. Nearly all jurisdictions also provide for
certain ancillary power of pardon, exercisable by the other arms of government i.e. the
Legislature and the Judiciary3. These groups of pardoning powers are however lesser in
significance and as such, are less likely to attract controversy.
According to Duker, the exercise of this power is not designed to be a show of might, but a
demonstration of benevolence4. Notwithstanding Duker‘s position, the reality is that often
when this power is exercised, the politics therein trumps the altruism expected. In every
constitutional framework where this power exists, there are well-marked procedures to be
fulfilled for any grant to be deemed as valid. Usually, these procedures are not limited to the
exercise of presidential powers alone. Many citizens are very much in the dark as to the
constitutional role played by other designated statutory bodies in the procedure to procure a
presidential pardon, and so are quick to see the President as a hero doing all the good. Even
though this misconception does not negate the constitutional place of these bodies, it ends up
breeding Chief Executives who misuse and abuse the power of pardon.
Under the Nigerian Constitution, this misconception and serial abuse have remained a
recurring decimal. Rather than being used as a tool of restorative justice and a re-induction of
erring but remorseful citizens into the society with their full rights and benefits, the use of the
power has been more of political rewards where it is granted, and political witch-hunt, where
it is withheld. It thus becomes necessary to examine the exercise of this power within the
context of the jurisprudential idea of ―what the law ought to be‖, as against, ―what the law
been deployed severally. While President George Washington in 1795 granted pardons to the leaders of the
Whiskey Rebellion, President John Adams extended same to those involved in the Pennsylvania uprising. There
is also President James Madison‘s pardon of La Titte‘s pirates after the war of 1812, as well as President
Andrew Johnson‘s pardon of soldiers who fought for the confederacy during the American Civil War of 1861-
1865. More so, we have President Harry Truman‘s pardon of those who violated the selective service laws
during World War II and President Jimmy Carter‘s pardons of same as an aftermath of the bitterly fought
Vietnam War. For more extensive overview, see generally P.S. Ruckman, Executive Clemency in the United
States: Origins, Development, and Analysis (1900–1993), (1997), 27 (2), Presidential Studies Quarterly, 251 –
271; R. Nida and R. L. Spiro, The President as His Own Judge and Jury: A Legal Analysis of the Presidential
Self-Pardon Power, (1999), 52, Oklahoma Law Review, 197 – 207.
3
For instance, it is a general practice in Nigeria to see Chief Judges grant pardons to prison inmates and other
classes of offenders. The powers so exercised in this regard is derived from both Section 11 of the Police Act,
CAP P29 Laws of the Federation of Nigeria (LFN) 2010, and Section 1 (1) of the Criminal Justice (Release
from Custody) (Special Provisions) Act, Laws of the Federation of Nigeria (LFN) 2010.
4
W.F. Duker, The President‘s Power to Pardon: A Constitutional History, (1977), 18 (3), William & Mary Law
Review, 475.
9

is‖, particularly to see if there can be any role for the judiciary to play in the overall shaping
of the entire procedure.
THE CHARACTER, NATURE, AND SCOPE OF „PARDON‟
The understanding of the term ‗pardon‘ remains as controversial as other words of legal
usage. The term is used interchangeably with other terms like ‗amnesty‘, ‗reprieve‘, and
‗clemency‘. Amnesty is granted to persons who are wanted for criminal charges or subject to
trial but have not been convicted, reprieve5 applies to the suspension of the sentence of a
court for a short period of time, while clemency simply means a manifestation of mercy6.
This definition of clemency establishes the fact that the origin of pardon is to be found in the
idea of ‗mercy‘ as a form of penitence, which is historically rooted in Judeo-Christian
doctrines7. Additionally, as with many other contested phenomena of the beginning of
knowledge, the idea of a pardon was the pre-occupation of early thinkers, jurists, and scholars
theorising about the philosophy of law. Philosophising in this regard, Kant had the following
to say: ―The right to pardon a criminal, either by mitigating or by entirely remitting the
punishment, is certainly the most slippery of all the rights of the sovereign. By exercising it he
can demonstrate the splendour of his majesty and yet thereby wreck injustice to a high
degree. With respect to a crime of one subject against another, he absolutely cannot exercise
this right, for in such cases exemption from punishment constitutes the greatest injustice
toward his subjects‖8.
The development of the concept of pardon is credited to the evolution of the doctrine of
Royal Prerogative under English monarchical practice, which is founded on the root word
‗prerogative‘, meaning ‗discretionary‘9. In explaining what prerogative meant, Locke defined
5
It is important to state that ‗reprieve‘ comes from the French root word ‗reprendre‟, meaning ‗take back‘.
6
J.N. Jorgensen, Federal Executive Clemency Power: The President's Prerogative to Escape Accountability,
(1993), 27 (2), University of Richmond Law Review, 345 – 370, at 347.
7
In the Holy Bible, the idea of mercy is more of a spiritual injunction provided for in a number of passages.
Firstly, in Jeremiah 33:8, the conferment of ‗pardon‘ comes up where it said: ―I will cleanse them from all their
iniquity by which they have sinned against me, and I will pardon all their iniquities by which they have sinned,
and by which they have transgressed against me”. Secondly, pardon can be seen in the account in Luke 23 when
our Lord Jesus Christ was brought before Pontius Pilate, to condemn him. Replying Jesus‟ accusers, Pilate
said, “You have brought this Man to me, as who misleads the people. And indeed, having examined him in your
presence, I have found no fault in this Man concerning those things which you accuse him; No, neither did
Herod, for I sent you back to him and nothing deserving of death has been done by him; I will therefore chastise
him and release him‖. Luke 23: 14-16, Holy Bible, New King James Version. See also Luke 23:43.
8
I. Kant, The Metaphysical Elements of Justice 144 (2nd ed. John Ladd (trans.), Hackett, 1999).
9
It is important to note that at the beginning of the English tradition of royal prerogatives, its grant had little or
nothing to do with mercy. Such prerogatives were either granted in exchange for a payment or as a condition for
joining the army. As the centuries went by, English Monarchs reaffirmed the power of royal prerogative,
10

it as ―The power to act according to discretion, for the public good, without the prescription
of the Law, and sometimes even against it‖10. Flowing from this perception, the evolution of
pardon has been shaped more by the dominance of the Crown‘s prerogative rights which was
later transferred to the Executive branch at the turn of the millennium, and less by the ancient
doctrines of mercy11.
One definition that has helped feather the nest of ‗pardon‘ is that proffered in Ex parte
Wells12 which says, ―a pardon was a work of mercy whereby the king either before attainder,
sentence, or conviction, or after, forgiveth any crime, offence, punishment, execution, right,
title, debt, or duty, temporal or ecclesiastical‖13. Granting the term judicial ornaments, the
Nigerian Court of Appeal14 per Musdapher, J.C.A., (as he then was), in Falae v. Obasanjo
(No. 2)15, while examining the issue of whether General Olusegun Obasanjo was indeed
granted full presidential pardon by General Abdulsalami Abubakar such that he would be
qualified to contest the 1999 Presidential elections, had the following to say:
In Exhibit 11, the Head of State granted Olusegun Obasanjo pardon. The word used
under Section 161 (1) and Exhibit 11 is “pardon”, and in this context, a pardon may
be with or without any conditions. It is clear from Exhibit 11 that the pardon granted
to the 1st Respondent was not made subject to any conditions. In my view, under
Nigerian law, a “pardon” and „full pardon‟ have no distinction16.
The Court now went ahead to define the term as follows:
granting the Crown the absolute power to pardon treason, murder, and other felonies committed in the English
realm. It was however not until the 17th century that the English Parliament was finally able to limit the
Crown‘s power of royal prerogative following the impeachment of Thomas Osborne, Earl of Dandy. The
Parliament in 1678 had erroneously impeached Dandy the Lord High Treasurer of England under King Charles
II, for conspiring with France only to later discover that it was indeed the King that was cutting corners with the
French. The King subsequently pardoned Dandy in order to thwart any attempt by the Parliament to discover his
dipping of hands in the cookie jar. The Parliament was infuriated but could do nothing. Finally, by the 1700 Act
of Settlement the English Parliament was able to stop the grant of royal prerogatives as a means of curtailing the
powers of the Crown to pre-empt impeachments and conceal royal improprieties. See B.C. Kalt, Pardon Me?
The Constitutional Case against Presidential Self-Pardons, (1996), 106 (3), Yale Law Journal, 784.
10
J. Locke, Two Treatise of Government, 1 – 174 (Create Space Independent Publishing Platform, 2013).
11
In this regard, some Scholars have posited that any ground other than that of mercy defeats the whole purpose
of pardon. See K. D. Moore, Pardons: Justice, Mercy, and the Public Interest 188 (New York: Oxford University
Press, 1989).
12
59 US (18 How) 307, 311 (1855).
13
Id. See also E. Coke, The Third Part of the Institutes of the Laws of England 233 (4th ed. London, 1669).
14
It is important to state that the Appeal Court was in this instance sitting as the Presidential Elections Petitions
Tribunal pursuant to Section 239(1)(a), Constitution of the Federal Republic of Nigeria, 1999.
15
(1999) 4 N. W. L. R (Pt. 599), Part 599, 476; See J. Ogunye, Legal Implications of Jonathan‘s Pardon,
Premium Times Newspaper, (Lagos: March 15, 2013), (Oct. 08, 2018)
https://www.premiumtimesng.com/opinion/125017-legal-implications-of-jonathans-pardon-by-jiti-ogunye.html.
16
Id.
11

A pardon is an act of grace by the appropriate authority which mitigates or obliterates

the punishment the law demands the offence and restores the rights and privileges
forfeited on account of the offence…The effect of a pardon is to make the offender, a
new man (novus homo), to acquit him of all corporal penalties and forfeitures annexed
to the offence pardoned. I am of the view, that by virtue of the pardon contained in
Exhibit 11, the disqualification the 1st respondent was to suffer because of his
conviction, has been wiped out. His full civil rights and liberties are fully restored and
accordingly, he has not been caught by the provisions of section 13(1) (h) of the
Decree17.
This definition was certainly inspired by the jurisprudence of pardon under American
Constitutional Law, which flows from the foundation laid by the US Supreme Court in
United States v. Wilson18. This was the first case where the Court will consider the question
of ‗pardon‘19. Here the court defined ‗pardon‘, as ―an act of grace, proceeding from the
power entrusted with the execution of the laws, which exempts the individual, on whom it is
bestowed, from the punishment the law inflicts for a crime he committed‖20. It was following
the Wilson decision, that the court in Ex parte Garland21, further reaffirmed the US
President‘s power to grant pardons. The US Supreme court has however over the years
successfully expanded the perimeters of pardoning powers helping to enrich its exercise22.
17
Id at 495.
18
32 U.S. (7 Pet.) 150 (1833).
19
At the time of writing the American Constitution, the Framer had frowned at any attempt to insert provisions
for pardoning power given that the Americans had fought the English Monarchy to get Self-government.
However, following the influence of key framers like A Hamilton, the pardon found its way into the early drafts.
See A. Hamilton, The Federalist No. 74, (Robert Scigliano ed., 2000) at 475-77; B.C. Kalt, supra 9.
20
Id. at 160.
21
71 U.S. (4 Wall.) 333, 370-71 (1866). The decision in this case, arose from the disagreement that followed
President Andrew Johnson‘s alleged abuse of the pardoning power, where he pardoned thousands of former
Confederate officials after the American Civil War, and the question that arose was whether the US Congress
could limit the President‘s pardoning power.
22
The following cases have been instructive in this regard - United States v. Padelford, 76 U.S. (9 Wall.) 531
(1870); U.S. v. Klein, 80 U.S. 128, 20 L. Ed. 519, 58 S. Ct. 123 (1872); Osborn v. U.S., 91 U.S. 474 (1875);
Knote v. United States, 95 U.S. 149, 24 L. Ed. 442, 2143 (1877); and Ex parte Grossman, 267 U.S. 87, 98
(1925). In properly contextualizing the President‘s power of presidential pardon under American law, two
divergent opinions of the US Supreme court have helped framed its evolution. First is the opinion of Chief
Justice Marshall in United States v. Wilson (supra), where he opined quite profoundly, saying ―A pardon is an
act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual
on whom it is bestowed from the punishment the law inflicts for a crime he has committed?‖ However, in
another decision of the same court in Biddle v. Percovich, 274 U.S. 480, 485 (1927), the court per Justice
Oliver Wendell Holmes offered a quite different interpretation, contradicting the earlier position stating that the
President‘s power of pardon is not a personal act of grace, but rather a constitutional responsibility. In Biddle,
the court opined that a pardon is granted when, ―it is the determination of the ultimate authority that the public
welfare will be better served by inflicting less than what the judgment fixed‖. Despite these divergent views on
the purpose of the pardoning power, one thing the court has been consistent about is that the power is domiciled
in the US President. One may however juxtapose this general understanding with the position of the court in
12

Pardons are granted for a different reason. It may be granted where a President feels a person
is innocent and has only been unjustly punished23, where he feels that though the offender is
guilty the punishment is too harsh24, where it is for political considerations, or generally
where he exercises the power under the banner of forging national interest and unity. The key
thing, however, is that before there can be pardon, there must have been the commission of
an offence and a proper conviction. This point was stressed by the US Supreme Court in
Young v. U.S.25 where the court stated that ―The pardon is of the offence, and as between the
offender and the offended government, shuts out from sight the offending act. But if there is
no offence against the laws of the United States, there can be no pardon by the President‖.26
However, Nigerian courts at a time were reluctant to recognise pardon granted to an accused
person whose appeal was still before the court. This was the situation in Obidike v. The
State27 where the Appeal Court gave an order for the arrest of the Appellant and his execution
pursuant to the orders of the High Court28. This unsavoury position however since been
discarded following the superior reasoning that prevailed in Isibor v. The State29.
The President also has powers to grant a pardon without a need for approval by the
Legislative branch30. Such pardon can be based on certain conditions or granted
unconditionally. This is supported by the early thinking that as part of the development of the
structure of human society, the provision of ‗pardon‘ must be an integral part towards
mitigating justice and advancing the agenda of the State31. Noteworthy is the fact that under
American law presidential pardoning powers extends only to federal offences and not state
Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819 (1896), where holding that the power of amnesty
wasn‘t exclusive to only the Office of the President, it said, ―Although the Constitution vests in the President
„power to grant reprieves and pardons for offences against the United States, except in cases of impeachment,‟
this power has never been held to take from Congress the power to pass acts of general amnesty,‖.
23
M. Strasser, The Limits of the Clemency Power on Pardons, Retributivists, and the United States Constitution,
(2002), 41, Brandeis Law Journal, 85 – 117; H. J. Krent, Presidential Powers, (New York: New York University
Press, 2005); K. D. Moore, supra 12 at 132.
24
S. T. Morison, The Politics of Grace: On the Moral Justification of Executive Clemency, (2005), 9, Buffalo
Criminal Law Review, 1 – 13.
25
97 U.S. 39, 24 L. Ed. 992, 12 S. Ct. 391 (1878).
26
Id.
27
(2001) 17 NWLR (Pt 743) 601 CA.
28
Id.
29
(2002) FWLR (Pt. 98) 843. Here, Ejiwunmi, J.S.C. speaking for the Court had this to say, ―It is clear that the
appellant from the above has been made a free man by the fiat of the Head of State (and) Commander-in-Chief
of the Armed Forces, General Abdul Salami Abubakar on the 5th March 1999. However, having regard to the
verdict of this court in this Appeal, it does now appear that the appellant cannot be punished as provided by law
in respect of the offence for which he stands convicted. It is hoped that deliberate effort would be made in the
future to avoid situations of this kind when exercises of this nature are carried out‖.
30
See Armstrong v. United States, 80 U.S. (13 Wall.) 154, 156 (1871).
31
J. Dinan, The Pardon Power and the American State Constitutional Tradition, (2003), 35 (3), The Polity, 389
– 418.
13

offences32, however, under Nigerian law, such distinction has not been made. It is also
important to state that in terms of effect, a position that enjoys wider appeal is that
presidential pardon not only wipes out the sentence but also the conviction of the person
involved and reinstating him/her to his/her position ab initio as if he/she was never
convicted33.
THE DEVELOPMENT OF PRESIDENTIAL PARDONING POWER IN NIGERIA

AND INDIA – AN APPRAISAL
In Nigeria, the concept of pardon is constitutionalised under the broad heading of

‗prerogative of mercy‘. Upon the attainment of self-government on October 1, 1960, and the
eventual departure of the British colonial powers, the prerogative of mercy immediately
became a prominent feature in all of Nigeria‘s Constitutions as an independent nation.
Though most of the provisions were from the royal prerogative system under the British
Monarchy where the modern legal system was imported into Nigeria, it still took off with the
infant nation as a critical part of the country‘s nascent democratic experience. Thus, while
Section 101 provided for the doctrine under the 1963 Constitution, the 1979 Constitution
located it in Section 161. In the same breath, though the doctrine was supposed to have
eventually been a part of Section 173 of the defunct 1989 Constitution which never saw the
light of day, it later became a reality under Section 175 and 212 of the 1999 Constitution.
Under these relevant legislations the exercise of presidential pardon exists as an instrument of
power used by the government to unconditionally set free prisoners of conscience as well as
political detainees. Though Nigeria‘s constitutional history, it can be seen that the doctrine
has since evolved as an instrument of power created by the Legislature, but located in the
Executive. Though, it may be a consistent argument that the whole idea of the doctrine works
great hardship on the concept of justice given notable instances of misuse by the Executive, it
32
W. F. Duker, supra 4.
33
S.A.M. Ekwenze, Presidential Pardon and Prerogative of Mercy: A Necessary National Soothing Balm for
Social Justice, (Feb. 11, 2019) https://coou.edu.ng/resources/presidencial-pardon-and-prerogative-of-mercy.pdf.
This position was established by Justice Field in Ex parte Garland (supra), where he said, ―a pardon reaches
both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it
releases the punishment and blots out of existence the guilt; so that in the eyes of the law the offender is as
innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties
and disabilities consequent upon conviction from attaching. If granted after conviction it removes the penalties
and disabilities and restores to him all his civil rights‖. See also United States v. Padelford, 76 U.S. (9 Wall.)
531, 543 (1869), where the court held that that pardon, ―purged the petitioner of whatever offence against the
laws of the United States he had committed . . .and relieved him from any penalty which he might have
incurred‖.
14

still remains a potent tool of restitution and restoration under Nigeria‘s criminal justice
system and has today become an abiding phenomenon in the country‘s constitutional set-up.
Any examination of the Nigerian and Indian constitutional frameworks is bound to be deeply
unraveling as both countries have a lot in common. Firstly, both are very large democracies
accounting for about one-fifth of the population in their different sub-continents; Secondly
both have their umbilical cords tied to the English Commonwealth, given that both were
colonised by Great Britain; both are complicatedly multi-ethnic, multi-cultural, and multi-
religious, with the different component units of their countries fractured along very
tendentious and tempestuous lines; both enjoy a shared history of political instability, and
constitutional interruptions that has given birth to different republics and political
dispensations; both have remarkably huge potential in terms of natural and human resources,
through their present-day realities appear poles apart; and lastly, both are leading common
law jurisdictions having deep similarities in major aspects of their legal systems,
constitutional framework, and judicial architecture. It can, therefore, be seen that comparing
both constitutional jurisdictions have tantalising prospects as well as the huge benefit of
advancing knowledge in the area concerned.
Nigeria
Presidential pardoning power has always been a feature of all Nigerian Constitutions,
inclusive of both the 1963 Constitution34 and 1979 Constitution35. Under the 1999 Nigerian
34
The 1963 Republican Constitution was in all essential respect based on the 1960 Independence constitution.
The main difference was only in the fact that Nigeria dropped the Queen of England as the head of her
government and assumed the Republican status with a non-executive President as the ceremonial Head of State
and consequently, Nigerian no longer owed their allegiance to the Queen of England, but to the Federal
Republic of Nigeria. The key challenge however was the continuous struggle for power between these two
offices given the very shaky pact between the Prime Minister, Alhaji Sir Tafawa Balewa and Dr. Nnamdi
Azikiwe on the one hand, and their political parties i.e. the Northern Peoples‘ Congress (NPC) and National
Convention of Nigeria and the Cameroon (NCNC) on the other hand, which eventually saw to the collapse of
Nigeria‘s First Republic. See C. Okadigbo, Major Causes of Leadership Failure, in Power and Leadership in
Nigeria, (Enugu: Fourth Dimension Publishing Co. Ltd., 1987), 134; J.O. Akande, Introduction to the
Constitution of the Federal Republic of Nigeria, 1999, (MIJ Professional Publishers Ltd. 2000), 4. See P.A.O.
Oluyede, Constitutional Law in Nigeria 108 (1st ed. Evans Brothers Nig. Publishers Ltd., 1992).
Under the 1963 Republican Constitution, Section 101 provided for the grant of prerogative of mercy. In this
respect, the President may – “(a) grant to any person concerned in or convicted of any offence created by or
under an Act of Parliament a pardon, either free or subject to lawful conditions; (b) grant to any person a
respite, either indefinite or for a specified period, of the execution of any punishment imposed on that person for
such an offence;(c) substitute a less severe form of punishment for any punishment imposed on that person for
such an offence; or (d) remit the whole or any part of any punishment imposed on that person for such an
offence or of any penalty or forfeiture otherwise due to the state on account of such an offence‖. Section
101(1)(a)(b)(c)&(d), The Constitution of the Federation, 1963, No.20; The Constitution also provides that,
―Subject to the provisions of subsection (3) of this section, the powers of the President under subsection (1) of
this section shall be exercised by him in accordance with the advice of such member of the Council of Ministers
15

Constitution36, presidential pardoning power is exclusively vested in the President. Under this
Constitution, presidential pardoning power is unfettered, just as it obtains under the American
Constitution37. Section 175 of the Constitution provides that the President may -
(a) grant any person concerned with or convicted of any offence created by an Act of the
National Assembly a pardon, either free or subject to lawful conditions;
(b) grant to any person a respite, either for an indefinite or for a specified period, of the
execution of any punishment imposed on that person for such an offence;
(c) substitute a less severe form of punishment for any punishment imposed on that person
for such an offence, or
(d) remit the whole or any part of any punishment imposed on that person for such an
offence or of any penalty or forfeiture otherwise due to the State on account of such an
offence38.
The powers of the President under sub-section (1) of this section shall be exercised by him
after consultation with the Council of State39. The President, acting in accordance with the
advice of the Council of State, may exercise his powers under sub-section (1) of this section
as may from time to time be designated in that behalf by the President, acting in accordance with the advice of
the Prime-Minister‖. Section 101(2), The Constitution of the Federation, 1963, No.20.
35
The 1979 Constitution was a radical departure from all other Nigerian Constitutions, in the sense that it was
the first Constitution under which Nigeria would practice a Presidential system of government. Under this
Constitution, the grant of prerogative of mercy is provided for under Section 161 and to this extent, the
President may – “ (a) grant any person concerned with or convicted of any offence created by an Act of the
National Assembly a pardon, either free or subject to lawful conditions; (b) grant to any person a respite, either
for an indefinite or for a specified period, of the execution of any punishment imposed on that person for such
an offence;(c) substitute a less severe form of punishment for any punishment imposed on that person for such
an offence; or (d) remit the whole or any part of any punishment imposed on that person for such an offence or
of any penalty or forfeiture otherwise due to the State on account of such an offence‖. See Section 161 (1) (a)
(b) (c) & (d), the Constitution of the Federal Republic of Nigeria, 1979. The Constitution further provides that
―The powers of the President under subsection (1) of this section shall be exercised by him after consultation
with the Council of State‖. See Section 161(2).
36
This Constitution is cited as, ―Constitution of the Federal Republic of Nigeria (Promulgation) 1999, No.24‖.
This Constitution was entirely a creation of the Military government of General Abdulsalami Abubakar and
upon being signed into law, was promulgated as ―Constitution of the Federal Republic of Nigeria
(Promulgation) Decree No.22, 1999‖, which came into force on the 5th of May, 1999. It is essential a remake of
the 1979 Constitution, with very little areas of distinction.
37
The provisions of Article II, Section 2, of the US Constitution which provides that, ―The President shall have
Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment,
has been a subject of severe criticisms on the grounds that it seeks to take over the powers of the Legislature
and Judiciary‖. See S.L. Carter, The Iran-Contra Pardon Mess, (1992), 29, Houston Law Review, 884.
38
Section 175 (1) (a) (b) (c) & (d), Constitution of the Federal Republic of Nigeria (Promulgation) 1999, No.24.
It is noteworthy that the same power is donated to the Governor of a State in Section 212 (1) (a) (b) (c) & (d).
39
Section 175(2).
16

in relation to persons concerned with offences against the Army, Naval, or Air-force law or
convicted or sentenced by a court-martial40.
In furtherance of this power, it provides that the President shall exercise this power in
accordance with the advice of the Council of State, Section 153(1)(b) of the Constitution,
provides for a body known as the ―Council of State‖, who is to advise the President in the
exercise of his powers with respect to prerogative of mercy (amongst other powers), and
whenever requested to do so on the maintenance of public order within the Federation or any
part thereof and on such other matters as the President may direct41. The quorum of the
Council of State meeting shall not be less than one-third of the total number of members of
that body at that meeting, and that a member of the body shall be entitled to one vote42. On
the part of the Governor of a State, the procedure provides that the power of the Governor
under sub-section (1) of this section shall be exercised by him after consultation with such
Advisory Council of the state on the prerogative of mercy, as may be established by the law
of the state43.
Equally, as a matter of procedure, the pardon granted must be documented in a subsidiary

instrument, properly executed by the President, gazetted and published in an Official Public
Notice of the Federal Government. The Council of State, under the Third Schedule of the
1999 Constitution comprises of the President, Vice President, all state Governors, former
Presidents, and Heads of State, all former Chief Justices of Nigeria, the Senate President,
Speaker of the House of Representatives, and the Attorney-General of the Federation. Thus,
in line with the procedure under the Constitution, it is clear that the authority that exercises
the power of pardon in relation to offences created by an Act of the National Assembly is the
President. The Council of State merely advises the President.
It is noteworthy to state that a person convicted of murder must have exhausted his/her right
of appeal in the court system before such can be considered for the President‘s or Governor‘s
grant of the prerogative of mercy. This has found judicial expression in the Supreme Court
case of Monsura Solola & Anr. v. The State44, where the court considered and dismissed the
appeal of two convicted murderers. In this case, four people (a father, his two sons and a
nephew) had been charged for the 1994 murder of a teenage hunchback, the friend of the
40
Section 175(3).
41
See Paragraph B, Section 6(a) (ii) and (b) of Part I of the Third Schedule to the Constitution of the Federal
Republic of Nigeria, 1999 (as amended).
42
See Section 159 (1 & 2), Constitution of the Federal Republic of Nigeria, 1999.
43
Section 212(2), Constitution of the Federal Republic of Nigeria, 1999.
44
(2005) 5 NSCR (Vol. 1).
17

younger son. The charges against the younger son were withdrawn and he was used as a state
witness. The other three went to trial and were convicted on the evidence presented. All three
appealed unsuccessfully to the Court of Appeal and by the time they further appealed to the
Supreme Court, the father had been granted the President‘s Prerogative of Mercy in 1999.
Edozie, J.S.C while delivering the lead judgment made the following remarks concerning the
exercise of the prerogative of mercy:
It needs to be stressed for future guidance that a person convicted for murder and
sentenced to death by a high court and whose appeal is dismissed by the court of
appeal is deemed to have lodged a further appeal to this court and until that appeal is
finally determined, the head of state or the governor of a state cannot, pursuant to
sections 175 (sic) or 212 of the 1999 Constitution, as the case may be, exercise his
powers of prerogative of mercy in favour of that person. In the same vein, such person
cannot be executed before his appeal is disposed of. It is hoped that the prison
authorities will be guided by this advice.
India
The Constitution of India vests presidential pardoning power in the President. Specifically,
the Constitution provides that:
(1) The President shall have the power to grant pardons, reprieves, respites or remission
of punishment or to suspend remit or commute the sentence of any persons convicted
of any offence- (a) in all cases where the punishment or sentence is by a court-
martial; (b) in all cases where the punishment or sentence is for an offence against
any law relating to a matter to which the executive power of the Union extends; (c) in
all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall after the power conferred by law on any
officer of the Armed Forces of the Union to suspend, remit or commute a sentence
passed by a Court Martial.
(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend remit or
commute a sentence of death exercisable by the Governor of a State under any law for
the time being in force.45,
45
Indian Const. art. 72.
18

Given India‘s robust federal structure, the same power is given to the State Governors, with
the Constitution stating that:
The Governor of a State shall have the power to grant pardons, reprieves, respites, or
remissions of punishment or to suspend, remit or commute the sentence of any person
convicted of any offence against any law relating to a matter to which the executive
power of the State extends46.
Under the Indian Constitution, the power between the President and Governor appears to
have equal potency as a request for pardon can be made to either47. The President does not
enjoy any discretion but exercises this power in line with advice from his/her ministers, based
on any of the following grounds - (1) Interest of society and the convict; (2) The period of
imprisonment undergone and the remaining period; (3) Seriousness and relative recentness of
the offence; (4) The age of the prisoner and the reasonable expectation of his longevity; (5)
The health of the prisoner; (6) Good prison record; (7) Post conviction conduct, character and
reputation; (8) Remorse and atonement; (9) Deference to public opinion.
JUDICIAL REVIEW AND PRESIDENTIAL PARDONING POWER
Judicial review is defined as a court‘s power to review the action of other branches or levels
of government, especially the court‘s power to invalidate legislative and executive actions as
being unconstitutional48. It is also a court‘s review of a lower court‘s or an administrative
body‘s factual or legal findings. Judicial review is also tied to the concept of de novo judicial
review, which is the court‘s deferential review of an administrative decision, usually through
a review of the administrative record plus any additional evidence the parties present.
The foundation for what is today regarded as the doctrine of judicial review was laid in the
US case of Marbury v. Madison49, where the Supreme Court institutionalised its power of
46
47
Indian Const. art. 72(3).
48
Black‘s Law Dictionary 976 (10th ed. Minnesota, US: Thomson Reuters, Bryan A. Garner, 2014).
49
5 US (1 Cranch) 137 (1803). This case is regarded as the most important in US Constitutional Law. Before
the Marbury rule, the US Supreme Court had earlier in 1796, had the occasion to examine the constitutionality
of the Carriage Act of 1794, a law passed by congress in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796). In
its judgement, the court held that the Act was constitutional. According to Jack Rakove, ―Hylton v. United
States was manifestly a case of judicial review of the constitutionality of legislation, in an area of governance
and public policy far more sensitive than that exposed by Marbury, and it was a case whose implications
observers seemed to grasp‖. The court in exercise of its power of judicial review, also had occasion to strike
down a supremacy legislation in Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796) and further examined the
implication of a state law when considering it against a State Constitution in Cooper v. Telfair, 4 U.S. (4 Dall.)
14 (1800). See J. Rakove, The Origins of Judicial Review: A Plea for New Contexts, 49, Stanford Law Review,
19

judicial review as derived from Article 6 of the US Constitution by striking down certain
relevant portions of the Judiciary Act of 1789, which in the opinion of the court was in direct
conflict with the US Constitution50. The US Chief Justice at that time, John Marshall opined
that ―it is emphatically the province and duty of the judicial department to say what the law
is‖, as well as the court‘s duty to override any legislation passed by Congress that was not in
accordance with the provisions of the Constitution51. The court thereby laid a new law in
which US Federal courts could refuse to apply any legislation that conflicted with the US
Constitution.
In operation, the doctrine operates as a dimension of the principle of checks and balances in
which the judicial arm seeks to safeguard public interest whenever it clashes headlong with
the private interest of those in power52. It has also been argued to be a necessary defence of
at 1039-1041. Importantly also, in the years preceding Hylton, even though there was yet a Federal Judicial
pronouncement on this power of the court, judges in state courts had applied the doctrine in a way by
invalidating certain state legislations that were deemed to have violated those State‘s Constitution. See Currie,
The Constitution in the Supreme Court: The Powers of the Federal Courts, 49, (1982), University of Chicago
Law Review, 646-656; See S. B. Prakash and J.C. Yoo, The Origins of Judicial Review, (2003), 70 (3), The
University of Chicago Law Review, 887-982.
50
The Court struck down Section 13 of the Judiciary Act of 1789 which expanded the scope of its powers of
original jurisdiction and which would have empowered it to grant the writ of mandamus sought by Williams
Marbury, but with also clashed with Article III, Section 2 of the US Constitution. The Court in reaffirming the
Supremacy of the US Constitution over all other laws invalidated this Statute, consequentially stripping itself of
the power to grant Marbury‘s prayers.
51
According to Mr. Justice Marshall, the constitutional limitations imposed on the powers of the legislature
would be meaningless, unless such is deemed as rendering void any act of the Parliament repugnant to them,
and to achieve this goal, it is the province and duty of courts to say what the law is. He further said, that when
faced with a conflict between a law and the Constitution, the court must determine which of these conflicting
rules governs the case, just as it does in deciding conflicts between earlier and later statutes and judicial
precedents, and that since the Constitution is superior to any conflicting act of the legislature, the court in the
process of adjudication must apply the former, thus invalidating the latter. Where the reverse is the case, the
written constitution would be reduced to nothing. See S.H. Kadish, Judicial Review in the High Court and
United States Supreme Court, (1959), 2 (4), Melbourne University Law Review, 1-34.
52
It has been argued that in welcoming the doctrine, its application should not just be a matter of actions in
violation of the Constitution, but essentially that of Statutes in general so made to violate the entitlements of the
people. In this regard, Hamilton made the following powerful statement, ―But it is not with a view to infractions
of the Constitution only, that the independence of the judges may be an essential safeguard against the effects of
occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of
particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistracy is of
vast importance in mitigating the severity and confining the operation of such laws. It not only serves to
moderate the immediate mischief of those which may have been passed, but it operates as a check upon the
legislative body in passing them; who, perceiving that obstacles to the success of iniquitous intention are to be
expected from the scruples of the courts, are in a manner compelled, by the very motives of the injustice they
meditate, to qualify their attempts. This is a circumstance calculated to have more influence upon the character
of our governments, than but few may be aware of‖. Extending his thoughts, Hamilton further said, ―The courts
were designed to be an intermediate body between the people and the legislature, in order, among other things,
to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and
peculiar province of the courts. A Constitution is, in fact, and must be regarded by the judges, as a fundamental
law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act
proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two,
that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the
Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
20

the principle of federalism53. This decision enhanced the early development of the doctrine
making its application in the US possible even in several other contexts54. Also, within the
two leading legal traditions, i.e. the Civil and Common law jurisdictions, the doctrine has
evolved differently while in application, its deployment has also been in a variety of forms.
Essentially, it has had a long and chequered history55, but notwithstanding this, it has been
beneficial in terms of how power in a democratic society should be organised and managed56.
Even though the Marbury decision directly related to legislation passed by the Parliament, it
was the watershed moment in which the US Apex court established its overriding authority
Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only
supposes that the power of the people is superior to both; and that where the will of the legislature, declared in
its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be
governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws,
rather than by those which are not fundamental. Accordingly, whenever a particular statute contravenes the
Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former. The
courts of justice are to be considered as the bulwarks of a limited Constitution against legislative
encroachments‖. A. Hamilton, J. Jay, & J. Madison, The Federalist Papers, No. 78, (Modern Library ed. 1937).
53
S. B. Prakash and J.C. Yoo, The Puzzling Persistence of Process-Based Federalism Theories, (2001), 79,
Texas Law Review, 1459. On deep controversies that have arisen over the justiciability of applying the doctrine
in US Federal/State‘s contests and criticisms of the Court‘s Federalism Jurisprudence, see generally H.
Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of
the National Government, (1954), 54, Columbia Law Review, 543; J. H. Choper, The Scope of National Power
vis-a-vis the States: The Dispensability of Judicial Review, (1977), 86, Yale Law Journal, 1552; C. Fried,
Foreword: Revolutions?, (1995), 109, Harvard Law Review, 13; H. P. Monaghan, The Sovereign Immunity
Exception, (1996), 110, Harvard Law Review, 122-132; L. D. Kramer, Putting the Politics Back into the
Political Safeguards of Federalism, (2000), 100, Columbia Law Review, 215; L. A. Baker and E. A. Young,
Federalism and the Double Standard of Judicial Review, (2001), 51, Duke Law Journal, 75.
54
Following the powerful decision in Marbury, the position of the court for a number of years on the doctrine
was characterized by a sort of ambivalence. For instance, in Dred Scott v. Sandford, 60 U.S. (19 How.) 393
(1857), it appeared the court had contradicted its earlier position. However, the doctrine gained further
momentum in Fletcher v. Peck, where a State statute was declared unconstitutional10 U.S. (6 Cranch) 87
(1810). The same decision was adopted in Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122 (1819), McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824). The Court
attained a further height in Martin v. Hunter‘s Lessee, 14 U.S. (1 Wheat.) 304 (1816), when it held that US
Federal Courts, pursuant to Article III of the Constitution, have the powers to hear all cases arising under the
Constitution and laws of the United States, and that following the exercise of their jurisdiction, the Supreme
Court has appellate jurisdiction to hear all case, even when earlier began in state or federal courts. This decision
established the rule that the Supreme Court can review any decision of state courts involving questions of
Federal law.
55
B. Friedman, The History of the Counter-majoritarian Difficulty, Part One: The Road to Judicial Supremacy,
(1998), 73, New York University Law Review, 333.
56
There is an avalanche of literature on the historical development and application of the doctrine. For a general
reading, see C. Warren, Congress, The Constitution, and The Supreme Court (Boston: Little, Brown & Co.
1925); C. G. Haines, American Doctrine of Judicial Supremacy (2nd ed. Berkeley: University of California
Press, 1932); W. W. Crosskey, Politics and the Constitution in the History of the United States (Chicago:
University of Chicago Press,1953); R. Berger, Congress v. The Supreme Court (Cambridge, MA: Harvard
University Press, 1969); J. H. Ely, Democracy and Distrust: A Theory of Judicial Review 87-88 (Cambridge,
MA: Harvard University Press, 1980); L. W. Levy, Original Intent and the Framers' Constitution (Macmillan
Publishers, 1988); S. Snowiss, Judicial Review and the Law of the Constitution (New Haven: Yale University
Press, 1990); C. N. Tate, Comparative judicial Review and Public Policy: Concepts and Overview, in D. W.
Jackson & C. N. Tate (eds.) Comparative Judicial Review and Public Policy, (1992), 3 - 4; C. Wolfe, The Rise
of Modern Judicial Review (Rowman & Littlefield, 1994); E. S. Corwin, The Doctrine of Judicial Review: Its
Legal and Historical Basis and Other Essays (Piscataway, NJ: Transaction Publishers, 2014).
21

over the act of public officials and governmental actions in general57. Specifically speaking,
the Marbury rule defined the powers of the court to overturn a Legislative act or Statute as
well as any action of the Executive arm deemed a violation of the Constitution58. It means
once a legislative or executive act is determined to be unconstitutional, it will be set aside,
and may even give rise to a claim for damages59. The whole idea of judicial review is rooted
in the concept of a written constitution with limited powers60. In addition to its application to
executive and legislative acts, a judicial review is also a tool used in examining the act of
administrative agencies especially public institutions established by statutes. The idea is to
ensure that such administrative acts are carried out in line which the law prescribing its
powers and to determine that even that prescribing law is not in conflict with the
Constitution.
Since the Marbury rule, judicial review has not only come to be regarded as a cornerstone of
American constitutional jurisprudence61, but it has also influenced quite greatly the
development of this doctrine in other jurisdictions, with Nigeria being a major beneficiary.
Following the Marbury rule, it has now become settled law that the courts must always a
have a role to play when it comes to taking a second look at the acts of those exercising
governmental power such as the President. It is, however, instructive to note that
unconstitutionality is the acceptable ground for the application of the doctrine,62 where the act
in view runs contrary to other legal rules, a different standard would be applied63. It is
57
L. Langer, Judicial Review in State Supreme Courts: A Comparative Study 04 (Albany: State University of
New York Press, 2002).
58
See Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804).
59
A.B. Rubin, Judicial Review in the United States, (1979), 40 (2), Louisiana Law Review, 67-88.
60
E.V. Rostow, The Democratic Character of Judicial Review, (1952), 66 (2), Harvard Law Review, 195.
61
In a period spanning over 200 years, the Marbury rule has been applied quite broadly in a large number of
United States cases. Top on the list includes New York v. United States, 505 US 144, 177 (1992); United States
v. Lopez, 514 US 549, 552 (1995); Seminole Tribe of Florida v. Florida, 517 US 44,76 (1996); Idaho v. Coeur
d'Alene Tribe of Idaho, 521 US 261,287-88 (1997); City of Boerne v. Flores, 521 US 507, 536 (1997); Printz v.
United States, 521 US 898,935 (1997); Alden v. Maine, 527 US 706,712 (1999); Florida Prepaid Postsecondary
Education Expense Board v. College Savings Bank, 527 US 627,630 (1999); United States v. Morrison, 529 US
598,619 (2000); Kimel v. Florida Board of Regents, 528 US 62, 67 (2000).
62
Satterlee v. Matthewson, 27 U.S. 380 (1829).
63
Ashwander v. Tennessee Valley Authority, 297 U. S. 346-349 (1936). In this case, the court developing the
Principle of Judicial Restraint, formulated the following grounds as situations where the court will not apply
judicial review, if the act is based on some other legal infraction ―(1).The Court will not pass upon the
constitutionality of legislation in a friendly, non-adversary, proceeding, declining because to decide such
questions is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital
controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the
legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act; (2).The Court
will not anticipate a question of constitutional law in advance of the necessity of deciding it. It is not the habit of
the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case; (3).
The Court will not formulate a rule of constitutional law broader than required by the precise facts it applies to;
(4) The Court will not pass upon a constitutional question although properly presented by the record, if there is
22

therefore within this breadth that acts such as the exercise of presidential pardoning power
come under the floodlight of the judicial arm.
In Nigeria, the doctrine of judicial review has come as an integral part of the constitutional
framework. It is both of Common Law origin and also rooted in the Constitution64. Nwabueze
refers to judicial review as the powers of the court to declare a government action contrary to
the Constitution or any other law as null and void65. This power extends to both the
Legislative66 and Executive branches of government. Judicial review is also deemed to be in
operation where a court of superior record exercises supervisory jurisdiction over inferior
courts, as well as tribunals duly established by law.
It is instructive to state that generally under Nigerian law, the position is that the power of
judicial review is one donated to the court to forensically examine the legality or otherwise of
governmental action. This means that where the act of a public authority is ultra vires67 the
powers given by an enabling law, such an act will be declared null and void68. A major
corollary to the exercise of this power is the doctrine of ‗Locus Standi‟69, which states that
before the Court will act in this regard, there must have been a legal process instituted before
it, in which the party instituting the process has convinced the court that he has either
suffered or immediately within the province of suffering a ‗direct injury‘ from the statute or
executive action in question. This became the position following the Supreme Court‘s
decision in Senator Abraham Adesanya v. President of the Federal Republic of Nigeria &
also present some other ground upon which the case may be disposed of… If a case can be decided on either of
two grounds, one involving a constitutional question, the other a question of statutory construction or general
law, the Court will decide only the latter; (5).The Court will not pass upon the validity of a statute upon
complaint of one who fails to show that he is injured by its operation; (6).The Court will not pass upon the
constitutionality of a statute at the instance of one who has availed himself of its benefits; (7) When the validity
of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a
cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by
which the question may be avoided‖.
64
Section 6, Constitution of the Federal Republic of Nigeria, 1999 provides for the judicial powers of the
Federation.
65
B. O. Nwabueze, Judicialism in Commonwealth Africa 229 (London: C. Hurst & Co. Ltd., 1977).
66
Reinforcing this, the Court of Appeal held in Oruobu v. Anekwe & Ors., (1997) 5 NWLR (Pt. 506) 618 at
634-635, that, ―by virtue of Section 4(8) of the 1979 Constitution, the Courts have a supervisory jurisdiction
over the exercise of legislative powers by the legislature and the National Assembly or a House of Assembly
shall not enact any law that ousts or purports to oust the jurisdiction of the courts‖.
67
This means beyond the scope of powers granted by a Law.
68
See Chief S.L. Akintola v. Sir Adesoji Aderemi & Ors., (1962) WNLR 185; Attorney-General of Ogun-State
v. Alhaja Aberuagba & Ors., (1985) 1 NWLR 395; Iwuji v. Federal Commissioner for Establishment, (1985) 1
NWLR, 497.
69
This term denotes the legal capacity to institute legal proceedings in a Court in search of a relief. In other
constitutional jurisdictions such as the United States, it is also called the ‗Doctrine of Standing‘ and it is
applicable where there is the existence of a ‗case‘ or ‗controversy‘. See Article III, Section 2 of the Constitution
of the United States which provides for the judicial powers of the United States to be vested in Court and which
extends to ‗cases‘ and ‗controversies. See also Coleman v. Miller, (1939), SC Reporter 307 USP 973.
23

Anr.70. This position which was considered as rather restrictive remained a bone of
contention for years as many litigants were unable to access the courts simply because they
had not suffered any direct injury from the action complained of. However, since the
Adesanya rule, the Supreme Court in Fawehinmi v. Akilu71 has modified this rather
constrictive and narrow interpretation by holding that anyone and everyone could initiate
legal proceedings72.
The power in question is strictly limited in its length and breadth. Firstly, under Military rule,
the doctrine was severely limited through the introduction of ‗Ouster Clauses‘ that was
largely the fad of successive military regimes73. Secondly, the doctrine does not empower the
court to examine the merit, morality, ill will, or societal acceptance of the act in question. It is
not a voyage of piety but of law. The only business the court has is to determine if the
legislative, executive, or administrative power so exercised, has been done in accordance
with the enabling law, statute, and the Constitution, and nothing more74. The position is an
offshoot of the doctrine of separation of powers in which the borders of powers properly
donated to each branch of government is well delineated with each branch forbidden from
performing the task of the other branch. The reasoning, therefore, is that the Judiciary in this
respect must not be seen as performing the functions of the executive, but merely reviewing
them.
This point was judicially expounded on in Military Governor of Imo State v. Nwauwa75,
where the then Military Governor had removed the traditional ruler of Izombe from office,
but the latter challenged the Governor‘s power to do so. The Court of Appeal agreed with the
traditional ruler, based on which the State filed an appeal before the Supreme Court. In
delivering judgment, the Supreme Court held that the Appeal Court had exceeded the scope
of its powers of judicial review. The Apex court made far-reaching points, stressing the
position that the power of judicial review does not take the place of an appeal and the court
70
(1981) 5 SC 112 – 144.
71
(1987) 4 NWLR (Pt. 67) 797 (SC).
72
Id.
73
See Section 5 of Decree No.1 of 1984, which provided that, ―No question as to the validity of this or any other
decree or any Edict shall be entertained by any Court in Nigeria‖. See Lakanmi & Ors v. Attorney General
(Western State), (1971) 1 KILR 201; Adamolekun v. The Council University of Ibadan, (1968) NMLR 253.
74
This point was stressed by Lionel Brett, J. in Olawoyin v. Commissioner of Police, (1961) 2 All NLR 203 at
215, where he said, ―It is not for this Court to inquire whether the section in question would make for the better
administration of justice in Northern Nigeria any more than it can inquire whether the Constitution gives effect
to what was agreed at the Conferences which led up to its introduction. The function of the Court is to answer
the questions referred to it by interpreting the Constitution as it stands‖.
75
(1997) 2 NWLR (Pt. 490) 675.
24

has no power to replace the decision of the exercising body with its own judgment, but only
to inquire into the legality of the action and not its merit76.
Interestingly, notwithstanding the age long understanding surrounding the doctrine, it ran into
stormy waters in the leading case of Fawehinmi v. Abacha77, the late human rights lawyer,
Chief Gani Fawehinmi was on Tuesday, 30th January 1996 in a Gestapo manner arrested
without warrant at about 5:15 am, by gun-toting security operatives from the Police and State
Security Service (SSS), following which he filed an application at the Federal High Court, for
the enforcement of his fundamental rights on the basis that his arrest and detention was
illegal. The matter later came before the Court of Appeal, for a consideration of the powers of
the Inspector-General of Police pursuant to the State Securities (Detention of Persons) Act 78.
The Court held that the powers of the IGP were subject to judicial review and it could
examine the basis of the exercise of its discretion79. The dissatisfied party later appealed to
the Supreme Court.
In a dramatic twist, the Supreme Court delivering its judgement on 28th April, 200080 though
agreeing with the Appeal Court on the enforceability of the African Charter on Human and
People‘s Rights, however held that the penultimate court could not review the extent of the
exercise of the discretionary powers of the Inspector-General of the Police in relation to
Chief Fawehinmi‘s arrest and detention. In other words, the court declared that the powers of
the IGP were unfettered and not subject to judicial review. The court, in other words, held
that the powers of the head of a branch of the Executive i.e. the Nigeria Police were not
subject to judicial review. One way of looking at it is to simply say that the Court of Appeal
in reaching its decision in this matter, went the extra- mile and considered the merit of the
IGP‘s action and not just the legality. Another way is to say that the Supreme Court, in
76
Id. See also Egharevba v. Eribo, (2010) 9 NWLR (pt.1199) 411.
77
(1996) 9 NWLR (Pt. 475) 710. The is otherwise known as Gani Fawehinmi v. Sani Abacha, A-G Federation,
State Security Service & Inspector General of Police, (1996) 9 NWLR (pt. 475) 710.
78
CAP 414, Laws of the Federation of Nigeria, (LFN) 1990, as amended by the State Security (Detention of
Persons) (Amendment) Decree No. 11 of 1990.
79
The Court per Pats-Acholonu, J.C.A. (as he then was), submitted as follows, ―Another point I wish to discuss
is that the Detention of persons State Security to be appreciated by the people on whose behalf it is made, it is to
be understood that the done as well as the detaining authority should be able to show how the appellant is a
security risk to the State. By this I mean he is accountable to the public whose duty it is to discern whether the
detention order was made in good faith. The new trend in this area of law now imposes on the detaining
authority the duty he owes to Nigerian citizens to be ready to explain his actions, if not, an order of mandamus
might lie. In such a case he should be precluded from taking any protection under the ouster clause if it is found
that the detention order is not in compliance with the statute‖.
80
Abacha v. Fawehinmi, (2000) 6 NWLR (Pt.660) 228. This is also otherwise known as Sani Abacha, A-G
Federation, State Security Service & Inspector General of Police v. Gani Fawehinmi, (2000) 6 NWLR (Pt. 660)
228.
25

refusing to exercise its power of judicial review over the Police boss‘s action did so relying
on the earlier decision in Military Governor of Imo State v. Nwauwa81, which forbids the
courts from inquiring into the propriety or morality of an executive power legally exercised.
One can, therefore, say that the body language of the Apex court was one suggesting that
even though the IGP‘s action may have been morally reprehensible, but unarguably its
appearance points to the fact that it was exercised in line with the powers so granted.
The decision of the Supreme Court was a major blow to the development of judicial review in
Nigeria, as the court preferred to escape into the solitude of technicality while allowing a
clear case of abuse of discretionary powers to slide and escape the walls of its eternal duty of
vigilance and equanimity. Its position ran contrary to the contemporary and well-accepted
position on judicial review, shaking the building on a doctrine that had evolved since the
Marbury decision, as the vanguard of promoting substantive justice as against the oasis of
technical justice. By way of query, while questions bordering on merit will ask if the action
was right, good or bad, issues of legality ignoring the good or evil in an action would simply
demand to know if such was done in line with the law granting such powers. It is evident the
Supreme Court chose to align with the latter. It must however not be forgotten that drawing
from the fine lines of established doctrinal thoughts in social and political philosophy, the law
itself though not a product of morality is nonetheless an instrument of doing good and
pursuing the survival of any society of men by ensuring that at all times, good trumps evil.
The above notwithstanding, the doctrine of judicial review is today a major pillar of Nigeria‘s
constitutional experience, but how much this extends to matters of presidential pardoning
power is another matter entirely. Just like the power of the IGP analysed above, presidential
pardoning power in Nigeria is a power constitutionally provided for, but one to be exercised
discretionarily. The question is - how benevolently or malevolently has this discretion been
dispensed in the exercise of this power? The answer to this question makes it all important to
examine the exercise of this power in recent times, particularly in respect of its now notorious
breach.
ABUSE OF PRESIDENTIAL PARDONING POWER – IS JUDICIAL REVIEW

SANCROSANCT OR IS MORAL OPPROBRIUM ENOUGH?
81
Supra 79.
26

In most constitutional jurisdictions, presidential pardoning power given its executive nature
has remained a subject of abuse and Nigeria is not an exception. In many examples,
Presidents are known to have deployed the use of this power more as a tool for political
rewards and other selfish motivations, than for the ultimate good of the society. One notable
jurisdiction is the United States, where American Presidents are known to have run riot with
this power in a long list of inglorious episodes82. On the eve of Christmas of 1992, President
H.W. Bush granted pardon to Casper W. Weinberger, a leading figure in the ―Iran-Contra
scandal‖, a State-sponsored project that threatened to consume the President himself, making
Bush the first President to confer pardon to block the trial of someone who had been indicted
of a Federal offence83. The list included five other individuals namely Elliott Abrams, Duane
R. Clarridge, Alan D. Fiers, Clair George, and Robert C. McFarlane84. Though the President
was later to justify his actions by saying the pardons were necessary to heal the nation from a
lingering scandal and protect patriotic public servants from an overzealous independent
counsel, it did nothing to erase the perception of corrupt use of power on the part of the
State85. For President Clinton, it was so bad that he made sure he issued the pardons on his
last day in office, where he exercised the singular executive power to grant official pardons to
82
From President Gerald Ford through Jimmy Carter, up to Bill Clinton, American Presidents have remained
under the spotlight for their abuse of pardoning power. For instance, in 1971 President Richard Nixon was
known to have pardoned labour leader Jimmy Hoffa in the second year of his 12-year prison term, all for Hoffa
to subsequently join the chariot of Nixon‘s re-election campaign, in what later snowballed into a major scandal
where Hoffa claimed he paid off the Nixon government through the legendary singer, Frank Sinatra. In what
would as a repeat of Nixon‘s own misuse of the pardoning power, Nixon himself was to become a recipient of a
controversial presidential pardon from his own successor and former Vice-President, President Gerald Ford,
following his 1974 resignation over the Watergate scandal. President Ford granted Richard Nixon full
presidential pardon on September 8, 1974 and reports has it that the pardon granted the disgraced Nixon by
President Ford was a major fact in his presidential election defeat of 1976.
Another case in point is that of Armand Hammer who was convicted of making illegal contributions to Richard
Nixon‘s presidential campaign, but was later pardoned by President George H.W. Bush. Also, is of Peter
Yarrow and G. Gordon Liddy who were equally pardoned by President Jimmy Carter. Not forgetting, Mark Felt
and Edward Miller, two former FBI agents convicted of breaking into Vietnam protesters‘ homes and offices
without warrants during the Nixon‘s Presidency, who in the midst of their appeals, received pardons from
President Ronald Reagan. Aside US Presidents, State Governors are also culpable in this respect. For instance,
two state governors i.e. James Ferguson of Texas and J.C. Walton of Oklahoma, were both impeached in 1917
and 1923 respectively, for the offence of selling pardons. See D. T. Kobil, The Quality of Mercy Strained:
Wrestling the Pardoning Power from the King, (1991), 69, Texas Law Review, 569 – 617.
83
The Iran-Contra affair revealed that certain officials in the Ronald Reagan administration had secretly been
selling weapons to Iran and using the proceeds thereof including drug money, to fund the Contra rebels who
were heavily backed by the US government and fighting to overthrow the Marxist government of Nicaragua. In
the investigation that followed, former US Defence Secretary, Casper W. Weinberger was indicted of
obstructing congressional investigation and perjury. See L.H. Tribe, Tribe‘s American Constitutional Law, (3rd
ed. Cambridge, Massachusetts: Harvard University Press, 2000) 4-10 at 721.
84
B. Cohn and A. McDaniel, Anatomy of a Pardon: Why Weinberger Walked, NewsWeek (January 11, 1993),
22-23; R.L. Jackson and R. J. Ostrow, Bush Pardons Weinberger, 5 Others in Iran-Contra; Act Called Cover-
Up, The Los Angeles Times (Los Angeles: December 25, 1992).
85
Id. As a fallout of Bush reckless abuse of the pardoning power in Weinberger‘s case, Scholars have pushed
for the exercise of presidential pardoning power in cases of convicted offences only.
27

nearly two hundred people, for several of whom there was no basis or justification86. The
most controversial was the pardon granted to the President‘s half-brother, Roger Clinton who
was accused of peddling his influence with the President in exchange for cash 87 and that
granted Hugh Rodham, Hillary Clinton‘s brother who had enriched himself by filing
clemency applications88. Following in the same tradition, the current US President, Donald
Trump in 2017 granted pardon to Joe Arpiao, who had been convicted of criminal
contempt89.
In Nigeria, the most notorious case of abuse of presidential pardoning power, happened when
ex-President Goodluck Jonathan with the backing of the Council of State, granted pardon to
his erstwhile boss and former Governor of Bayelsa state, Chief Diepreye Alamieyeseigha and
other ex-convicts90. On the list, Alamieyeseigha‘s case was singled out as the most
86
On January 20, 2001, his last day in office, President Clinton issued on hundred and forty (140) pardons and
commuted thirty-six (36) prison sentences. Most of the beneficiaries were persons imprisoned for grave offences
such as armed robbery, cocaine distribution, bank fraud, tax evasion, embezzlement, forgery of government
cheques, and conspiracy to defraud the government. Top on this infamous list was the now-notorious American
billionaire cum fugitive Marc Rich, who fled the country and renounced his American citizenship rather than
face charges of tax fraud and illegal trading in oil with Iran, a nation that had seized the United States embassy
and held American citizens hostage. Also benefiting from dubious exercises of prerogative of mercy during the
waning hours of the Clinton Presidency were: the President‘s brother, Roger Clinton pardoned from his
conviction for conspiring to distribute cocaine ; Carlos Vignali, a convicted cocaine trafficker whose father was
a prominent Democratic Party contributor ; Susan McDougal, pardoned from her conviction of bank fraud and
who had been jailed for contempt for refusing to testify about Clinton‘s alleged participation in financial
irregularities in the Whitewater matter; and heiress Patty Hearst, who was kidnapped by and then joined a
radical group in committing an armed robbery in the 1970s, to whom Clinton granted clemency . See B. Olson,
The Final Days, (2001), 21-23; See M. Weinberg and M. Auerbach, Rewarded for Flouting Justice, The
Washington Post (January 31, 2001) at A21. President Clinton later tried to give his reason for the pardons. See
W.J. Clinton, My Reasons for the Pardons, New York Times, February, 2001.
87
R.A. Serrano, Snookered Out of Pardon, Convict Says, Los Angeles Times, (Los Angeles: June 22, 2001).
88
M. Lacey and D.V. Natta, Second Clinton In-Law Says He Helped to Obtain Pardon, New York Times, (New
York: March 1, 2001).
89
Arpaio was a former Sheriff of the Maricopa Country, in the State of Arizona was found guilty of defying a
Judge‘s order for his acts of going after illegal immigrants. See J. Chong, The Arpiao Pardon Dangerously
Accelerates Trump‘s Assault on the Rule of Law, The New Yorker, (New York: August 27, 2017), (Feb. 11,
2019) https://www.newyorker.com/tag/joe-arpaio.
90
On Tuesday March 13, 2013, the news broke that President Goodluck Jonathan had granted pardon to his
erstwhile boss and former Governor of Bayelsa state, Chief Diepreye Alamieyeseigha. According to the Senior
Special Assistant to the President on Public Affairs, Dr. Doyin Okupe, who addressed the media in a Press
Conference on the grant of the pardon, he said the President exercised this power, with the backing of the
Council of State and in accordance with his powers under Section 175 of the Constitution. Others beneficiaries
carefully inserted to legitimise the list include a former Chief of Staff, Supreme Headquarters, the late Major
General Shehu Musa Yar‘Adua; former Chief of General Staff, Lt. General Oladipo Diya; the late Major-
General Abdulkareem Adisa; former Minister of communications, Major-General Tajudeen Olanrewaju; Major
Segun Fadipe; Major Bello Magaji; Mohammed Lima Biu; former Managing Director of the defunct Bank of
the North, Shettima Bulama; and Dr. Chiichii Ashwe. The pardon was immediately met with widespread
condemnation and ridicule. While the BBC described the action as an ―irresponsible decision‖, the AFP
captioned the farce as, ―Nigeria‘s President Pardons corrupt ex-governor‖. The former governor was at a time
described by President Jonathan as his ‗political benefactor‘, having been removed from office by the Bayelsa
State House of Assembly, through impeachment that eventually led to his arrest, prosecution and eventual
conviction. As would be recalled, the United Kingdom (UK) Metropolitan Police allegedly found about £1m in
cash in Alamieyeiseigha‘s London home, as he later escaped from prison by disguising as a woman in
28

controversial, bringing presidential pardoning power under the most severe criticisms ever
seen in Nigeria‘s recent history. In Nigeria, the abuse of presidential pardoning power has
done incalculable damage to the rule of law and the power of the court to use conviction as a
form of deterrence. The argument is that what is the point in initiating punitive processes
against political office holders and public officials, taking them through an endless trial
process, wasting insufficient public funds on convicting them in court and eventually sending
them to jail is defeated, as they obtain release through a back-door process called
‗presidential pardon‘? Would it not have been better if the government had not started the
trial process at all, and not waste public funds in what would end up being double jeopardy to
the people? Do such pardons not undermine the criminal justice system and important
agencies of the state created to preserve the Constitution?91 Is it not ridicule to the State that
someone who had caused so much havoc to the people through his corrupt acts carting away
the peoples‘ commonwealth, be made to enjoy pardon on flimsy grounds of pardon
There is also the fact that the Judiciary is the worst hit when presidential pardoning power is
abused. Such abuse makes judges who after the sweat and toil of performing their
constitutionally mandated duty of trying corrupt public officials, only for them to be set free
to become subjects of vituperation, assault and butt of jokes by the same insufferable public
official. Such has the tendency of destroying the needed zeal, courage, and determination to
try such other cases in the future, thereby ruining the place of the Judiciary as the last hope of
the common man.
The grant of presidential pardons is rarely attended by any form of judicial intervention, and
this has occasioned widespread abuse. The only intervention available is for such pardon to
ultimately become a subject of public opinion, which accounts for why most controversial
pardons tend to be issued during presidents‘ last days in office. According to leading
American Constitutional Law Scholar, Laurence Tribe there are only three ―limited and
rather clumsy checks on the abuse of the pardon power by any president‖.92 Firstly, the
President can be impeached and removed from office for corrupt and fraudulent abuse of
December that year and was sentenced to 12 years imprisonment in July 2007, having pleaded guilty in a
Federal High Court in Lagos for money laundering and corrupt embezzlement. In fact, the British Broadcasting
Corporation (BBC) had infamously dubbed him ―Nigeria‘s Runaway Governor‖. The pardon has been
condemned in and out of Nigeria, as an attestation to the fact that the government‘s acclaimed anti-corruption
fight, is nothing but a mere ruse.
91
For instance, part of the argument that trailed the controversial Nixon pardon was that the pardon undermined
the jurisdiction and powers of the US Special Prosecutor‘s Office. See H. MacGill. The Nixon Pardon: Limits
on the Benign Prerogative, (1974), 7 (1), Connecticut Law Review, 90.
92
L.H. Tribe, supra 88.
29

pardoning power93. Secondly, if a President is still in office and grants a controversial pardon
before Election Day, he/she may be rebuked at the polls, and not returned to office 94. Thirdly,
where the President is at the end of his or her term, he/she would be escorted out of office and
followed everywhere in life by an unfavourable judgment by history or moral opprobrium95.
One can say that Tribe‘s submission may have been borne out of the age-long sentiments
expressed by James Iredell of North Carolina, who at the Constitutional Convention of
178796, said that he doubted a man honoured by his country with the office of the President
would apply the pardoning power in a corrupt fashion and thereby suffer the ―damnation of
his fame to all future ages‖97. Of course, it would not be wrong to say that even Iredell‘s
sentiment is itself anchored on the assumption that a person concerned about public
reprobation must necessarily have the ability to feel guilt. Thus, what manner of President
would ever want to sacrifice a venerable reputation for the immediate gratification of
granting pardons to friends and family or the self-indulgent pleasure of wielding uncontrolled
political power according to personal whims, only to do irreparable damage to his reputation?
Sadly, the necessity for guilt in times like this and the long-cherished value of protecting ―a
good name‖, do not appear to be a key consideration of the 21st-century political class. Thus,
the expectation of principled and moral leadership from the electorate consistently clashes
with the reckless pursuit of power and its attendant goodies by politicians. This is evident in
all modern democracies, with Nigeria occupying a leading position.
The testimony of today‘s democracies, is that the desperation to grab power and the relentless
quest to further perpetuate it, inevitably overshadows the call to the personal reflections of
the cost in terms of shaming, such that once the power sought is captured, all of Iredell‘s
1787 assumption is simply flung out of the window. It would be seen that amongst the three
windows of checks and balances supplied by Tribe, the issue of judicial review is absent.
93
Id.
94
Id. This was seen in the aftermath of the pardon granted to President Nixon. President Gerald Ford lost the
1976 presidential election to Jimmy Carter after granting that controversial pardon to his erstwhile boss. In the
argument of Prof. Tribe, had the same happened during the time of President Clinton, where he had granted
those pardons before the November 2000 elections, Vice President Al Gore undoubtedly would have paid a
further price in lost votes by virtue of his being Clinton‘s former deputy, but both Clinton on this occasion and
Bush eight years earlier shrewdly delayed the dubitable grants of pardon, until the presidential elections were
safely past.
95
Id.
96
J. Iredell, Address at the North Carolina Ratifying Convention July 28, 1788, in 4 The Founders‘ Constitution
17 (Philip B. Kurland & Ralph Lerner eds., 1987).
97
James Iredell in further making his opinion known said, ―This power is naturally vested in the President,
because it is his duty to watch over the public safety; and as that may frequently require the evidence of
accomplices to bring greater offenders to justice, he ought to be entrusted with the most effectual means of
procuring it‖. See W.F. Duker, supra 4.
30

Nonetheless this tool has been heavily canvassed as the only way in which the ultimate use of
the presidential pardoning power can be properly managed, reined in, and judiciously
utilised. It was in this light that Harold Krent postulated about conditional grants arguing that
the Judiciary operates as a proper check on such grants, submitting that where they are
extreme the judges can intervene to review them98. This paper cannot agree less with Krent,
and it is on this basis that an inquisition into the jurisprudence of a sister jurisdiction, i.e.
India where the doctrine of judicial review has found fertile ground particularly as it applies
to the exercise of presidential pardoning power becomes opposite.
JUDICIAL REVIEW OF PRESIDENTIAL PARDONING POWER UNDER THE

INDIAN CONSTITUTIONAL FRAMEWORK – WAY FORWARD FOR NIGERIA
The nagging question on the issue of prerogative of mercy, remains whether we are more
apologetic of the criminals and the extent of the strings they can pull to be granted pardon, or
the agonized and bereaved families that these criminals leave in the wake of their heinous
crimes and the society striving for justice erected on far-reaching moral and ethical
foundations and the abolition of all forms of criminal enterprise. In the long list of excuses
that have been adduced for the unqualified vesting of pardoning power in the Executive, the
need to stem the tide of abuse tops. Unfortunately, the same reason why this power is made
absolute in one arm of government is now the exact reason why there must be a
reconsideration of the matter. Today it has become notorious to see State Governors
recklessly abuse the constitutional provisions on the prerogative of mercy99. The reckless use
of pardoning power thus far, especially within our immediate case-study, the Nigerian State
has come to justify this statement. What then should be the way forward?
It is inevitable that there is a need for a reform of the current provisions of the law governing
pardoning power in Nigeria. In canvassing this reform, it is part of the recommendation of
this paper that any request for pardon, which would eventually be granted by the President
should be subject to final approval by the Judiciary. This argument becomes imperative in
light of many cases of reckless uses of power, as has been alluded to earlier. One thing is
clear, all of these abuses were because the power in question is absolutely wielded by just one
person i.e. the President and in some other instances, the highest ranking official of the State
98
H.J. Krent, Conditioning the President‘s Conditional Pardon Power, (2001), 89 (6), California Law Review,
1666.
99
I. Osakwe, The Abuse of Prerogative of Mercy, The Sun Newspaper, (Lagos: January 13, 2017), (July 19,
2018) http://sunnewsonline.com/the-abuse-of-prerogative-of-mercy.
31

charged with ultimate executive powers. This sort of constitutional adornment is no doubt a
great aberration within the context of three of the greatest pillars of the modern democratic
state i.e. the political concept of rule of law, separation of powers, and checks and balances.
The above position finds support in the arguments of Iluyomade and Eka, who have both
argued that the rule of law means the absolute supremacy or predominance of regular law, as
opposed to the influence of arbitrary power and excludes the existence of arbitrariness, of
prerogative, or even of wide discretionary authority on the part of government100. This means
that discretionary power, though lawful however becomes a matter of abuse, when not
judiciously used. This assertion has found further judicial protection in the English cases of
Stroud v. Bradbury101, Entick v. Carrington102, Liversidge v. Anderson103 and the Nigerian
cases of Agbaje v. Commissioner of Police104 and Balla Rabbe & Ors. v. Inspector General of
Police & Anr.105. Further, in their argument, the two erudite scholars agree that the secondary
meaning of the rule of law is that the government should be conducted within a framework of
recognized rules and principles, which restrict discretionary power106. This is understandably
so in order not to give the government unrestricted discretionary power which can easily be
abused and the issue of grant of pardons is a relevant example107.
It is in recognition of the above that many of the rules of Constitutional Law restrict the wide
powers which Acts of Parliament or of State Assemblies may confer very freely on Ministers
or Commissioners or other Authorities108. The rule of law, therefore, demands that the Courts
should prevent any abuse of discretionary power, especially when such powers are conferred
in excessively sweeping language and they are, sometimes exercised in a manner that
amounts to abuse by overzealous officials109. For example, the powers given to the Judiciary
under Chapter IV of the Constitution have served as a check on the Executive in certain
reckless attempts to trespass on the fundamental rights of citizens as was the case in the
celebrated case of Shugaba Abdulrahman v. The Federal Minister of Internal Affairs 110. It is
100
B.O. Iluyomade, and B.U. Eka, Cases and Materials in Administrative Law in Nigeria 389 - 395 (1st ed. Ile-
Ife: Obafemi Awolowo University Press Ltd., 1980).
101
(1952) 2 All E.R.76.
102
(1765) 19St.Tr.1030.
103
(1942) A.C.206.
104
(1969) 1NMLR 137 (1969) 1NMLR 176.
105
(Unreported) Suit No. M/197/69.
106
B.O. Iluyomade, and B.U. Eka, supra 105.
107
Id.
108
Id.
109
Id.
110
(1981) 2 NCLR, 459.
32

in light of the huge role of serving as a check on other constitutional powers, that the same is
canvassed for pardoning powers.
A careful examination will show that the current constitutional text and structure allows for
impunity. Is the President as the head of the executive arm and the Council of States not both
offshoots of the same executive arm of government? If this question is answered in the
affirmative, how then is such power which is exercised ‗unquestionably‘ by just one arm of
government without any form of input from the other two arms of government, expected to
be checked? Has the Constitution itself not simply opened a leeway for the highest level of
abuse? Without the protection offered by the Courts through the rule of law, all kinds of
abuses would be possible and the rule of arbitrary power would have successfully replaced
the rule of law.
According to Oluyede, though he agrees on the one hand that instances of abuse of the
pardoning power by the President are nothing but an infraction on the independence of the
Judiciary, especially if the courts have been allowed to spend energy and time on a case, he
however contends on the other hand that it is simply an example of those few instances where
the three arms of government must tolerate one another in the act of governance and finally
submitted that this has its roots in the legal history of when the King was the lawmaker,
exercised or executed the laws through himself or his servants, adjudicated over any of his
erring subjects and could grant pardon at will. With respect, this paper disagrees with the
second part of Oluyede‘s contention. It may have been a permissible argument under the
ancient rule of the British Kings to see such as a way of one arm tolerating the other, but with
the advent of the modern state, particularly the modern democratic state, where the people
have submitted their mandate to a certain individual through the ballot box, by reason of
which he/she assumes certain powers on their behalf, such powers are expected whether in
the immediate or the future, to be deployed for the good of those that have donated that
power. It cannot be simply explained on the platform of one arm tolerating the other.
This recommendation of subjecting the President‘s pardoning power to a regime of judicial

shaping is a position that has gained ample ground in some other jurisdictions, notably those
that share a similar colonial history as well as a legal system with Nigeria. In India, the
Constitution already provides for a framework of the judicial review of the Indian President‘s
pardoning power. This position began to gain ground as early as 1972, when the Indian
33

Supreme Court in G. Krishna Gouda v. State of Andhra Pradesh111, stated that ―all power,
however, majestic the dignitary wielding it, shall be exercised in good faith, with intelligent
and informed care and honesty for the public wealth‖112. An interesting case is that of Guru
Venkata Reddy v. State of Andhra Pradesh113, involving the pardon granted to an Indian
activist by the name Gouru Venkata Reddy, who was sentenced to 10 years imprisonment for
killing two people. An appeal filed by the sons of the deceased subsequently came before the
Indian Supreme Court and in a landmark ruling, the court overturned the pardon granted by
the then Governor of Andhra Pradesh, Sushil Kumar Shinde, paving the way for the entrance
of judicial review into the Indian pardoning process114. While delivering its judgment, the
court said:
Rule of Law is the basis for evaluation of all decisions (by the court)... That rule
cannot be compromised on the grounds of political expediency. To go by such
considerations would be subversive of the fundamental principles of the Rule of Law
and it would amount to setting a dangerous precedent.
A member of the Court, Hon. Justice Kapadia, while concurring with the lead judgment
delivered by Hon. Justice Pasayat opined thus:
The exercise of executive clemency is a matter of discretion and yet subject to certain
standards. It is not a matter of privilege. It is a matter of performance of official duty...
the power of executive clemency is not only for the benefit of the convict but while
exercising such a power the President or the Governor as the case may be, has to keep
in mind the effect of his decision on the family of the victims, the society as a whole
and the precedent it sets for the future. An undue exercise of this power is to be
deplored.
The place of judicial review finally became settled law in the landmark decision of the
Supreme Court of India, in Epuru Sudhakar & Anr. v. Government of Andhra Pradesh &
Ors.115, where the court held that ―clemency is subject to judicial review and it cannot be
dispensed as a privilege or act of grace‖116. The court further stated that ―the position,
therefore, is undeniable that judicial review of the order of the President or the Governor
111
AIR 1974 SC 2192.
112
Id.
113
1985 AIR 724.
114
Id.
115
(2006) 1 NSC 638 SC.
116
Id.
34

under Article 72 or Article 161, as the case may be, is available and their orders can be
impugned on the following grounds: (a) that the order has been passed without application of
mind; (b)that the order is mala fide; (c) that the order has been passed on extraneous or
wholly irrelevant considerations; (d) that relevant materials have been kept out of
consideration; (d) that the order suffers from arbitrariness‖.117
Also, in Kuljit Singh v. Lt. Governor of Delhi118, which was an earlier matter it was held that
the Indian President‘s power under Article 72 will be examined on the facts and
circumstances of each case. The court has retained the power of judicial review even on a
matter which has been vested by the Constitution solely in the Executive119.
CONCLUSION
The basis of vesting presidential pardoning power in the hands of a sole individual, usually
the Executive head is for the purpose of efficiency and accountability with respect to the
exercise of the power120. However, it has been established that this notion is grossly
misplaced as this privilege has clearly been flagrantly abused. The Nigerian experience is not
different from other presidential systems, and it‘s on this basis that India‘s strong will to alter
this status quo has become a torchbearer. This paper has critically analyzed the huge potential
for abuse in the current framework, while also positioning side by side the wealth of ideas
that can be tapped from the Indian constitutional system.
It is sufficient to support the conclusion that the Nigerian State stands to be appreciably
harmed by the current constitutional set-up. There is an urgent need for the re-working of the
provisions of Section 175 of the Constitution, to mandate that the entire pardoning procedure
terminates with a final approval that must be given by the Chief Justice of the Federation,
117
Id.
118
(1982) AIR 774: 1982 SCR (3) 58.
119
Id.; A similar reasoning was applied in Maru Ram v. Union of India, the Supreme Court while delivering
judgement on the validity of 433A of the India Code of Criminal Procedure, said, ―Pardon using this expression
in the amplest connotation, ordains fair exercise, as we indicated above. Political vendetta or party favouritism
cannot but be interlopers in this area. The order which is the product of extraneous or mala fide factors will
vitiate the exercise … For example, if the Chief Minister of State releases everyone in the prisons in his State on
his birthday or because a son has been born to him, it will be an outrage on the Constitution to let such madness
survive‖. See also Kehar Singh v. Union of India, (1989) AIR 1989 SC 653; Nine years later, in Swaran Singh
v. State of Uttar Pradesh, (1998) 4 SCC 75, a similar decision was reached when the Indian Supreme Court
reversed an order by the Governor of the State of Uttar Pradesh, and in so doing held that; ―We cannot accept
the rigid contention of learned counsel for the third respondent that this court has no power to touch the order
passed by the Governor under Article 161 of the Constitution. If such power was exercised arbitrarily, mala fide
or in absolute disregard of the finer cannons of the constitutionalism, the by-product order cannot get the
approval of law and in such cases, the judicial hand must be stretched to it‖.
120
K.H. Fowler, Limiting the Federal Pardon Power, (2008), 83 (4), Indiana Law Journal, 1652 – 1669.
35

who after due consultation with members of the National Judicial Council (NJC) must have
come to a decision whether to approve the grant or decline its approval. The Chief Justice of
Nigeria gives this final approval in his capacity as the head of the Nigerian Judiciary, finding
comfort in the concurrence of opinion of members of the NJC, who as the heads of several
judicial bodies are likely to be fully acquainted with the facts of the trial of the convict or
whoever pardon is to be granted to, so as to appreciate the necessity or otherwise of granting
a pardon. This is pre-eminently the time to allow the judiciary the power of review over
executive acts of pardon as the last resort where necessary.
36

CONSTITUTIONAL & LEGISLATIVE FRAMEWORK OF THE

CIVIL SERVICES IN INDIA IN CONTEMPORARY WORLD
SCENARIO
Authored by Dr. Niranjan Parida
Faculty, P.G. Department of Law & Capital Law College, Utkal University, Vani Vihar,
Bhubaneswar, Odisha.
parida1023@gmail.com
ABSTRACT
Modern state is a social welfare state. Its functions are multifarious. To discharge all these
functions efficiently and effectively, it is of utmost importance that we must have men of
vision, initiative and character to man the administrative apparatus of the state and hence the
need for civil services. Further, to attract best talent to these services, it is equally essential
that their conditions of service and methods of recruitment and training are given due
importance. Besides, to enable them to discharge their functions fearlessly, they must also
have a feeling of security of tenure. The constitution framers had taken note of this aspect
and made special provisions dealing with the Public Service Commissions as well as
providing certain safeguards to the civil servants to make them feel contend and secure in
their position. The Constitution of India framed with an object of securing justice social,
economic and political to its citizens, aims at a welfare state. The Directive Principles of
State Policy which it contains are in the nature of directions to the legislature and the
executive as to how they have to exercise their authority. The new economic and social policy
declared by the state unmistakably shows that the nation is committed to achieve the
objectives set forth in the Directive Principles of State Policy. For the achievement of this
core objective it is inevitable that the civil service has to play a dominant role as pointed out
earlier. It is true that free India inherited a sound system of civil service modelled for the
requirement of a colonial power. The main preoccupations of a colonial government were the
collection of land revenue and the maintenance of law and order. The increase of functions of
the state and their consequent growth of power in the hands of the civil servants began very
slowly at first. In India, this might be traced to the advent of railway as a means of
transportation in the middle of the nineteenth century. For the purpose of research study, the
researcher has followed following constitutional provisions- Articles 308, 309, 310, 311 and
312 that deal with All India Services, which all are the subject matter of our study. It also has
37

article 312-A which deals with power of Parliament to vary or revoke conditions of service of
officers of certain services.
Key Words: Constitutional and legislative framework/Provision, Civil Service/servant,

Removal/Reduction of rank, Dismissal, Reasonable Opportunities, Good Governance,
Accountability, Rights, duties and liabilities of Civil Servants, doctrine of pleasure, etc.
INTRODUCTION
The Civil Service in India has been organized on the same lines as the Civil Service of United
Kingdom. The Constitutional principle based on the doctrine of pleasure is also incorporated
in the Constitution of India in dealing with matters relating to Civil Servants. Another
concept of Rule of Law is also incorporated in the Constitution of India in the form of
Articles 14, 15 and 16. Another important doctrine viz., natural justice has been incorporated
in Article 311 of the Constitution with special reference to services under the Union and the
States. The most prominent principles i.e., notice inquiry opportunity (right of hearing) and
fair treatment have been enshrined in the Article. Article 309 of the Constitution leaves the
matters relating to the Recruitment and Conditions of the Service of the public servants of the
Union and of the States to be regulated by Acts of the appropriate Legislatures. Pending such
Legislation however, these matters were to be regulated by Rules made by the President or by
the Governor in connection with the Services under the Union and the States respectively.
The Civil servants in India, like their British counterparts, hold the post under the doctrine of
pleasure of the President and Governors. This concept is also embodied in constitution of
India under Article 310.
REVIEW OF LITERATURE
A brief review of the literature relating to the present study has been detailed as follows:
Harold J. Laski‟s valuable treatise entitled Parliamentary Govt. in England & The Growth of
Administrative Discretion gives a wonderful account of the Home Civil Service of England
tracing down its history, its relevance for the day and the impact it has had on the English
Society and politics as a whole. Similarly, Herman Finer‟s The British Civil Service 14, 15
(London, 1937) is also a classic source of ―The Role of the Civil Service in the Modern
World‖. We also find good research in Herman Finer‟s classic treatise on The Theory and
38

Practice of Modern Government, where he has attempted in-depth analysis with

comprehension, original research and first-hand observation highlighting the crucial problems
of the Civil Service mainly aimed to get, keep, manage, and inspire in the service of the state
enough of the best minds and characters of the living generation. This has been reconsidered
with novel information and perspective. Constitutional and Administrative Law by John
Alder and Constitutional Law by E.C.S. Wade & Godfrey Philips has tremendous impact
on Civil Service & Civil Servant. Other books on Indian Constitutional Law like Durgadas
Basu‟s Shorter Constitution of India and the Introduction to Constitution of India have a
chapter each on the services under the Union and the State, Dr. Basu gives importance to
Civil Service and interpretation, recruitment and conditions of Service to be regulated by
legislation subject to the provisions of the Constitution. The most respectable book on
Constitutional Law of India by H.M. Seervai has given a wonderful account of what the role
of Civil Services citing quotations from Sir Warren Fisher, Permanent Head of the British
Treasury, Sardar Vallabhbhai Patel and from Shah Commission‘s Report. Seervai‘s treatise
gives an excellent account of Articles 309 to 311, 313 and other articles in Part – XIV of the
Constitution including Chapter 2 of Part XIV. Another important book that is found to be
very close to the subject of the research study is The Civil Servant under the Law and the
Constitution by Dr. N. Narayan Nair, casting increasing attention on the roles governing the
conduct of the Civil Servant and legislations that control Civil service, aimed at enhancing
disciplined efficiency and fair service conditions. It also examines the position of the Civil
Servant and the significant features of the problem pertaining to the Civil Servants under the
Law and the Constitution. The subject has received a very careful treatment marked by spirit
of enquiry, assisted by a close examination of the opinions of jurist and judicial
pronouncements. Other books close to my topical area of research study are Prof. Narendra
Kumar‟s Law Relating to Government Servants and Management of Disciplinary
Proceedings. Prof. Kumar has in a very simple language highlighted Service law pertaining to
certain controls like ‗the pleasure doctrine‘ under Article 310, system of Confidential
Reports, disciplinary proceedings such as suspension, removal and dismissal from service
and reduction in ranks etc. In order that these control mechanisms are not arbitrary and are
constitutional and other provisions are enacted for the protection of the Civil Servants which
they can enforce through the Courts. Report of the Law Commission of India on various
topical legal issues concerning my research has also been studied and their significant
findings have been integrated into my research. Research findings of Indian Bar Review have
also been studied to integrate important research concerns. Internet Depository on my
39

research area is a significant source of legal research and various inputs would necessarily be
used in my topical research area. Justice Rama M. Jois in his work Service under the State
influences most simple level as a source of overall understanding of civil services law and
civil services jurisprudence. It is an authoritative exposition of adjudicative law as well as a
critique of it helping its future renovation. The discourse on the rights of Civil Servants is
anchored in the text and context of article 311 of the Indian Constitution. This provision is
unique in World Constitutionalism. Every act of affirmation of the rights of the Civil Servant
is also an act of State Power, strengthening it all the way. Adjudicative law empowers the
individual at the same time substantially disempowering the State. It is this inversion which
possesses the basic enigma of the Indian judicial process. Similarly, Ejaz Ahmed‟s The All
India Services Manual, published by Ashoka Law House New Delhi is a best source of
relevant case laws & notes on Government of India resolutions, decisions, circulars and
notification including Amendments by Sixth Pay Commission relating to Civil Service law.
OBJECTIVES OF STUDY
 To study the practical implication of the judicial decisions explaining the extent and
scope of judicial control in Government‘s relation to civil service matters.
 To study the role of administrative system for promoting transparency and people‘s
participation.
 To study the decision making, implementation and evaluation of projects programmers

and public policies for good governance.
 To identify the strategy that could be formulated for maintaining balance between the
interest of the civil servants and that of the fundamental interest of the society that
conflict with each other.
 To suggest the necessary legislative and reforming parameters needed in this regard.
HYPOTHESIS
1. In India, the Civil Servants are responsive, transparent, accountable, ethical, public
friendly and corruption free and deliver good governance.
40

2. In India, Civil Servants unlike their counterparts in developed countries act as public
masters as an inherited legacy of British Colonialism in India and they don‘t think and
behave as real public servants paid by the tax payers.
3. Article 311 of the Constitution of India has created an environment of excessive security
and made civil servants largely immune from imposition of penalties for their non-
performance and commission of crime. Article 311 of the Constitution of India is over
protective and promotes arbitrary action.
4. All India Services Act, 1951 and the concerned rules such as Central Civil Services
Conduct Rules, 1964 need suitable amendment to cater to the present situation and to be
in conformity with Article 309.
RESEARCH METHODOLOGY
The methodology adopted in this study is a doctrinal and empirical one. Case study method
and statistical data analysis are the basis of the empirical part of this research. Data collected
from both primary and secondary sources which are based on Constitution of India, official
reports of Law Commissions, Reports of the findings of various GoI committees, All India
Reporter on service matters etc. and leading legal bulletins. Besides a detailed survey and
analysis of plethora of judicial decisions rendered in this regard by the Supreme Court and a
number of High Courts are to be made. Reports as available in the form of Books, Journals,
Manuals Periodicals Articles and public opinion on instances of corruption constitute the pool
of Secondary Sources used.
CONCEPT OF THE CIVIL SERVICE IN INDIA
In India, the concept of civil service as it is presently understood was first introduced by the
East India Company.121 In the early mercantile stage, the civil service was known by the title
"Honorable Company's Civil Service''.122 Appointments to the civil service were by patronage
enjoyed by the Directors of the Company. The candidates had to sign a 'covenant' before
appointment. The terms included in the covenants governed the conditions of service, rights
and obligations of these servants of the Company. These employees, thus, came to be known
121
1, A. C. Banerjee, Indian Constitutional Documents: 1757-1858 Introduction p. XVI (Calcutta, 1945).
122
See Dwarkadas, op. cit. p. 2.
41

as covenanted servants.123 By the efflux of time and owing to historic compulsions, the
trading operations of the Company began to be supplemented by territorial dominion. As a
result of this process, the civil servants of the Company were slowly transformed from traders
into administrators.124 But the origin of the system of civil services as it exists in India today
may be traced from the year 1772 when Warren Hastings appointed the servants of the East
India Company as collectors in charge for the collection of revenue in each district, which
was the basic territorial unit for the administration of the Company's territory. The Regulating
Act, 1773 was the first legislative attempt to check corruption125 that was rampant among the
servants of the Company. This was followed by the Act of 1784.
The regime of Lord Cornwallis constituted a landmark in the history of the civil service in
India. Lord Cornwallis was the first statesman to be appointed Governor-General and he, for
the first time, freed the Company's civil service from the tradition of its commercial origin
and in order to check corruption increased the salary of officers. The Charter Act of 1793
restricted promotion in services only according to seniority and this did away with nepotism
shown in cases of promotions. The next important stage reached in the history of the civil
service was that of the regime of Lord Wellesley. He was mainly responsible for establishing
colleges for training126 of civil servants, which contributed considerably to the growth of an
efficient public service. He tried to evolve a stable civil service suitable for a growing empire.
The passing of the Charter Act of 1833 transformed the character of the Company from a
quasi-commercial body and made it an administrative body in the full sense of the term. The
Act also abolished the system of nomination to service and the service was thereupon thrown
open to public competition of all British subjects without distinction of religion, place of
birth, descent and color.127
LEGISLATIVE PROVISIONS & EVOLUTION OF THE CIVIL SERVICE IN INDIA
The next important milestone in the evolution of the civil service in India was the assumption
of the governance of the country by the Crown in 1858. The transfer of power did not
materially affect the organization of the civil service to any appreciable extent. The
123
Imperial, Provincial and Subordinate.
124
A. K. Ghosal, Civil Service in India under the East India Company 75 (Calcutta, 1944).
125
Documents op. cit. p. 4 and Burke's speech in the Impeachment of Warren Hastings in 1788. Id. at 94.
126
Haileybury College in England and the Fort William College in India. The former was to be closed down in
1855 as per an Act of 1855.
127
Section 87 of the Act of 1833.
42

Government of India Act, 1858 was followed by the Indian Civil Service Act, 1861. This Act
reaffirmed the rights of determination of the rank and promotion in the Company's civil
service on the basis of seniority granted to the civil servants by the Charter Act of 1793.
Thus, the conditions of service of the civil servants were placed on a statutory footing for the
first time by the Indian Civil Service Act, 1861.
In 1886, the first Public Service Commission was constituted with Sir Charles Atchinson as
Chairman to consider the claims of Indians to higher civil service.128 But it was only in 1925
that a permanent public service commission was established in India.129
The Decentralization Commission of 1907 recommended many reforms for decentralization

and simplification of the administrative process. The Government of India Act, 1919 which
introduced diarchy in the provinces provided for elected ministers and some of the civil
servants had to work under such ministers. Difficulties were created in some quarters where
the members of the superior service did not fully co-operate with the popular ministers.
Under the Government of India Act, 1935 the limited provincial autonomy was enlarged and
it was thought better to give certain safeguards to the civil service. In order to protect British
members of superior service from Indian ministers, the matter was treated as one of special
responsibility of Governors of Provinces and the Governor-General. The fear of popular
ministries was short-lived as all ministries resigned in 1939 during the Second World War.
On August 15, 1947 India became independent.
Thus, it could be seen that but for a short span where elected representatives of people were,
in a very narrow sense, in power, the civil servants in India prior to independence was really
the master of the country. This supremacy had in fact started from the late eighties of the
eighteenth century when Lord Cornwallis was sent as the Governor-General. Not being an
administrator possessed of knowledge of local conditions, he and his successors in office had
to rely much on the advice of their officers. It is this role of expert advisers played by the
Indian Civil Service that helped it to survive after Independence even after severe criticism.
The Indian leaders, conscious of the role played by the bureaucracy during the final stage of
British rule, were not happy to retain the services of many top-ranking officers but it was
indisputable that their wisdom and experience could not also be dispensed with wholly.130
128
The Royal Commission on Public Services in India (1017) recommended reservation of 25 per cent, of
vacancies to Indians.
129
This was as per the recommendations in the Report of the Royal Commission on Superior Services in India
(1925).
130
See Article 314 of the Constitution of India which gave protection to members of the I.C.S.
43

CONSTITUTIONAL DOCTRINE: DOCTRINE OF PLEASURE IN INDIA
The Common Law ―doctrine of pleasure‖ was borrowed in India under the Government of
India Act, 1858. Section 16 of this Act provided that all the servants and officers of the
Government of India shall hold their office subject to the Royal Pleasure. Section 96-B of the
Government of India Act, 1919 also incorporated this rule of pleasure. The rule was retained
under the Government of India Act, 1935.131
In India also under the Republican Constitution, the doctrine of pleasure under the English
Common Law is imported but with sufficient changes to suit the Indian conditions. In Article
310 of the Constitution, it is provided that:
―(1) Except as expressly provided by this Constitution every person who is a member of
a defence service or of a civil service of the Union or of an all- India service or holds any
post connected with defence or any civil post under the Union, holds office during the
pleasure of the President and every person who is a member of civil service of a State or
holds any civil post under a State holds office during the pleasure of the Governor of the
State.
(2) Notwithstanding that a person holding a civil post under the Union or a State holds
office during the pleasure of the President or as the case may be of the Governor of the
State any contract under which a person not being a member of a defence service or of an
all-India service or of a civil service of the Union or a State is appointed under this
Constitution to hold such a post may if the President or the Governor as the case may be
deems it necessary in order to secure the services of a person having special
qualifications provide for the payment to him of compensation if before the expiration of
an agreed period that post is abolished or he is for reasons not connected with any
misconduct on his part required to vacate that post.‖
DELEGATION OF PLEASURE BY THE PRESIDENT OR THE GOVERNOR
In State of Uttar Pradesh v. Babe Ram Upadhya,132 the majority held that the power to
dismiss a public servant subject to the provisions of Article 311 was not an executive power
131
Section 240 of the Government of India Act, 1935.
132
State of Uttar Pradesh v. Babe Ram Upadhya, AIR 1961 SC 751.
44

under Article 154 but a constitutional power and was not capable of being delegated to
officers subordinate to the Governor. However, in Moti Ram Deka v. N.E.F. Rly133 the Court
overruled the majority view in Babu Ram Upadhya case.
The question was considered in Union of India v. Tulsiram Patel134 and the Court held that
the pleasure of the President or the Governor was not required to be exercised by either of
them personally. It being an executive power within the meaning of Articles 53(1), 74(1),
77(1), 154(1), 163(1), 166(1) may be exercised by the President or the Governor acting on the
aid and advice of the Council of Ministers.
CONSTITUTIONAL SAFEGUARDS FOR CIVIL SERVANTS
Article 311 of the Constitution secures to the civil servants of the government two procedural
safeguards in relation to their tenure of office. These are –
A. No removal or dismissal by an authority subordinate to the appointing authority.

B. No removal or dismissal or reduction in rank, except after an inquiry affording
reasonable opportunity of hearing.
SAFEGUARDS
A. NO REMOVAL OR DISMISSAL BY AN AUTHORITY SUBORDINATE TO THE

APPOINTING AUTHORITY [ARTICLE 311(1)]
Clause (1) of Article 311 provides that the aforesaid persons i.e. the civil servants of the
Union or a State cannot be removed or dismissed by any authority subordinate to the
appointing authority.
REMOVAL OR DISMISSAL BY AUTHORITY EQUAL IN RANK OR SUPERIOR

TO APPOINTING AUTHORITY
Article 311(1) prohibits removal or dismissal by any authority subordinate to the appointing
authority. It, however, does not mean that the removal or dismissal must be by the very same
133
Moti Ram Deka v. N.E.F. Rly, AIR 1964 SC 600.
134
Union of India v. Tulsiram Patel, AIR 1985 SC 1416. See also Shamsher Singh v. Punjab, AIR 1974 SC
2192 for a similar view and Sardari Lal v. U.O.I., AIR 1971 SC 1547 for an opposite view overruled in
Shamsher Singh case.
45

authority who made the appointment or by his direct superior. It is enough that the removing
authority is of the same rank or grade as the appointing authority. 135 By necessary
implication, the removing authority may be higher in rank to the appointing authority.136
B. NOT DISMISSAL, REMOVAL OR REDUCTION IN RANK EXCEPT AFTER

INQUIRY
Clause (2) of Article 311 secures the second safeguard to the civil servants of the Union or a
State. It provides:
―No such person as aforesaid shall be dismissed or removed or reduced in rank except
after an inquiry in which he has been informed of the charges against him, and given a
reasonable opportunity of being heard in respect of those charges.‖
The safeguard contained in Article 311(2) is the reasonable opportunity of being heard in the
cases of - (a) Dismissal form, (b) Removal from service, and (c) Reduction in rank.
DISMISSAL OR REMOVAL OR REDUCTION IN RANK
The terms ―dismissal”, “removal‖ and ―reduction‖ in rank‖ have not been defined in the
Constitution. They carry the same meaning as they have under the Civil Service
(Classification, Control and Appeal) Rules, which mention seven penalties to which the
members of the civil services may be subjected to for misconduct.137
HIGHER RANK OR POST HELD IN OFFICIATING CAPACITY
A person working in a higher post, not substantively, but purely on an officiating basis may
for valid reasons, be reverted to his substantive post. That would not, by itself, be a reduction
in rank within Article 311(2) unless circumstances disclose a punitive element. In Devesh
Chandra v. Union of India,138 the appellant was the Chief Secretary of Assam and a member
of the Indian Civil Service attached to the State Cadre. He was appointed a Secretary in the
135
Mahesh Prasad v. State of U.P., AIR 1955 SC 70; A. K. Sen v. Union of India, AIR 1986 SC 335;
Ikramuddin Ahmed Borah v. Superintendent of Police, Darrang, AIR 1988 SC 2245; State of U.P. v. Ram
Naresh Lal, AIR 1970 SC 1263.
136
Sompura Singh v. State of Punjab, AIR 1982 SC 1407.
137
Satish Chandra v. Union of India, AIR 1953 SC 250; P.L. Dhingra v. Union of India, AIR 1958 SC 36;
Mohd. A. S. Khan v. Sarfaraz, AIR 1975 SC 1604.
138
Devesh Chandra v. Union of India, AIR 1970 SC 77.
46

Central Government on a tenure post which was to expire in July, 1969. The appointment of
the appellant was subsequently approved by the Union Cabinet.
REVERSION FROM A PROLONGED AND CONTINUOUS AD HOC

OFFICIATION
In State of Orissa v. Pyari Mohan Misra,139 the Supreme Court ruled that mere prolonged and
continuous ad hoc service does not ripen into a regular service to claim permanent or
substantive status. In this case, the respondent who was appointed as Director Fisheries on ad
hoc basis was directed to continue temporarily till further orders. Subsequently, because of
the policy decision of the Government to appoint an IAS Officer to man the post of Director
Fisheries, the respondent was reverted to the post of Joint Director without any inquiry. The
Supreme Court held the reversion perfectly legal and valid and not in violation of Article
311(2).140
DISMISSAL AND REMOVAL
It is now settled that termination of service of a civil servant of the government to constitute
―dismissal‖ or ―removal‖ under Article 311(2) must have been done by way of
punishment.141 In Baikuntha Nath Das v. Chief District Medical Officer, Baripada142 the
Supreme Court reviewed a series of decisions on compulsory retirement of government
servants ordered in the public interest. In S. Ramachandra Raju v. State of Orissa143 the
appellant, a Reader in a Government College, was compulsorily retired from service on the
basis of the solitary adverse report for one year. The Supreme Court set aside the order of
compulsory retirement of the appellant.
REASONABLE OPPORTUNITY OF BEING HEARD
139
Ganga Ram Bhatia v. Union of India, AIR 1959 Punj 643; Surjit Singh Sher Gill v. Dic. Suptt. N. R.
Allahabad, AIR 1967 All 112.
140
State of Orissa v. Pyari Mohan Misra, AIR 1995 SC 974.
141
P.L. Dhingra v. Union of India, AIR 1958 SC 36.
142
Baikuntha Nath Das v. Chief District Medical Officer, Baripada, AIR 1992 SC 1020. See also State of U.P.
v. Lalsa Ram, JT 2001 (3) SC 242; State of U.P. v. Bihari Lal, AIR 1995 SC 1161.
143
S. Ramachandra Raju v. State of Orissa, AIR 1995 SC 111.
47

Article 311(2) secures to a civil servant a ―reasonable opportunity‖ of being heard before he
is dismissed or removed or reduced in rank. It has been observed that Article 311(2)
incorporates the principles of natural justice that ―no man can be condemned unheard‖ (Audi
alteram partem). It should be an effective opportunity of hearing. However, it is settled that
the provisions of the Evidence Act, Criminal Procedure Code or Civil Procedure Code, do not
apply to the departmental inquiries held under Article 311(2).
EXCLUSION OF INQUIRY AND OPPORTUNITY OF BEING HEARD:

EXCEPTIONS
Second Proviso to Clause (2) of Article 311 contains the following three exceptions to the
rule of holding inquiry. It provides that where a civil servant is dismissed or removed or
reduced in rank, there shall be no need of holding any inquiry –
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct
which had led to his conviction on a criminal charge, or
(b) where the authority empowered to dismiss or remove a person or to reduce him in
rank is satisfied that for some reason, to be recorded by that authority in writing, it is
not reasonably practicable to hold such inquiry, or
(c) where the President or the Governor as the case may be is satisfied that in the interest
of the security of State, it is not expedient to hold such inquiry.
(a) Exception I: Conviction on a criminal charge

Clause (a) of second Proviso to Article 311(2) provides that where a civil servant is convicted
on a criminal charge, he/she may be dismissed or removed or reduced in rank without giving
him/her an opportunity of hearing before he/she is so punished. Conviction for the purpose of
this exception must be under any law which provides for punishment for a criminal offence,
whether involving moral turpitude or other crimes. However, conviction must be one which
has been imposed upon the delinquent servant during the course of and not prior to the
appointment in question.144
Conviction, for this purpose means final conviction, i.e. conviction by the final court of
appeal. However, the passing of order of dismissal, removal or reduction in rank, is not
barred on the ground that sentence was suspended by appellate court or accused was released
144
Durga Singh v. State of Punjab, AIR 1957 Punj 97; In Re Nagabhushan, AIR 1966 AP 72; Jagadindra v. I.G.,
AIR 1959 Assam 134; Sunil Kumar v. State of W.B., AIR 1970 Cal. 384; Gopal v. Tripura, AIR 1960 Tr. 31.
48

on bail pending appeal. Again, it is not necessary for the disciplinary authority to wait until
the disposal of appeal or revision presented against the conviction. But if the conviction is
subsequently set aside, the order of dismissal or removal made against the delinquent would
cease to have effect and he would be entitled to be reinstated along with salary and
allowances for the back period.
The Supreme Court in Union of India v. Tulsiram Patel145 has laid down that the charges in
the criminal case must relate to misconduct of such magnitude as would have deserved the
penalty of dismissal, removal or reduction in rank. It has further been held that a conviction
on a criminal charge does not automatically entail dismissal, removal or reduction in rank of
the concerned government servant. The Supreme Court has emphasized that where the
disciplinary authority came to know that the government servant had been convicted on a
criminal charge, it must consider whether his conduct which led to his conviction was such as
that warranted for the imposition of a penalty and if so, what the penalty should be.
(b) Exception II: Where inquiry is not reasonably practicable

Clause (b) of the second proviso to Article 311(2) provides that no inquiry needs to be held
for the dismissal, removal or reduction in rank of a civil servant if the disciplinary authority
records in writing that it is not reasonably practicable to hold such inquiry.
In Union of India v. Tulsiram Patel,146 the Supreme Court laid down the following guidelines
for the application of Clause (b) of the second Proviso to Article 311(2):
(a) It is the satisfaction of the disciplinary authority that ―it is not reasonably practicable
to hold the inquiry contemplated in Article 311(2).
(b) It is not a total or absolute impracticability which is required by Clause (b). What is
required is that the holding of the inquiry is not practicable in the opinion of a
reasonable man taking a reasonable view of the presenting situation.
(c) The disciplinary authority must not dispense with the inquiry lightly or arbitrarily or
out of ulterior motives or merely in order to avoid the holding of an inquiry or
because the Department‘s case against the government servant, is weak and must fail.
(d) A situation which makes the holding of inquiry not reasonably practicable may be
existing at the initial stage or can also come into existence subsequently during the
course of inquiry. In such a case also, the authority would be entitled to apply Clause
145
Union of India v. Tulsiram Patel, AIR 1985 SC 1416.
146
Id.
49

(b) of the second Proviso because the word ―inquiry‖ in that Clause includes part of
an inquiry.
(e) The disciplinary authority is required to record reasons in writing for dispensing with
the inquiry. There is no obligation to communicate the reasons to the government
servant. It would, however, be better to do so, because such communication of
reasons would eliminate the possibility of an allegation being made that the reasons
have been subsequently fabricated. It would also enable the government servant to
approach the High Court under Article 226 or in a fit case, the Supreme Court under
Article 32.
(f) The reasons for dispensing with the inquiry need not contain detailed particulars but
the reasons must not be vague or just a repetition of the language of Clause (b) of
second Proviso.
(g) The decision of the disciplinary authority is given finality by Article 311(3).147
However, it is not binding upon the court so far as its power of judicial review is
concerned.
(c) Exception III: Holding of inquiry not expedient in the interest of security of state
Clause (c) of second Proviso to Article 311(2) provides that no inquiry needs to be held
before a civil servant of the government is dismissed, removed or reduced in rank, where the
President or the Governor, as the case may be is satisfied that in the interest of the security of
State it is not expedient to give to the civil servant such opportunity as contemplated in
Article 311(2).
It is now established that the satisfaction contemplated under clause (c) of second Proviso to
Article 311(2) of the President or the Governor, as the case may be is not his personal
satisfaction but with the aid and advice of the Council of Ministers. It is because the power to
take disciplinary action against a government servant is the ―executive power‖ of the ―Union
or the State‖ as the case may be.148
147
Clause (3) of Article 311 contains finality clause which declares that ―if a question arises whether it is
reasonably practicable to hold such inquiry referred to in clause (2), the decisions of the disciplinary authority
shall be final‖.
148
Bakshi Sardari Lal v. Union of India, AIR 1987 SC 2106; Union of India v. Tulsiram Patel, AIR 1985 SC
1416; Shamsher Singh v. State of Punjab, AIR 1974 SC 2192; See Sardari Lal v. Union of India, AIR 1971 SC
1547 for an opposite view which stands overruled.
50

In the fourth appeal decided along with Union of India v. Tulsiram Patel‘s case149, the
petitioners belonging either to the Madhya Pradesh District Police Force or the Madhya
Pradesh Special Armed Force, were dismissed from service by applying Clause (c) of the
second Proviso to Article 311(2). It was shown that the petitioners indulged in violent
demonstrations and riotous activities attacked the police station at a Mela ground, ransacked
it and forced the release of their colleagues who were arrested for an incident in which one
man was burnt alive in the Mela held at Gwalior. The petitioners also carried on active
propaganda against the Government by holding secret meetings distributing leaflets and
inciting the constabulary to rise against the administration. After considering these material
facts, the Supreme Court held the order of dismissals justified. The Court observed that the
facts left no doubt that the situation was such that prompt and urgent action was necessary
and the holding of an inquiry into the conduct of each of the petitioners, would not have been
expedient in the interest of the Security of the State.
The Supreme Court in Challappan case150 opined that under the three clauses of second
proviso to Article 311 (2) dispensing with the inquiry, a limited inquiry ought to be held on
the question of nature and extent of the penalty to be imposed and that before taking the final
action in the matter the delinquent employee should be heard and the circumstances of the
case should be objectively considered. The Challappan case also raised the possibility of
service Rules conferring a right of hearing on a delinquent employee. In these respects, the
Supreme Court has overruled Challappan.
In Union of India v. Balbir Singh151 the Supreme Court held that the Court could examine the
circumstances on which the satisfaction of the President or the Governor was based and if it
was found that the said circumstances had no bearing whatsoever on the Security of the State,
the Court could hold that the satisfaction of the President or the Governor which was required
for passing such an order, had been vitiated by wholly extraneous or irrelevant
considerations. The Court, however, held that the fact that the accused was subsequently
acquitted in a criminal trial would not make any difference to order which was passed on the
totality of material which was before the authorities long prior to the conclusion of the
criminal trial.
149
Union of India v. Tulsiram Patel, AIR 1985 SC 1416.
150
Divisional Personal Officer, Southern Railway v. T. R. Challappan, AIR 1975 SC 2216.
151
Union of India v. Balbir Singh, AIR 1998 SC 2043.
51

OPPORTUNITY OF HEARING AT PUNISHING STAGE [PROVISO I TO ART.

311(2)]
Prior to the Constitution (Forty-second Amendment) Act, 1976 opportunity to be heard had to
be offered to the delinquent servant at two stages i.e., at the inquiry stage and at the punishing
stage.
Thus, Article 311(2) as it stood prior to 1976, enabled the delinquent servant to make his
representation as to why the proposed punishment should not be inflicted on him. This
second opportunity enabled the delinquent to plead that no case had been made out against
him or that the conclusions drawn from the evidence taken at the inquiry were not correct or
that the punishment proposed to be imposed was excessive.152 There was a plethora of case-
law around this second opportunity of hearing and punishment was liable to be quashed for
the non-compliance with this requirement. Article 311(2), thus, required elaborate procedural
formalities before a government servant could be punished. It was felt that these formalities
were consuming too much time and causing delay in taking decision in the matter without
affording any additional benefit to the delinquent servant. With a view to expedite the
disciplinary proceedings, the Constitution (42nd Amendment) Act, 1976 cut down the
procedural formalities, by abolishing the second stage opportunity. It is now expressly
provided that153- Where it is proposed after such inquiry, to impose upon him any such
penalty such penalty may be imposed on the basis of the evidence adduced.
RIGHTS AND LIABILITIES OF CIVIL SERVANTS
Several cases relating to the fundamental rights and other constitutional and statutory rights of
civil servants and their liability for misconduct have come up before the Supreme Court and
various high courts and the law governing recruitment and conditions of service is fairly settled
on most of the matters. The powers and limitations on the exercise of powers by the state and
other appointing and disciplinary authorities as well as the rights and liabilities of civil servants
are well settled by the various decisions. The knowledge of the principles of law so settled is
necessary both on the part of the authorities exercising power under the law relating to services
as also on the part of the civil servants who are governed by the said law. The following
152
Khem Chand v. Union of India, AIR 1958 SC 300; Union of India v. H. C. Goel, AIR 1964 SC 364.
153
Proviso I to Clause (2) of Article 311.
52

chapters attempt to set out the principles of law governing various matters concerning the
services under the state.154
FUNDAMENTAL RIGHTS OF CIVIL SERVANTS
I. Subject to the power of Parliament, under Article 33, to modify the fundamental rights in
their application to members of the Armed Forces and the Police Forces, the fundamental
rights guaranteed by the constitution are in favour of all 'citizens', which obviously include
public servants.
II. It follows, therefore, that a civil employee of the Government is entitled to the protection of
a fundamental right such as Articles 14, 15, 16, 19, 20 in the same manner as a private citizen.
Thus if two sets of rules relating to disciplinary proceedings were in operation at the time when
the inquiry was directed against a Government servant, and the inquiry was directed under the
set of Rules which was more drastic and prejudicial to the interests of such Government
servant, the proceedings against him are liable to be struck off as infringing Article 14.
In other words, if two public servants are working / operating in similar circumstances,
enquiries may be directed against them according to procedures that are substantially different,
at the discretion of the Executive authority, exercise whereof is not governed by any principles
having any rational relation to the purpose to be achieved by the inquiry, the order selecting a
prejudicial procedure, out of the two open for selection, is hit by Article 14.
III. Restrictions upon the rights of the public servants under Article 19 can, therefore, be
imposed only on the grounds specified in Clause (2w)-(6), and to the extent the restriction is
reasonable.
But while a public servant possesses the fundamental rights as a citizen, the State also
possesses, under the Proviso to Article 309, the power to regulate their 'conditions of service'.
Now, the interests of service under the State require efficiency, honesty, impartiality and
discipline and like qualities on the part of the public servant. The State has, thus, the
constitutional power to ensure that every public servant possesses these qualities and to prevent
any person who lacks these qualities from being in the public service. It seems, therefore, that
State regulation of the conditions of service of public servants so as to restrict their
fundamental rights will be valid only to the extent that such restrictions are reasonably
154
Justice Rama M. Jois, Services under the State, 2007 Chapter-iv, page-24 (Indian Law Institute, New Delhi).
53

necessary in the interests of efficiency, integrity, impartiality, discipline, responsibility and the
like which have a 'direct, proximate and rational' relation to the conditions of public service as
well as the general grounds e.g., public order, under Article 19 upon which the fundamental
rights of all citizens may be restricted.
CIVIL SERVANTS OWE A DUTY TO THE PEOPLE
Constitution reposes great trust and confidence in the services and gives them security of
tenure and conditions of service and in turn expects an honest and sincere service from the
members of the services for providing to the people of India an efficient polite and
incorruptible administration and to achieve and to fulfil the aims and objectives of the
Constitution. It is the duty of every person appointed to any post under the union or states, high
or low to discharge his duties and responsibilities according to the expectations of the
Constitution and befitting the trust and confidence reposed in him by the Constitution.
Therefore, while the civil servants are undoubtedly entitled to enforce their rights when they
are wronged they must be equally conscious of their duties and should discharge their duties
with honesty, discipline and sense of devotion as the rights are conferred on them only with the
expectation that they would discharge the duties entrusted to them in the required manner.155
MANAGING POOR PERFORMANCE
In India, we do not have a tradition of penalizing civil servants for poor performance. India is
one of the few front-ranking countries in the world that does not distinguish between
performers and non-performers and allows both the categories to progress in their career
without any reference to performance. In fact, Rule 56(j) of the Fundamental Rules can be
utilized for dealing with poor performance but it is rarely invoked. So rarely is it invoked that
when the provision was finally used on a campaign mode to get rid of the deadwood in the
civil service at the time of the Emergency, it was met with universal approbation in the
country and people hailed it as an important administrative innovation. Provision 56(j) has
not been in use ever since.
155
Id.
54

ARTICLE 311
The civil servant has remained largely immune from imposition of penalties due to the
complicated procedures and processes that have grown out of the constitutional guarantee
against arbitrary action. The enquiry proceedings against a civil servant are subject to Article
311 of the Constitution which provides that no civil servant can be punished except after an
enquiry in which he has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges. Because of the safeguards in Article
311, most cases go in favor of the delinquent civil servants. Article 311 was amended in
1976, permitting a penalty to be imposed on the basis of evidence. But, even in its amended
form the safeguards are so exacting that they tend to protract the proceedings indefinitely.
This constitutional safeguard has shielded the non-performing civil servant from punishment
and a major corollary has been erosion of accountability. In any case, the protection given to
the civil servant in Article 311 of the Constitution is rather excessive. No other constitution in
the world contains the kind of protection and guarantee that Article 311 provides. When
Sardar Patel argued before the Constituent Assembly for providing protection to civil
servants, his intention was to enable the civil servants to render impartial and honest advice to
the political executive without retribution. But the way it has worked Article 311 has created
an environment of excessive security without fear of penalty for non-performance.156
THE CHALLENGING ISSUES
There are certain problems with the existing system of safeguards and protection given to the
civil servants. First, the safeguards and protection are spelt out in great detail in rules,
precedents and practice. That being the case the employer – the government is exposed to
litigation on the ground that the rules were not followed. The reduction of prescription will
help in reducing unnecessary and costly litigation. Second, the existence of an elaborate
system of appeal, revision, and review in areas such as discipline and imposition of penalties
has led to a defensive, process-oriented style of personnel management that works to
minimize the risk of decisions being reversed on appeal or as a result of litigation. There is a
need to reduce the level of defensiveness and legalism in the personnel management of the
civil service while at the same time reassessing the appropriateness and effectiveness of the
156
S.K. Das, Building A World- Class Civil Service for Twenty first Century India Chapter 7, pp. 115, 116
(Oxford University Press, New Delhi, 2010).
55

array of appeals, reviews and revisions. Third, the civil service in India carries the cultural
baggage of the past. Its special protection and safeguards derive from a legislative and
procedural framework which is based on a number of unrealistic assumptions: that the civil
service is a uniform labor marker, that equity necessitates identical treatment of individual
civil servants and situations and that there is an underlying commitment to the universal and
detailed prescription of the rights of government employees. The arrangements in this
framework have led to a grievance mentality which has focused on the rights of individual
civil servants rather than systemic issues. This has resulted in conservative and cautious
personnel management in government departments which have been reluctant to punish poor
performance. Related to these three problems and deriving from them is the important issue
of an imbalance between rights and safeguards given to civil servants and the need for
organizational efficiency. It is unexceptionable that organizational efficiency should take
precedence over the individual rights of civil servants. In case of an imbalance the range of
protection, safeguards and special rights that are peculiar to the civil service need to be
examined very carefully to see if there is any reason for their preservation.157
PRESENT SITUATION
As has been discussed, the existing employment framework of the civil service with its
protection and safeguards given to the civil servants constitutes a major barrier to improving
the performance of the government department. The obvious solution, as the experience of
reforms implemented by the Australian and UK governments shows, is to eliminate the range
of protection, safeguards and the special rights given to civil servants and ensure that the civil
service is subject to the same conditions of service, disciplinary procedures and termination
of employment provisions as the rest of the community. In other words, the civil service
should operate in a framework which ensures that the conditions of service of civil servants
broadly mirror those in other sectors in the wider community.158 What does that mean in
actual terms? First, Article 311 should be deleted from the Indian Constitution. The Second
Administrative Reforms Commission has already made a recommendation to this effect. In
its Fourth Report, the Commission, said, the challenge before the nation now is to confront
the exaggerated notion of lifetime security (of the civil service) irrespective of performance
and to create a climate conducive to effective delivery of services and accountability with
157
Id. at 119, 120.
158
Id. at 122.
56

reasonable security of tenure. The Commission believes that the right of a civil servant under
the Constitution should be subordinate to the overall requirement of public interest and the
contractual right of the state. It cannot be an argument that a civil servant‘s rights are more
important than the need to ensure an honest, efficient and corruption-free administration.
Ultimately the public servant, an agent of the state, cannot be superior to the State and it is his
fundamental duty to serve the State with integrity, devotion, honesty, impartiality, objectivity,
transparency and accountability. Taking into account these considerations and a fairly
common perception that explicit articulation of protection in the Constitution itself gives an
impression of inordinate protection; the Commission is of the view that on balance Article
311 need not continue to be a part of the Constitution.159 The Commission‘s logic is
irrefutable and its plea for the deletion of Article 311 equally forceful. In fact, putting Article
311 in the Constitution was a huge mistake.
It has made India one of the very few countries where a civil servant, who is only an agent of
the government, has been given the authority to invoke constitutional rights against the
government his employer. In any case, the continuation of Article 311 has given rise to a
plethora of judicial pronouncements that have resulted in endless confusion and uncertainties
in interpretation. These pronouncements should not continue to have validity on the strength
of the continued existence of Article 311. If this article is deleted, these judicial
pronouncements would no longer be in force and binding. Article 311 needs to be deleted
from the Constitution at once. Second, the civil service law that is proposed to be enacted
under the provision of Article 309 of the Constitution should provide the minimum statutory
and disciplinary procedures as laid down in the Employment Act and Regulations in the UK.
The civil service law could also provide that disciplinary proceedings should be conducted
and resolved in-house within the department or the executive agency. On the whole, the idea
should be that the proceedings should be decentralized, quick and decisive. Only those civil
servants who are dismissed from government employment should be given a right to appeal
to the proposed Civil Services Authority. Third, we could then disband the chain of
administrative tribunals that have been set up all over the country since 1985. Central
Administrative Tribunals were set up for adjudication of disputes and complaints with respect
to recruitment and conditions of service of persons appointed to public services and posts. An
elaborate procedure duly prescribed by the Central Administrative Tribunal (Procedure)
Rules, 1987 is followed by these tribunals and cases take years to resolve. Similar tribunals
159
Id. at 123. Second Administrative Reforms Commission (2007), see paragraphs 3, 10, 19, 20, and 3, 1, 23.
57

have been established by the state governments in respect of their employees. It will be a
good day in the administrative history of the country when this expensive system is
disbanded. On the whole, we have to create an enabling environment in the country in which
performance is rewarded and poor performance is punished. This is particularly important for
the sake of the department or the organization in meeting its collective performance target. It
is also important that each department or organization should put in place procedures for
handling poor performance these procedures should be an effective part of the culture of
active performance be based on principles of procedural fairness and balance the needs of the
department or organization and the interest of the civil servant.160
LIMITATIONS IMPOSED BY ARTICLE 311(2) ON LEGISLATIVE POWER OF

STATE
The legislative power under article 309 cannot validly be exercised so as to curtail or affect
the rights guaranteed to public servants under article 311(2) of the Constitution. Article
311(2) is intended to afford a sense of security to public servants who are substantively
appointed to permanent posts and one of the principal rights is to continue in service till the
age of retirement fixed generally for such class of government servants and thereafter to the
benefit of pension as prescribed by the rules. It is not legitimate for the state to trespass on the
rights guaranteed under article 311 while exercising its legislative power. Provisions which
have been tested with reference to article 311(2) are discussed below. Rules authorizing
compulsory retirement without fixing any reasonable period or fixing unreasonable period
after which it can be exercised (a) Any rule which permits the appropriate authority to retire
compulsorily a civil servant without imposing a limitation in that behalf that such civil
servant should have put in a minimum period of service would be invalid and the so-called
retirement order under the said rule would amount to removal of a civil servant within the
meaning of article 311(2). Therefore, a rule like 148(3) or 149(3) of Railway Establishment
Code which permits the termination of a permanent government servant by giving three
months‘ notice at any time before he reaches the age of superannuation is invalid because the
termination of service which the said rule authorizes amounts to removal of civil servant and
it contravenes the constitutional safeguard provided by article 311(2).
160
Id. at 122, 123.
58

CONCLUSION
The civil servants today works within the parameters of a full-fledged democracy, which
means a vigilant press, an alert public and a watchful legislature while those in pre-
Independence days worked in a relatively protected atmosphere. They were responsible to
executives who in most cases were themselves senior civil servants and with whom they
shared a common work culture. On the other hand, today‘s civil servants work under
politicians who are accountable to the people who elect them. The civil servant today is really
a servant of the people while his/her predecessors in service represented the authority of the
colonial power. The people who were subjects of the British rulers of the past are masters
today and any comparison between the working of civil servants in pre-Independence days
and now will not be fair if basic differences in the environment and nature of work are
overlooked. The functions were discharged by the civil service of India which slowly
emerged as an all-powerful bureaucracy and a close, irresponsible corporation. But the civil
servant of India today has to discharge functions of much greater magnitude and social
significance than those undertaken by the traditional civil servant, from the point of view of
overcoming the evils of poverty, ill-health, idleness and illiteracy. That is, the civil service of
India has to adjust itself to the political concept of democracy and has to serve as a very
pliable instrument which will assure to the poverty-stricken masses of India the fruits of
economic democracy. The civil service though confronted with serious difficulties in
readjusting itself in a new political context, did not fare very badly. The very institution
which was serving as a machinery of oppression and which was hampering and countering
the freedom movement was being used by independent India for purposes of building a new
India.
REFERENCES & RECOMMENDED AUTHORS
1. H. M. Seervai, Constitutional Law of India, Vol.-3, Universal Law Publishing Co. Pvt.
Ltd. New Delhi, 2008 Chapter – XXVII.
2. Kettl Donald, Civil Service Reform Building a Government that works Brooking
Institutions.
3. N. Narayanan Nair, 1973 The Civil Servant under the Law and the Constitution – The
Academy of Legal Publications, Trivandrum, Kerala.
59

4. Das, S. K. Civil Service Reforms and Structural Adjustment, Oxford University Press,
1998.
5. The Indian Journal of Public Administration, New Delhi.
6. Govt. of India report on Administrative Reform Commission chaired by Sri P. C. Hota
2004.
7. Second Administrative Reform Commission Report by V. Moily, New Delhi, 2007.
8. R. B. Jain, Public Administration in India, 21 Century Challenges for Good
Governance, 2004 Deep & Deep Publications Pvt. Ltd. New Delhi.
9. Goel S.L. Good Governance an Integral Approach, 2007 Deep & Deep Publication Pvt.
Ltd. New Delhi.
10. S. K. Das, Building a World Class Civil Service for Twenty first Century India, Oxford
University Press, New Delhi, 2010.
11. Bidyut Chakrabarty, Mohit Bhattacharya, The Governance Discourse, A Reader,
Oxford University Press, New Delhi, 2008.
12. World Bank, Governance and Development, 1992 and World Bank Civil Services
Rationalization in India, Washington, 2001.
13. Mamadou Dia - A Governance Approach to Civil Service Reform in Sub Saharan
Africa World Bank Technical Paper, World Bank – 1993.
14. Faraz and Ali, Administrative Reform in Developing Nations Praeger Publishers, 2001.
15. Different editorial articles from The Hindu, The Telegraph, Times of India, Indian
Express & relevant Articles from Internet.
16. Justice Rama M. Jois, Services under the State, 2007, Indian Law Institute, New Delhi.
60

NRC IN ASSAM: ANALYSING THE QUESTION OF CONSTITUTIONAL

MORALITY AND LEGAL RATIONALITY
Authored by Ambar Kumar Ghosh

Doctoral Candidate, Department of International Relations, Jadavpur University, Kolkata.
ambarghosh.04@gmail.com
ABSTRACT
The article intends to delve into the issue of constitutionality of the procedure of formulating
the National Register of Citizens (NRC) in the Indian state of Assam which is being
conducted under the auspices of the highest judicial authority of India, the Supreme Court.
The NRC exercise attempts to document the names of original citizens of Assam and
concomitantly intends to trace the list of illegal migrants from Bangladesh who have
illegitimately settled in Assam. The process has been initiated by the Supreme Court in
conformity with the Assam Accord signed in 1985. The article intends to delineate the
instrumental factors that have fundamentally diluted and mishandled the process of NRC and
reduced it to a tool for bureaucratic capriciousness and political polarization. The article
broadly addresses the danger of such fallacious project by elucidating how the NRC
formulation in its present form is a blatant contravention of the constitutional morality as
well as legal rationality. Lastly, the article concludes by delineating the process as a mere
fillip for insidious political rhetoric aimed at advancing divisive propaganda articulation and
convenient electoral mobilization. The central argument of the paper is premised upon the
proposition that the NRC process needs an urgent reconsideration so that it is not done it
violation of the letter and spirit of the Constitution.
THE METHODOLOGY OF THE STUDY
The paper seeks to assess how the entire procedure of drafting the National Register of
Citizens (NRC) in Assam is violating the legal as well as moral sanctity of the Constitution.
The paper attempts to trace the loopholes of the NRC process by taking a nuanced view of
how some of the pivotal constitutional principles are being compromised or are on the brink
of being compromised. This has been done by analyzing some of the indispensable
constitutional provisions like right of equality (particularly, Articles 14 and 15), right to
61

freedom (Article 19) and right to life and liberty (Article 21) in the context of the idea,
procedure and the outcome of the entire NRC drafting project in Assam.
THE BACKGROUND
The protracted and much-vaunted endeavor of formulating a register of citizens for the state
of Assam dates back to 1951 when the first NRC was drafted. The menace of illegal
migration in the eastern and North-eastern parts of India from the erstwhile East Pakistan
(present Bangladesh) has been a long-drawn phenomenon. Such a massive exodus of people
gradually created suspicion, anxiety and anger amongst the indigenous people of Assam.
Subsequently, the humongous influx of East Pakistani migrants into Assam in order to escape
the brutal persecution in the hands of the West Pakistani forces and in the run up to the
Bangladesh Liberation War of 1971, led to a perceptible change in the demographic character
of Assam.161
The magnitude of the mass inflow was demonstrably noticed particularly during the 1978
Assam State elections. There was a precipitous increase in the population of Assam in the
post-1971 era which further reiterated the threat of fundamentally marginalizing the
indigenous population of Assam. This paved the way to a powerful protest movement in
Assam by the indigenous groups to immediately detect and deport the illegal migrants from
Assam.162 This protest movement against the foreigner migrants gained considerable
momentum in between 1979 to 1985 led by All Assam Students Union (AASU).
It was a phase which saw substantial violence and bloodshed in Assam in the light of
unrestricted antagonism against illegal migrants of Assam which, due to political
opportunism, took a communal colour. The decision to hold elections before detecting and
deporting the Bangladeshi migrants in 1983 gave further spark to the already exacerbating
imbroglio. One of the most violent and atrocious fallout of the Assam crisis was the Nellie
massacre of 1983. The Nellie riots witnessed the genocidal slaughter of over 3000 people,
mostly Muslims, in the district of Nagoan in Assam.163 The culmination to the stints of
inhuman violence was the signing of Assam Accord in 1985 under the Prime Ministership of
161
Sibani Basumatari, Pattern and Process of Population Migration in Assam, 19 IOSR-JHSS, pp. 25-31(2014).
162
Ipsita Chakravarty, How the fear of migrants became the driving force of the politics of Assam, Scroll.in
(Feb. 19, 2016, 09:00 AM), https://scroll.in/article/802983/from-votebank-to-spectre-how-political-parties-
imagine-the-outsider-in-assam.
163
Ratnadeep Choudhury, Nellie Massacre and Citizenship: When 1800 Muslims were Killed in Assam in 6
Hours, The Print (Feb. 18, 2019 11:45 AM), https://theprint.in/governance/nellie-massacre-and-citizenship-
when-1800-muslims-were-killed-in-assam-in-just-6-hours/193694/.
62

Rajiv Gandhi. The Assam Accord emphasized upon the drafting of a NRC for detecting the
illegal migrants of Assam who came to the state after 24th March, 1971 and deporting them
back to Bangladesh.164 This Accord was given legal sanctity by adding an additional clause in
the Citizenship law as Article 6A that mandates the specific formulation of NRC in the state
of Assam.165 However, administrative lacuna coupled with political vacillation emanating
from electoral pragmatism kept the process of NRC deferred lackadaisically for almost three
decades. It got a fillip in 2005 when UPA I revived the process. But again it was kept in the
cold due to political impediments. It took the Supreme Court to authoritatively intervene in
the matter and the court gave strict directive in 2013 to initiate the process of framing the
NRC draft; therefore, reacting sincerely and immediately to the issue.
After decades of vacillation, the first draft of the NRC in Assam was finally published in July
2018. It was found that out of 3.3 crores people of Assam, 2.9 crores found their names
successfully registered for NRC. Remaining 40 Lakhs people were found out of the first draft
of NRC. Out of the 40.07 lakh applicants who have been left out of the final draft NRC
released, 2.48 lakh applicants have been kept on hold including the D-Voters (doubtful voters
who have been disenfranchised on account of failure to prove citizenship), descendants of D-
voters and persons whose cases are pending before the foreigners tribunal.166 The state,
however, has not revealed the reason for keeping others on hold. The process of validating
one‘s identity as an Indian citizen before the NRC administrators required a slew of vintage
government documents that would substantiate their claims of being Indian citizens before
the cut-off date i.e. 24th March, 1971.167
After the first draft was out, measures were ensured for filing appeals by the people whose
names were missing in the list. As the deadline for filing the appeal expired on 31st
December, 2018, 31 lakh people were reported to file their claims once again through the
appeal. The remaining process of the NRC is yet to unfold. The fate of the people whose
names are not included in the register is shrouded in fathomless uncertainty. The government
164
Adrija Chowdhury, NRC Row: What the Assam Accord Said About the Immigrants, The Indian Express
(Aug. 02, 2018, 12:37 AM), https://indianexpress.com/article/research/nrc-what-the-assam-accord-of-1985-said-
about-immigrants-in-assam-5287009/.
165
Rahul Tripathi, Clause 6, Assam Accord: Fine Line Between Indian Citizen and Assamese, The Indian
Express (Jan. 04, 2019, 12:26:14 AM), https://indianexpress.com/article/explained/clause-6-assam-accord-fine-
line-between-indian-citizen-and-assamese-5522438/.
166
S. Naqvi, Assam releases NRC: All you need to know about National Register of Citizens, Hindustan Times
(July 30, 2018, 10:24 AM), https://www.hindustantimes.com/india-news/assam-releases-nrc-today-all-you-
need-to-know-about-national-register-of-citizens/story-KjPnEQ6fJTkwDJKqJonVJK.html.
167
Harsh Mander, A National Register of Exclusion, The Hindu (Feb. 05, 2019, 01:23 AM),
https://www.thehindu.com/opinion/lead/a -national-register-of-exclusion/article26177621.ece.
63

of India as well as the Supreme Court has been conspicuously nonchalant about the
consequence of the NRC exercise. The ominous speculations are ripe all around. The fear of
disenfranchisement, detention and deportation looms large on a huge mass of people who
would be rendered stateless and stripped off their national identity. Any of these possibilities
can pave the way towards a greater humanitarian crisis which might escalate into a nefarious
social discord not only in Assam but across the length and breadth of the country.
Though, the exercise of briefly rehearsing the crucial developments around NRC in Assam
might appear gratuitous, it‘s crucial to put the discussion on the viability of NRC process in
an appropriate context of constitutional morality and legal viability. India has established
itself as a stable democracy of secular and egalitarian bonafide that has evolved under the
sacred auspices of a magnanimous constitution. The Indian Constitution is an empathetic and
compassionate edifice which not only guarantees fundamental rights to its own citizens but
also accords a slew of basic yet crucial rights to all its residents. 168 The Supreme Court of
India is posited as the sole protector and upholder of the Constitutional sanctity in India.
History is replete with instances when the Supreme Court rose repeatedly to such occasions
in which attempts were made to violate or jeopardize the Constitutional supremacy by the
politically motivated legislature or the executive. Despite all its records of institutional
uprightness, there are emerging vocal critics who argue, with conviction and reason that the
custodian of our virtuous and benevolent Constitution has failed to protect its sanctity in
regard to the NRC question is Assam.169 The author believes that, the Supreme Court‘s
monitoring and administering of the NRC exercise in Assam in the current form is legally
untenable, politically sinister and morally degrading to say the least. There are three
fundamental distortions in the NRC procedure held by Supreme Court that are in blatant
contravention to constitutional morality and thus, needs to be addressed on war footing.
CONSTITUTIONAL MORALITY AND LEGAL RATIONALITY OF NRC
The NRC procedure contravenes the standards of constitutional propriety in three pivotal
ways. It falters in the idea of conducting the NRC, in its procedure as well as in the outcome
of NRC.
168
Faizan Mustafa, Who Is a Citizen In Assam- India?, The Indian Express (June 06, 2018, 7:31 AM),
https://indianexpress.com/article/explained/who-is-a-citizen-in-assam-india-citizenship-act-nrc-5205603/.
169
Mohsin Alam Bhat, On the NRC, even the Supreme Court is helpless, The Wire, (Jan. 07, 2019)
https://thewire.in/law/nrc-supreme-court-crisis.
64

(a) A flawed foundation

First, the constitutional validity of the entire NRC is under suspicion as the Supreme Court is
yet to judge the merit of Section 6A of the Citizenship Act, which mandates the conduction
of the NRC in Assam. In the Sarbananda Sonowal Case of 2005, the court raised doubts on
the constitutionality of this particular Article.170 The most irresponsible contradiction in the
conduct of the Supreme Court is that it has initiated the mammoth exercise of drafting the
NRC in Assam without examining the merit of the clause that mandates such exercise in the
first place.171 Now, in the recent future if the Section itself is found constitutionally
untenable, then the entire process of NRC initiated till date would be rendered
unconstitutional as well, hence it would be nullifying as a futile endeavor.
Along with an appendage to the first fallacy, is another foundational discrepancy which, if
proved true, renders the entire exercise and the very cause of NRC formulation unwarranted.
The data and information that the Supreme Court referred to as an evidence of large-scale
illegal migration in Assam from Bangladesh is allegedly a highly conflated one with limited
evidentiary authenticity to prove its veracity. The reports of humongous influx of foreign
migrants in Assam which involves a gigantic figure of a few millions has proved to be a spur
for the Supreme Court to hastily impose the NRC process for immediate redressal of the
crisis. The Court, reading from the figures obtained from such unreliable and allegedly
politically motivated sources, came to the conclusion that Assam is in the midst of a colossal
demographic and cultural transformation due to the massive illegal influx.172 And, the revered
court hurriedly concluded that it will have a detrimental impact, economically, culturally and
politically, on the indigenous population of the state. Under this impression based on
unverified sources, the court expedited the process of detecting the supposedly huge numbers
of illegal infiltrators and deporting them back to their original country.
Now, it is both astonishing as well as intriguing to find that the Supreme Court of India,
which enjoys almost unquestioning authority and undaunting credibility in the Indian public
170
Sarbananda Sonowal v. Union of India, (2005) A.I.R. S.C. 2920 (India).
171
Gaurav Bhatia, The Constitutional Challenge to S. 6A of the Citizenship Act (Assam Accord): A Primer,
Indian Constitutional Law and Philosophy (May 07, 2017),
https://indconlawphil.wordpress.com/2017/05/07/the-constitutional-challenge-to-s-6a-of-the-citizenship-act-
assam-accord-a-primer/comment-page-1/.
172
Sanjay Hegde & Pranjal Kishore, NRC: Why the Supreme Court ruling could be a preclude to ethnic
cleansing, Business Standard (August 06, 2018), https://www.business-standard.com/article/economy-
policy/nrc-why-the-supreme-court-ruling-could-be-a-prelude-to-ethnic-cleansing-118080600363_1.html;
Debarshi Das & Prasenjit Bose, Assam NRC: Govt Clueless about how many illegal migrants actually live in
India, RTI shows, The Huffington Post (January 31, 2019), https://www.huffingtonpost.in/2018/11/16/assam-
nrc-govt-clueless-on-how-many-illegal-immigrants-actually-live-in-india-rti-shows_a_23591448/.
65

discourse, has undertaken an exercise as serious as NRC without ascertaining the merit of the
information that demanded such an exercise. The Supreme Court of India is the institutional
safeguard that is expected to work as a bulwark against all acts that are politically motivated
and directly or indirectly contravenes the ideals of the Constitution. Even, more importantly,
the Apex Court is always viewed as the foremost guarantor of rights and well-being of all its
citizens. By hurriedly initiating the process of NRC without properly accessed the rationale
behind the exercise, the court made an irreparable damage to its image as the epitome of
constitutional righteousness and institutional reliability.
(b) A dubious process

Second, a discussion on the procedure or conduct of NRC is an immediate imperative. The
Court monitored NRC formulation has issued a list of documents as evidentiary proof that the
people of Assam have to furnish in order to prove that they have been residing there from
before the cut-off date, i.e. 24th March, 1971.
This process of establishing a question as critical as citizenship, through some old documents,
is not only implausible but also unimaginably dangerous. Firstly, given the fact that the
documents belong to a distant past, the people might have found preservation of those papers
as unimportant or impossible across generations. Now, only because certain documents of
residence have been misplaced, is it a justifiable ground of disenfranchising a citizen and
declaring him stateless? Moreover, there have been intriguing reports suggesting that the poor
strata of the society is more unlikely to preserve and furnish such documents and hence more
likely to be at the receiving end (oppressed and effected end) in the NRC process. There are
also reports indicative of the fact that the complicated nature of the forms with technical
language might have deterred the lesser literate sections from making an appeal against the
exclusion of their names from the NRC first draft.
Secondly, the entire exercise is premised almost wholly upon bureaucratic arbitrariness and
highhandedness. The Supreme Court appointed NRC administrators are solely responsible for
establishing the veracity of such documents submitted by the people; hence they are the
ultimate arbiters of the people‘s citizenship. The idea of snatching away the citizenship of a
person solely on the capricious discretion of a bureaucrat is downright degrading and betrays
all standards of fair play and constitutional conformity.
Such unrestricted power handed over to the NRC administrators paves the way of rampant
corruption in the NRC process which might have led to exploitation and discrimination of the
66

already marginalized and weak. News of innumerable instances is doing the rounds which
suggest that people are being stroked off from the list on frivolous grounds like names with
incorrect spellings. There have been reports of ethnic biases in the verification and
identification process of NRC. Certain reports have surfaced regarding more rigorous
standards of verification is being applied to the Bengali speaking population as well as the
Muslims than the rest that hints at an ethnic and regional and religious prejudices on the part
of the NRC administrators. Such blatant discrimination and institutionalized marginalization
of such a large number of people is a flagrant violation of Article 14 and Article 15.
The tampering with the basic fundamental rights of these hapless emaciated people, under the
aegis of the Supreme Court, is constitutionally, legally and morally untenable. All such
apprehensions and uncertainties of irregular procedures and practices in the citizenship
verification process hints at a major loophole that imperils the entire process. It suggests that
despite Supreme Court‘s directions, there is a lack of standardised procedure and competent
yardstick to conduct the documents verification in a reliable manner.
Even, the provisions of making appeals against the exclusion from the register before the
Foreigner‘s Tribunal (FT) are fraught with glaring bureaucratic and procedural irregularities.
The Tribunal, which should be comprised of judicial officers with records of high legal
competency, is now largely dominated by officers with non-legal background, who are
allegedly planted in the forum by nepotistic patronage networks.
Moreover, police enjoy unfettered power to label an individual as a D-Voter on the basis of
unsubstantiated assumptions, which leaves a large room for exploitative practices to flourish.
The most intriguing part of the problem lies in the fact that people who would have to bear
the brunt of these exploitative bureaucratic excesses are the most impoverished, mostly rural
and poorly lettered sections of people who have nothing but ceaseless helplessness at their
disposal.
Reducing a vexed issue of citizenship and national identity to the question of mere
documentary verification in an arbitrary fashion is a gross violation of not only constitutional
ethos but also humanitarian sensitivity. When a substantial section of the population is
suddenly placed under the suspicious gaze of the state and their identity is questioned and
67

quashed on the basis of certain identification papers or lack of them, the humane attributes of
history and the circumstances of history is lost or forcibly obliterated.173
Such a situation puts the identity and life prospects of these innocent people in perpetual
jeopardy, despite not being clearly proved as illegal immigrants. This threats the
indispensable right to life and dignity (Article 21) for this vulnerable populace who are
standing on the precipice of disenfranchisement. Before verification of certain documents on
the basis of a cut-off date, the highly revered and trusted Court should have pondered about
the multi-dimensional nature of the very concept of citizenship. Especially, such a necessity
bears more credence on any question on demography, territory and citizenship in the
subcontinent because of the highly crosscutting, overlapping and complicated historical
circumstances of violence and rupture and the casualties that such circumstances produce.
Such helpless victims of history might have survived partition violence, East Pakistani
genocide or the Sri Lankan majoritarian persecution. Such sufferings cannot be verified by
formal documental evidences of a specific cut-off date. Any such attempt to do so becomes a
violation of human consciousness and dehumanization of history.
Unfortunately, the multi-faceted nature of citizenship has missed the attention of the Supreme
Court. Is citizenship about birth or about cultural roots? Is it about period of residence or land
or language or ethnicity? Reducing the question of citizenship to a mere clerical endorsement
which can be stroked off with a pen not only defies the essence of constitutional morality but
also constitutional rationality and compassion of humanity.
(c) Paranoia of costly consequences

That brings us to the third point. As already reiterated, there is an utter lack of clarity
regarding the consequence of the NRC demarcation. Whether the people who will be
excluded from the list are to be detained in perpetuity or deported back to Bangladesh, are the
crucial questions in hand. While the former is more despicable than the latter, the question of
deportation is shrouded in mystery.
Despite the Supreme Court‘s repeated directive to the Government of India (GOI) to enter
into a credible repatriation treaty with Bangladesh to conduct the deportation process with
ease, any indication of such development between the two neighbours are completely absent
as of now. And the comments of the Bangladesh Government official that the entire NRC
exercise and its consequences are ―internal matters of India‖ is emblematic of the fact that
173
Shiv Visvanathan, Citizenship and Compassion, The Hindu (Aug. 06, 2018),
https://www.thehindu.com/opinion/lead/citizenship-and-compassion/article24609480.ece.
68

any such agreement with Bangladesh won‘t be a smooth accomplishment and might involve
hectic diplomatic parleys and negotiations which might span across several months.
Hence, such a possibility entails that those out of the NRC list would be disenfranchised and
might be huddled up in concentration camps or detention centers as stateless entities.
Needless to say, this would amount to a state-sponsored massive humanitarian crisis in India,
where discrimination and marginalization of the disenfranchised would be normalized and
justified. This would pave the way of the violation of Article 20, according to which any
person cannot be illegally detained. Hence, the entire exercise of NRC which was based on
unsubstantiated ground, carried out in an arbitrary manner and now is about to give rise to a
massive humanitarian challenge in India by declaring a large mass of people as stateless
within its own territory.174
THE POLITICS OF POLARISATION
These conditions which violate the basic tenets of constitutional morality that stand as the
hallmark of the conscience of Indian democracy only give rise to a vicious politics of
paranoia and suspicion in India. The NRC imbroglio in Assam has led to the rise of a vicious
political propaganda which has only benefitted the political parties with variegated agendas.
The local parties like Assam Gana Parishad and All Assam Students Union (AASU) have
used the rhetoric of protecting the indigenous culture and the political and economic interests
of the native people from the encroachments from outsiders.
On the other hand, the Hindu right wing forces have twisted the debate from indigenous
ethnic identity to the question of religious identity. The clear and vitriolic insinuation of the
ruling Bharatiya Janata Party (BJP) is broadly premised upon the argument that the influx of
Bengali Muslim population from Bangladesh would steadily make the local Hindu Assamese
population a minority in their own state.175
This xenophobic politics of hatred and paranoia based on ethnicity and religion has witnessed
considerable spates of unceasing violence in Assam since the end of 1970s. The recently
174
Ishita Kumar & Hamsa Vijayaraghavan, NRC Assam: India Is Obligated to Ensure That People Are Not
Rendered Stateless, The Wire (Aug. 27, 2018), https://thewire.in/rights/nrc-assam-india-is-obligated-to-ensure-
that-people-are-not-rendered-stateless.
175
Angshuman Choudhury, NRC Assam: Sarbananda Sonowal, Hilmanta Biswa Sharma warn ‗illegal
foreigners‘ but overlook constitutional obligation, The Firstpost (Jan. 27, 2019),
https://www.firstpost.com/india/nrc-assam-sarbananda-sonowal-himanta-biswa-sarma-warn-illegal-foreigners-
but-overlook-constitutional-obligaton-4455561.html.
69

conducted NRC only led a free hand to such venomous and polarizing politics whose
repercussions are not only felt within Assam but has percolated beyond. The issue of NRC
draft has attracted attention and furore of a tremendous magnitude due to the sensitivity of the
issue which is given a new dimension due to the political rhetoric of national security. The
drive for disenfranchising and deporting millions of people is being projected as a sine qua
non for ascertaining security of Assam and the rest of the country. The tactful ploy of
equating migration with national security very effectively injects fear and suspicion in the
minds of the people. This helps in creating the internal frontier within the state, as it
happened in Assam. There is a perceptible anger and insecurity in the local Assamese
residents towards the alleged immigrants or potential infiltrators which is craftily utilized and
augmented by the opportunistic political class.
While, the BJP president and other prominent leaders have made the clarion call of cleansing
and disenfranchising the ‗illegal migrants‘, once detected, West Bengal Chief Minister
Mamata Banerjee cautioned about a potential civil war due to the politicised NRC exercise.176
Thus, the cynical political practice of manufacturing mythical enemies and raking
unwarranted ominous consequences, are the kind of political rhetoric that the NRC exercise
brought into play. Such insidious and polarising environment has the potential of creating
destabilizing effect on the Assam‘s as well as entire country‘s political landscape.
Thus, the political rhetoric of ―otherisation‖ is the most prominent consequence of the NRC
exercise that the Supreme Court has mandated. Such divisive rhetoric can have a deeper and
more long lasting ramification on the social fabric of Assam which is premised upon a very
delicate foundation of complex demographic diversity. Therefore, the NRC exercise, in its
present form, not only encroaches upon the basic rights of the people and demeans the
constitutional sanctity, but it has also opened the Pandora‘s Box for opportunistic politics of
polarization.
A CALL FOR RECONSIDERATION AND RECTIFICATION
Therefore, the exercise of NRC that has been initiated under the oversight of the Supreme
Court is replete with glaring loopholes and shortcomings. The spirit as well as the
paraphernalia of the entire process defies the foundational principles of constitutional
176
Express Web Desk, Mamata Banerjee: ‗With NRC they‘re trying to divide people, there‘ll be bloodbath in the
country‘, The Indian Express (July 31, 2019), https://indianexpress.com/agency/express-web-desk/.
70

morality as well as legal rationality. Thus, the entire phenomenon of drafting the register of
Indian citizens is premised on questionable grounds. The costs that this painful process
involves are immeasurable and the damages it is capable of inflicting is irreparable.
As the Supreme Court is the indisputable vanguard of constitutional propriety and the
ultimate safeguard against any kind of encroachment of the rights of the people, such
inconsiderate conduct of the highest echelon of the judiciary is unfortunate. The situation
turns complex in an unprecedented manner, as the institution which usually mitigates the
excesses or errors of other institutions is itself accused of unbecoming conduct in its dealing
of the NRC matter. Hence, to assuage or rectify the discrepancies of the Supreme Court led
process becomes increasingly untenable.
When the non-political oversight institution in the democracy, in our case which is the
Supreme Court, fails or overlooks the need of adhering to the foundational pillars of
constitutional morality in a case as serious as citizenship, the ethos of constitutional integrity
and liberal democracy comes under threat. And, subsequently, the situation becomes volatile
and polarized, which is exploited by the political dispensation for effective electoral
mobilization of different constituencies. Thus, the rampant and undisguised use of political
rhetoric of parochial and vitriolic politics begins to thrive in full sway under such antagonistic
environment. How far, the NRC imbroglio will be damaging for peace, stability and integrity
of the Indian democracy, is a matter of the future. But, as the crisis unfolds, the lesson that we
as a democracy must learn is that, we must not compromise on constitutional morality. Once,
it is compromised, democracy gets degenerated in the dehumanizing pursuit of opportunistic
politics armed with venomous rhetoric and hyperbole.
Therefore, the Supreme Court, as the repository of justice and fair play, must immediately
take stock of the situation in Assam in order to rectify the loopholes. Only then, the
constitutional promise of safeguarding the life and well-being of millions of vulnerable
people can be safeguarded.
71

FAKE NEWS: A CLEAR LOOK BEYOND THE VAGUENESS

“A lie can travel halfway around the world while the truth is putting its shoes on”
Authored by Astha Sharma & Shantanu Sharma

Students of Rajiv Gandhi National University of Law, Patiala.
asthasharma@rgnul.ac.in; shantanusharma@rgnul.ac.in
ABSTRACT
Through this paper, the author attempts to venture into the undefined and unmarked territory
of fake news which is expanding at an unregulated and unprecedented rate. It discusses the
threat that fake news poses to free and fair political discourse and the social set up. Recent
events like the US Presidential election have brought this menace of fake news circulation to
the notice of the world. The study of fake news is undertaken in the constitutional background
of India and America in order to check the effectiveness of the constitutional machinery to
counteract these newly emerging problems that are the result of technological advancements
in multimedia. These multimedia platforms have turned into the essential wellspring of
getting data for dominant part of the populace and are used rampantly. These sites expose
their users to unreliable and inauthentic data, making them susceptible to influence and
flawed decision making. So, effective tools to combat these not so constitutional elements are
needed. It suggests structural and institutional changes so as to counteract against the
creators and perpetrators of fake news. Not just significant changes in the Constitution but
other existing legislations relating to the matter also need to see the sun of a new day and are
demanding amendments to adjust this problem so as to find a reasonable solution to it. A
proactive part on legislature‟s behalf may help to address this problem rightly. Establishment
of bodies which monitor the social networking trends in vogue and regulate factually
incorrect data would definitely help in managing the mess created by fake news.
INTRODUCTION
We live in an era where one can send plethora of data quicker than the blink of an eye. When
there‘s no one to talk to or spend time with, one can talk to A.I. technologies like Alexa and
Siri, you can send the information of your wedding to a person who is a 1000 miles away
from you just with a touch of your smartphone, watch endless TV shows and dramas without
72

having to stand in line for your tickets. And the one thing that has made all of this possible is
the Internet.
One of the best things that the internet has provided the world with is the ease of transferring
information. You can transfer information of any sort to whosoever you want to if you have
the right tools and the knowledge. This is where the dark truth about the internet and its use
comes out i.e. the transfer of news.
―News has been defined in a number of ways, ranging from being an account of a recent,
interesting, and significant event, an account of events that significantly affect people, to a
dramatic account of something novel or deviant.‖177 The more interested the readers, the
more popular the news and the source (TV channel, website, social media account, press,
etc.) promoting it. This race of keeping the audiences engaged has given way to utter dilution
in the veracity and quality of the news delivered to the extent that now media houses and
social media platforms are being used as propaganda machines.
One of the biggest threats to the dissemination of true information in this era is Fake News.
Fake News has been one of the most widely discussed topics in the recent years and its
effects in controlling world politics have been seen as a threat to peace and good governance.
Fake news can be anything, right from newspaper articles, websites, and propaganda
pamphlets to memes of social media sites, doctored/fake videos, audio or pictures. This paper
aims at defining the utterly vague concept of fake news with the help of varied sources and
tries to look at the constitutional perspective and validity of Fake News in the light of the
Constitution of India and the Constitution of the U.S.A. This paper also aims at providing
suggestions for regulating the menace of Fake Information through content regulation.
(a) Fake News Defined

With the advent of the Internet and the empowerment of millions of voices to be heard
universally at the click of a button, the possibilities of reshaping narratives through
distorted/misinterpreted facts are endless.178 Unfiltered and open platforms like Facebook,
WhatsApp and Twitter have made distribution of misinformation all the more easy. The
Collins Dictionary, which has also named Fake news as Collins‘ word of the Year 2017,
defines Fake News as ‗false, often sensational, information disseminated under the guise of
177
Edson Tandoc et al., Defining ―Fake News‖: A typology of scholarly definitions, 6 DJ, 137, 137-153, (2017).
178
Nakul Nayak, Fighting fake news in India, Policy Forum, (Mar. 04, 2019, 2:37 PM),
https://www.policyforum.net/fighting-fake-news-india/.
73

news reporting‘.179 Malaysia‘s controversial Anti-Fake News Bill 2018 defines fake news as
‗news, information, data and reports which is or are wholly or partly false.‘ 180 The
cornerstone of a fake news publication is its falsity— the basic statements of facts
disseminated in fake news articles are fabricated and false.181 The terminology which is
common in each definition here is falsity, partially or wholly. This is the main aim of Fake
News; delivering made up, half true or wrong news to the people. The purpose could be
anything, swaying the opinion of voters, hiding or fabricating facts from the voters,
promoting a particular propaganda, or for frivolous purposes like click baiting to promote or
sell certain products.
―At its core, 'fake news' is misinformation, which is defined as "false or inaccurate
information, especially which is deliberately intended to deceive".‖182 The main idea behind
fake news is the intention as that is what separates the intentional distribution of
misinformation from bad journalism which is result of modern journalism tactics.183
Fake News came to be acknowledged globally as a threat to ‗Right to Information‘ after the
2016 US presidential elections and the alleged involvement of Fake News to influence the
outcome of the elections. ―In the midst of the 2016 U.S. presidential election, Americans took
to social media to debate any number of political issues, as well as to inform themselves
about the candidates. Sometime around October 2016, anonymous Twitter accounts began
posting, falsely, that former democratic politician Anthony Weiner's laptop was recovered by
the FBI, and that it contained proof of his involvement in child sexual abuse. The online
rumors spread further to engulf Hillary Clinton, as well as her campaign manager John
Podesta.‖184 This largely impacted her political reputation and election results making her
subject to severe public scrutiny.
Fake news can become a national security issue especially when it undermines the
foundations (e.g., social cohesion, public institutions, peace and order) of the nation state. In
addition to this, fake news serves as a tool for disinformation campaigns: the intentional
179
Julia Hunt, 'Fake news' named Collins Dictionary's official Word of the Year for 2017, Independent,
(February 26, 2019, 2:00 AM), https://www.independent.co.uk/news/uk/home-news/fake-news-word-of-the-
year-2017-collins-dictionary-donald-trump-kellyanne-conway-antifa-corbynmania-a8032751.html.
180
Grant Gross, Countries Consider Penalties for Spreading ‗Fake News‘, Internet Society, (February 26, 2019,
2:00 AM), https://www.internetsociety.org/blog/2018/04/countries-consider-penalties-spreading-fake-news/.
181
David O. Klein and Joshua R. Wueller, Fake News: A Legal Perspective, 20 Journal of Internet Law, 6
(2017).
182
Chloe Francis, Trial of Truth: Law and Fake News, 3 Edinburgh Student Law Review 113 (2018).
183
Id.
184
Ryan Kraski, Combating Fake News in Social Media: U.S. and German Legal Approaches, 91 St. John's Law
Review 923 (2017).
74

dissemination of false information to meddle with the opinions of the receiving audience.185
The prime example of this is the Basirhat Communal Riot 2017.186
(b) Fake News not a Modern Concept

Even though the terms ‗fake news‘, misinformation, disinformation seem to have come in
vogue in the recent years, they have a long history behind them. Fake news is often regarded
as old as journalism itself. The manipulation of facts as per the whims and fancies of those
circulating the news or those in power for temporal political and social advancements is not
something that we are witnessing recently as a result of technological accessibility. It has its
roots in the past, right from the ancient Roman Republic to the spread of Gutenberg‘s press in
the 15th century there have been numerous instances of fact manipulation and misinformation
to achieve political objectives.
―It has been a feature of human communication since at least the Roman times when Antony
met Cleopatra. Octavian waged a propaganda campaign against Antony that was designed to
smear his reputation. This took the form of “short, sharp slogans written upon coins in the
style of archaic Tweets. These slogans painted Antony as a womaniser and a drunk, implying
he had become Cleopatra‟s puppet, having been corrupted by his affair with her. Octavian
became Augustus, the first Roman Emperor and “fake news had allowed Octavian to hack
the republican system once and for all.‖187 This fits well with the saying that history repeats
itself if the US Presidential elections of 2016 are taken into account.
Further as journalism started budding, journey of fake news also proceeded with the
invention of Gutenberg‘s printing press which accelerated the process of amplification of
propaganda and hoaxes and dissemination of fake news. During this time a popular genre of
fake news made its appearance ―the canard‖ which was printed broadsides with stories of
monsters engraved on it.188 In addition to this, the socialisation of the people at coffeehouses
also invoked circulation of speculation, uncertified facts, and gossips in and around England.
No part of the world remained isolated from this phenomenon.
―Even Jonathan Swift made derogatory comments regarding fake news, at least about
political fake news, in his essay entitled: Falsehood flies and truth comes limping after it, so
185
Gulizar Haciyakupoglu et. al., Countering fake news: A survey of recent global initiatives, 2 Rajaratnam
School of International Studies (2018).
186
Dr. Sushree Panigrahi and Jeet Singh, Deadly Combination of Fake News and Social Media, 3 Rajiv Gandhi
Institute for Contemporary Studies (2015).
187
Ferenc, Titus, Fake news in the United Kingdom and the United States: a historical-conceptual sketch, Com.
press 4 (1) (2018).
188
Id.
75

that when men come to be undeceived, it is too late, the jest is over, and the tale hath had its
effect‖189
India, in this case too, is no exception to what the world went through regarding the reliability
of content disseminated and published. Plethora of instances of fake news dissemination can
be cited right from the beginning of the Epic Ramayana where a false rumour and speculation
regarding the integrity of Sita‘s character was spread by the people of Ayodhaya which lead
to Ram deserting Sita.190
The only change that has occurred now is that much advanced forces are employed in the
favour of this process of fake news circulation. With the development of journalism, it was
expected that information would reach the masses and an empowered and au courant public
would come as a result; but maybe the expectations were not so rightly placed, as just being
provided with the news was not the agenda but the quality and reliability of content that
reached is what would have helped in realisation of the set expectations. It tends to be
properly reasoned that fabricated news is nothing but media that is specially crafted to trick
you.
FAKE NEWS IN THE LIGHT OF CONSTITUTIONAL LAW
(a) Indian Perspective

Jawaharlal Nehru, the first Prime Minister of India, said ―I would rather have a completely
free press with all the dangers involved in the wrong use of that freedom than a suppressed or
regulated press.‖191 And the same ideas were incorporated while drafting the Constitution of
India, making way for a free press for the free and non-hindered flow of news and
information. The freedom of press was a demand of the freedom fighters during the British
Raj and freedom of press was said to be implicit in the Freedom of Speech and Expression192,
though the freedom of press has not been expressly mentioned193. Freedom of the press by
interpretation has been accorded constitutional status even though there is no specific
provision for it. Though Freedom of the Press should be a mandatory privilege in a
189
Id.
190
Devdutt Pattanaik, Fake News: Was Sita the first victim?, Economic Times (Dec 29, 2018, 11:03 AM)
https://economictimes.indiatimes.com/magazines/panache/fake-news-was-sita-the-first-
victim/articleshow/67292970.cms.
191
Speech at the Newspaper Editor‘s Conference, 3/12/1950.
192
Dr. Manoj Kumar Sadaul, Freedom of Press in Indian Constitution: A Brief Analysis, International Journal of
Applied Research, 194, 195(2015).
193
Indian Const. art 19, cl. 1.
76

democracy, letting the press work without any reasonable restrictions, especially in this area
of high speed internet and social media platforms like Facebook, WhatsApp and Twitter can
prove to be fatal to a nation state. Fake news has been many a times defended by the
proponents who say that transmission of news can never be curbed as putting any kind of
restrictions would be putting a ban on different kinds of perspectives too.
Freedom of speech and expression has certain reasonable restrictions provided in Article
19(2) of the Indian Constitution which curb the freedom of the press if it is against the
National Interest or the interest of the society. But in this era of unchecked and unrestricted
social media platforms and millions of news websites mushrooming every year, can the
reasonable restrictions provided in the Constitution of India really stand the test of the time or
do they need some brushing up?
According to Telecom Regulatory Authority of India (TRAI) there are more than one billion
cell phone users in India.194 According to a report of market research firm IMRB
International, India has become the second largest smart phone market in the world as smart
phone users in India grew over 300 million by December 2016. 195 With this humongous
population and with the number of smartphone users actively accessing the internet, it
becomes one of the hardest tasks for the authorities to check the inflow of deceiving or
propaganda carrying news. Social Media platforms like Facebook and WhatsApp have been
the primary sources through which fake news has been spread throughout the country. And
though the promise of restricting, regulating and filtering misinformation has been made,
nothing of significance has still been done by these social media giants. While WhatsApp has
been the primary intermediary through which Fake News distributed has resulted in
lynchings, Facebook came into scrutiny of the FBI and other American authorities after
reports emerged claiming that the social media giant had allegedly influenced the outcome of
the 2016 U.S. presidential elections by publishing fake news about Hillary Clinton‘s
involvement in despicable crimes.
A report from research firm IMRB says that there are about 163 million active internet users
in rural India and their basic medium of information and internet consumption is
entertainment in the form of video and audio content.196 Fake news is distributed, especially
194
Supra 186.
195
Supra 186.
196
Arushi Chopra, Number of Internet users in India could cross 450 million by June: report, Livemint, (Mar.
03, 2019, 6:40 PM), https://www.livemint.com/Industry/QWzIOYEsfQJknXhC3HiuVI/Number-of-Internet-
users-in-India-could-cross-450-million-by.html.
77

in the rural regions in the form of images, videos and audios. One of the primary examples of
this claim would be the Muzaffarnagar Riot of 2013. The Muzaffarnagar riot allegedly got
triggered after a video of two boys of a particular community getting lynched by the members
of another community surfaced on social media platforms. This video, which was also shared
by an MLA of a political party, was falsely distributed to be the video of two boys who had
been murdered few days back. Clashes followed and nearly 40 lives were lost and thousands
of people were forced to live in relief camps. On further investigation, the police found out
that the video due to which the violence was instigated throughout Muzaffarnagar was
actually two years old, recorded in Pakistan.197 Fake News was also involved in Akhlakh
Lynching incident of 2015.198
The freedom of press, like every other freedom, is not absolute and is confined by reasonable
restrictions that are imposed by the Constitution. One might ask about why we even need a
separate legislation or regulation to curb Fake news when we already have an endless number
of restrictions provided in the Article 19(2) of the Constitution. The answer to this question is
multifaceted. The first and foremost argument in relation to this question is the absence of a
proper definition of the term ‗Fake News‘. There is no statute or legislation in India which
carries a proper definition of the term Fake News. The reasonable restrictions don‘t find their
applicability in curbing this menace as one cannot distinguish original news from
misinformation. Even the authorities in other countries have not managed to come to a
conclusion about a clear and precise meaning of the term. The now repealed Anti Fake News
Bill, 2018 of Malaysia government had a very vague definition of Fake News, which could
not cover everything due to its lack of definitions of the mentioned terms. While the
legislation against fake news of the Egypt Government didn‘t have any definition of the term
‗Fake news‘ at all.199 The term as a whole shouldn‘t just cover the misinformation but the
intermediaries (WhatsApp, Facebook, Online News Handles and other media platforms) and
the individuals or organizations spreading or generating the fake news.
Secondly, Our Constitution has not provided for any specific provisions against Fake news or
misinformation. “Our Constitution does not permit legal regulation of false information as
197
Supra 186.
198
Supra 186.
199
Ruth Michaelson, 'Fake news' becomes tool of repression after Egypt passes new law, The Guardian, (Mar.
04, 2019, 5:23 PM), https://www.theguardian.com/global-development/2018/jul/27/fake-news-becomes-tool-of-
repression-after-egypt-passes-new-law.
78

false information. Neither does it permit vaguely-worded restrictions on speech.”200 Until

and unless there is a regulated law which deals specifically with curbing misinformation,
constitutional law in India will have little or no say in regulating fake news.
As far as other legislations are concerned they also don‘t help much in providing a rigid
safeguard against fake news either. The Information Technology Act, 2000 can be considered
as the leading legislation which contains provisions against misinformation and objectionable
content on the cyberspace, still it doesn‘t hit the problem where it is required. There are three
stages through which fake news is transmitted, (I) the content is created, (II) the content is
spread/forwarded (III) the content reaches the desired internet platform. The IT Act does not
contain any provision which can target the content forwarder or an individual content
creator.201 While social media platforms like Facebook, WhatsApp and Instagram are
protected under the IT Act, 2000 as they come within the ambit of the definition of an
intermediary but the Information Technology (Intermediaries Guidelines) Rules 2011, issued
under Sections 78 & 79 of the IT Act say that just being an intermediary doesn‘t absolve
them of all liabilities. According to the Intermediaries Guidelines, these intermediaries have
to remove any objectionable content from their platforms within 36 hours from the time the
content has been made known to them. Even these rules have a lacuna as they haven‘t
provided the location of the appointment of the Grievance Redressal Officer.202
The Indian Penal Code is another statute which criminalizes cyber activities which harm the
society and its elements. Sections 499 and 500 of the IPC deal with Defamation and can be
invoked to penalize the dissemination of misinformation and defamatory remarks against an
individual. Section 505 is one of the many sections of the IPC which can be invoked to curb
false and mischievous news intended to upset the public tranquillity. There are other sections
of the IPC namely, 124A, 153A, 153B, 295A that deal with penalizing the dissemination of
false or objectionable information.203
In addition to these statutes, The Press Council of India, created under the Press Council Act,
the News Broadcasters Association (NBA) and the Broadcasting Content Complaint Council
(BCCC) regulate the dissemination of misinformation by TV channels, Newspapers and
Broadcasters.
200
Shrutanjaya Bhardwaj, Does The Constitution Protect Fake News?, Livelaw, (Mar. 04, 2019, 6:51 PM),
https://www.livelaw.in/columns/does-the-constitution-protect-fake-news-142596.
201
Krishna Kumar Panda, Fake News and the Indian Law – IT Act, IPC – What you need to know, Gizmo
Times, (Mar. 04, 2019, 11:34 PM), https://www.gizmotimes.com/what-how/fake-news-law-india/32124.
202
Id.
203
Indian Penal Code 1860, No. 45 Acts of Parliament (India).
79

(b) American Perspective

United States of America, one of the biggest consumer of data, information and news present
on the online platforms is home to these tech-giants like Google, Facebook and Twitter who
have caught widespread media attention due to the increasing instances of circulation of
fabricated news on these widely accessible platforms, to which these platforms have
responsibly reacted by introducing self-regulatory and a range of algorithmic changes to
detect and curb the circulation of fake content. The incident which essentially brought this
fake news fiasco into limelight was the 2016 Presidential election in America which was
allegedly influenced by fabricated news that was circulated before the elections. ―Recent
revelations indicate widespread use on social media of targeted false information by Russian
interests attempting to influence American politics during the 2016 election season.‖ 204 There
are also revelations about the exposure of voters to fake news relatively more than their
exposure to accurate political data during the time of elections.
The accessibility of social media platforms to a large set of public not only materialised the
right to freedom of speech and expression for many by providing a wider platform for
expression, but also brought with it the disadvantage of circulation of inauthentic news with
the emergence of these platforms it is not just the press, (who initially was empowered to
publish news) that published information but news creation and circulation was done by other
anonymous agencies and individuals as well. And these individuals and agencies are utilising
technology to sway public opinion and influence their behaviour. The fabricated news
content appeals to its readers emotionally and mentally. And due to lack of effective tools to
check the authenticity of such news it is most likely that the readers get influenced by it. The
use of fabricated news to extend propaganda and political agenda is facilitated and harboured
by the current information ecosystem more as the data transmission from one part to another
rests on just a press of button. This has proved detrimental to the basic edifice of democracy
by influencing its machinery and functioning. Since free political debates and discourses are
the limbs of democracy, so content which shapes these discourses and deliberations must be
trustworthy and reliable. If the subject matter of such debates is based on a factually incorrect
data or is influenced by it then the entire purpose would be defeated and democracy would be
robbed off its true meaning. Such events infringe the voter‘s ability to be adequately and
rightly informed. ―According to a recent study conducted by Pew Research Centre, 64% of
204
Lili Levi, Real ‗Fake News‘ and Fake ‗Fake News‘, 16 First Amendment Law Review 232 (2017).
80

the US citizens believe that fabricated news stories cause a great deal of confusion about the
basic facts of current issues and events.‖205
There has been widespread discussion over the constitutional validity of fake news and the
measures that could be adopted by the policy makers under the light of American
Constitution to curb such malpractices.
The First amendment provides for the right to freedom of speech and freedom of press so as
to have an empowered and well informed citizenry, it reiterates the vision of the founders of
America. The idea of restricting government‘s control over free speech and press was central
to this amendment. The intention of the founders was pretty clear for they wanted to protect
speech and hence, fake news as such is considered as constitutionally protected speech, as
whether the consequence of any news is good or bad was not the primary concern of the
founders. There was an assumption that the citizens and institutions like press are in a
disadvantaged position in comparison to the state so their protection with extra cushioned
legislations was needed. So protection of content was done to keep a check on government‘s
power but with an assumption that the citizens would not misuse the first amendment that
was made to favour them irresponsibly.
This perspective of looking at fake news for analysing its impact puts the onus on the citizens
who are seen by many as the real victims of this whole fake news fiasco. But at the same
time, their involvement in circulating and creating fake news behind the anonymity of the
Internet cannot be ignored. So to solve this deep rooted and interconnected problem, what
constitutional measures can be adopted by the policy makers and the legislators is a relevant
point of discussion. First amendment seems to guard fake news and its perpetrator in good
faith and ―…under First Amendment jurisprudence, government regulation of any kind is not
likely possible, and attempts to regulate would likely fail judicial review.‖ 206 The judicial
pronouncements made it quite clear that punishing a news based on its falsity is not the
reasonable restriction that can be placed upon the free speech. In a 2012 judgement of
Supreme Court United States v. Alvarez207 this stance was made quite clear. In reaching its
decision, the majority clarified that "falsity alone may not suffice to bring the speech outside
the First Amendment. The statement must be a knowing or reckless falsehood."208 All this
205
Jessica Stone-Erdman, Just the (Alternative) Facts, Ma'am: The Status of Fake News under the First
Amendment, 16 First Amendment Law Review 410 (2017).
206
Id.
207
United States v. Alvarez, 567 U.S. 709, 717 (2012).
208
Id.
81

boils down to one observation that just the falsity of a particular information alone cannot be
brought under legal scrutiny but its impact and intention of the speaker are also to be studied
carefully. So for legislators to make a successful legislation in this regard it would be a tricky
task because of the protection provided by the first amendment. A well thought of legislation
that strikes ―a reasonable balance between speech restricting and speech-enhancing benefits
within a narrowly-applied political context‖209 would be a potential solution to this problem.
Other than this, it can be expected from the other organs of state like judiciary to take
cognizance of such malpractices by a limited application of the first amendment clause in
such cases and bring the defaulters under legal scrutiny. To realize the vision of founders of
America granting unlimited liberty in its nascent sense would not be enough, proper caps on
liberty with regards to the changing condition is pivotal. The existing time calls for
appropriate and effective measures against fake news. And if freedom is what we are actually
seeking then ―Cass Sunstein reminds us, if people are unaware of the consequences of their
choices, they are, to that extent, less free.‖210 And this right stakes it all on the truthful nature
and content of information so as to have constructive political deliberations.
CONCLUSION AND SUGGESTIONS
This paper makes a juvenile attempt at talking about the challenges awaiting in the journey of
development of political discourses and a well-informed citizenry in the light of the recent
occurrences affecting the social and political status of our surroundings. In the era of digital
journalism and news being reported and disseminated at the press of a button, the
constitutional machinery seems not to be at par with the technological achievements of
humankind and its impact on the arrangement of the society. Accessibility of social platforms
with enormous consumer base and digital illiteracy are both diligently working together
towards a common goal of creating a post-truth era which would lack an objective outlook.
The paper addresses the issue of fake news in the light of the Constitution. On viewing this
issue under the lenses of Constitution and other legislations, a battle against far more
advanced rivals ready to be fought can be seen. The road ahead is definitely bumpy and will
require effective and well-designed shock absorbers to make the journey smooth. Impact of
fake news circulation is not just on the political setup but on the social setup as well.
209
Michael K. Park, Separating Fact from Fiction: The First Amendment Case for Addressing Fake News On
Social Media, 46 Hastings Constitutional Law Quarterly 1 (2018).
210
Id.
82

Incidents of mob lynching as a result of misinformation circulated on the social platforms like
WhatsApp and Facebook are significantly being reported. This brings us to realisation that
there are technologically equipped forces acting against a not so developed and traditional
coping mechanism. This calls for equipping our machinery with the right arms and
ammunition.
One of the most important things that is often overlooked while we use these platforms for
gathering information is the anonymity of the publisher. The unaccountable data present on
these tech platforms with little or no knowledge about the publisher makes it difficult to
identify the perpetrators of misinformation or factually incorrect data. This puts a bar on
fixing liability and curbing such unauthorised sources who act with the intention to deceive
and create menace in the society. There is a need for a statutory measure to bring this data
and such sites to scrutiny on both national and international level. Some guidelines should be
laid down for these multimedia giants to follow and abide by, so that instances of fake news
can be reduced. This would also bring a significant shift in the legal recognition provided to
these social media websites. Under India's data innovation laws, web based sites are arranged
as "go-betweens", which enables them to exploit safe-harbor arrangements that exclude them
from risk for substance they didn‘t create or modify. So mandating these websites would not
be an easy task and it must not include any kind of suppression of free speech beyond
reasonable restrictions‖211 Also the sites like Facebook and Twitter receive protection under
the IT Act as they are treated as intermediaries and not the essential news producing sources.
But it is high time that these institutions should be brought under legal scrutiny. Legislations
or guidelines for their compliance should be enacted which mandate these websites to
regulate the data that is posted on them and check the factual correctness of data.
A legislative body should be created which is proactive on these social networking sites and
which acts as a quick response team and would use social media platforms to spread
awareness regarding digital literacy and would respond to the queries of general public about
social media. This team should also monitor the hash tags and the general social media trend
that is in vogue and try to create heat maps to locate the sensitive areas from which
information is generated and to which areas is it most impactful.
211
Supra 178.
83

These platforms themselves should be used to create awareness and increase digital literacy
about the likeliness of less credible information on these platforms and how to identify such
bogus content.
Another serious concern regarding fake news is its impact on the political machinery and
elections. There have been numerous instances in the recent times where this can be seen, be
it US Elections 2016, or the Brexit controversy. So concern hovers over the legislative and
executive authority of the largest democracy as well. According to a recent study conducted
by Oxford based on systematic analysis of local news article reporting on cyber-troop activity
―the weaponization of social media platforms like WhatsApp to spread fake news will gather
momentum as India enters an election year.‖212 This issue also demands immediate attention
of the government.
It is rightly said that any snippet of data which interacts with the web ends up everlasting
until the end of time. And there is no such right as the right to be forgotten which makes such
content and its impact everlasting and raises serious concerns regarding the machinery for the
disposal of such content. A more effective mechanism to deal with this issue must be devised
with the help of these tech-giants. So the road ahead might seem like the road less taken but
to reach the most desired result it needs to be taken.
After looking into the various aspects of fake news and the problems thereto, this paper does
not attempt on suggesting any single conclusive solution to this multi-layered problem
because combatting it through single machinery such as the Constitution might prove
ineffective. It suggests various structural and institutional changes to tackle this problem
without any suppression of the right to speech and expression. Even before making an
attempt to regulate the content published it is essential that well thought of definition of fake
news should be adopted to reduce vagueness and clear the air regarding this highly
controversial issue. Just as discourse related law was changed following the creation of the
printing press and radio and TV. Essentially, the on-going internet-based life insurgency will
likewise require a reasonable legitimate advancement. Large scale public involvement and
increased digital literacy might prove fruitful in checking and reporting the credibility of
content so published on various multimedia platforms. Our attempts of utilising the
machinery must be so effective that the thin line between the credible and incredible should
not smudge under the impression of subjectivity of ideas and perspective. The good part is
212
Ananya Bhattacharya, Oxford Researchers warn India of a fake-news epidemic as Elections Approach,
Quarts Owner (Jul. 25, 2018, 10:00 AM), https://qz.com/india/1335161.
84

that the circumstance is still levelled out so imperative advances are probably going to prove
productive.
85

THE ESSENTIAL RELIGIOUS PRACTICES DOCTRINE: ITS

FALLACY AND FUTURE
Authored by Kaumudi Srivastava

Student of Government Law College, Mumbai.
kaumudi.srivastava@gmail.com
ABSTRACT
The mélange of any religion has been meticulously sieved through the infinite contours of
law. The philosophies of religion are abstractions, drawn out into the chime of social reality
and churned through mechanics of law and order. Although both religion and law
fundamentally profess a humane code of conduct, the nuances when viewed from a more
nationalistic perspective, conform to almost contradictory and exclusive ideologies. While
religion serves a deeper, more personal interest, law is a tool of the society that compels
compliance of its citizens with principles of justice and good conscience. It is noteworthy that
a lucrative quantification of religious rights and other rights derivative of the Preamble into
pigeonholes of rather adjudicatory morality is not only a humongous task, but also an
oversimplification of the intertwined complexity of religion and law. The tussle between
practices of religions and processes of law swings dangerously on an uneven terrain of
dynamic public interest and inconsistent judicial approach. In order to effectuate
reconciliation of religious freedoms to notions of liberalism and egalitarianism, the Courts in
India have adopted an Essential Religious Practice doctrine. The paper traces the advent of
this doctrine and emphasizes upon its relevance in the current time.
THE INCEPTION OF THE DOCTRINE
The post-independence struggle of India was manifold with radical concerns. The Constituent
Assembly was faced with the predicament of incorporating modern notions of civilian
freedom in a socio-political structure that was decaying within ancient holds of religion. In an
attempt to dissolve shackles of caste-based discrimination and classist repression, the
Constituent Assembly aspired for massive liberation of the suppressed and a parallel dilution
of religious ideologies that had for long, essentially corroborated the tools of oppression.
Consequently, the Assembly structured the Constitution on tremoring remnants of rigorous
grinding of the devout with legal duties. In upholding its commitment to unhindered
religiosity and curbing the former‘s coincidental communalism, the Constitution drafted the
86

Chapter on Fundamental rights, branching the rights into paradoxical freedoms of religious
diversity and public equality.
Furthermore, the Constitution so formulated, lent an elemental nuance to the definition of

secularism. The Indian stance on secularism encompasses State neutrality towards religions
and State intervention in matters decimating social integration or against public interest.213
Similar to the U.S non-establishment clause, there is a total absence of references to an
established Church or to a majoritarian religion in the Indian Constitution.
THE BIRTH OF ESSENTIAL RELIGIOUS PRACTICE DOCTRINE
Article 25(2)(a) of the Indian Constitution allows the State to make legislation ―regulating or
restricting any economic, financial, political or other secular activity which may be
associated with religious practice.‖
The Essential Religious Practice doctrine is prominently derived from the aforementioned
provision. Although Article 25 substantially corroborates the State‘s authority to intervene in
matters of religion, it makes such intervention contingent upon the nature of the practice that
is the extent of secularity of any religious practice. Simply, the test was evolved over a course
of time, which enables the judiciary to evaluate whether any practice is essentially secular or
essentially religious and the latter is exempt from constitutional scrutiny.
The doctrine was first used by the Bombay High Court in the case of State of Bombay v.
Narasu Appa214. Later it was authoritatively approved in The Commissioner, Hindu Religious
Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar of Shri Shirur Mutt215
popularly known as Shirur Matt case wherein the Court propounded the following principle:
―what constitutes the essential part of a religion is primarily to be ascertained with

reference to the doctrines of that religion itself. If the tenets of any religious sect of the
Hindus prescribe that offerings of food should be given to the idol at particular hours of
the day… all these would be regarded as parts of religion and the mere fact that they
involve expenditure of money or employment of priests and servants or the use of
marketable commodities would not make them secular activities partaking of a
213
Rajeev Bhargava, Indian Secularism: An Alternative, Trans-Cultural Ideal In Political Ideas In Modern India:
Thematic Explorations 285, 297 (2006).
214
State of Bombay v. Narasu Appa, AIR Bom 84, 96 (1952).
215
The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri
Shirur Mutt, SCR 1005 (1954).
87

commercial or economic character; all of them are religious practices and should be
regarded as matters of religion within the meaning of article 26(b).”
Although, initially the doctrine was enacted singularly to facilitate adjudication in grey areas
of law and religion and focused on ascertaining the secular quotient of any religious practice,
a major shift occurred in its application in the judgment of Ram Prasad Seth v. State of Uttar
Pradesh216. The Court used the expression ‗essential part of the Hindu religion‘, thereby
birthing an analytical drift from its emphasis on what is ―essentially religious‖ to what is
―essential to the religion.‖ The particular judgment encumbered the Court with a duty to not
gauze the religiosity of a practice but the essentiality of the practice to the religion.
In 1964, in the case of Tilkayat Shri Govindlalji Maharaj v. the State of Rajasthan and
Others217, the Court unprecedentedly combined the two interpretations and adopted a novel
approach. It was held that ‗the court may have to enquire whether the practice in question is
religious in character, and if it is, whether it can be regarded as essential to the religion‟.
THE FALLACY OF THE TEST
The doctrine of essential religious practices self-depreciates in its emphasis on the element of
essentiality while determining the constitutionality of any religious practice. Not only does it
place the adjudicatory body at a theological mantle, it grapples with deep-rooted, perpetuated
spiritual beliefs with the inefficient hands of a few collective individual minds. Firstly, the
doctrine is judge-centric and flares judicial activism in spheres that even the legislature
affords hesitant codification and executive treads with restrained implementation. Secondly,
the undetermined scope of the doctrine fails to distinguish legitimate interference from undue
pressure in many cases. Furthermore, the doctrine can spiral into an easy political tool,
purposively molded to befit the whims of existing governments that intend to exercise
unwarranted judicial-control. Although the doctrine aims at expansion of equality law, it has
contributed to a sense among religious traditionalists that there has been an inversion that has
reduced them to minorities writhing to require protection from an overwhelming liberal
orthodoxy.
(a) Judges as pivotal players
216
Ram Prasad Seth v. State of Uttar Pradesh, AIR All 411, 444 (1957).
217
Tilkayat Shri Govindlalji Maharaj v. the State of Rajasthan and others, 1 SCR 561 (1964).
88

The role of judiciary in contemporary democratic reality is of utmost importance. The judicial
processes are not only utilized by social activists, but also by secular and religious groups
who place reliance on favorable litigation to mold societal norms in accordance with their
moral and political preferences. The said setup continually evidences the sheer omniscience
of law that offers the mechanism for effectuating changes and remedying conflicts. 218 The
judiciary is no more an extraneous authority on law, rather an exponent of progressive ideals,
which strongly influences interpretations of fundamental rights to align them with the goals
of an egalitarian, pluralistic society. Given its overreaching ambit, judicial discretion is a
contentious blessing, the bittersweet consequence of which makes judges pivotal players in a
democracy.
Although judicial activism guarantees a strong judicial review, in the light of the ERP
doctrine, emphasis is often drawn towards the excessive power conferred upon the judges.
The rise of judicial activism coincides with a divergence in strictly democratic practices, as a
body of unelected and unaccountable individuals can veto the popular statutory or executive
choice.219
In the recent judgment of Sabarimala Temple220, Justice Indu Malhotra has attempted to
delimit the all-embracing determinative power of the Court under the doctrine. Justice
Malhotra‘s dissent underscores the practical necessity of restrained exercise of the essential
religious practice test. The ERP doctrine allows judges to periscope into matters of religions
through lenses of morality and rationality. The imposition of an assimilationist approach on
religious denominations by the Courts under the guise of overarching public interest deprives
the former from practicing and professing their religion freely, thereby reducing the
provisions on religious freedom to hollow declarations.
(b) Element of essentiality

A major determinant of the Essential Religious Practice doctrine is its element of essentiality.
Although during the Constitutional debates the aim was to segregate essentially religious
practices from essentially secular practices, the doctrine underwent varying judicial
interpretations that emphasized not upon the secularity of a religious practice but upon its
essential or integral nature in context of the religion. In another case, the doctrine was applied
to distinguish mere superstitions from religious beliefs.
218
F. James Davis, Society and the Law: New Meanings for an Old Profession, 39 (1962).
219
Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L.J. 1346, 1363 (2006).
220
Indian Young Lawyers Association and Others v. The State of Kerala and Others, SCC OnLine SC 1690
(2018) [Hereinafter referred to as ‗Sabarimala temple entry judgment‘].
89

The debate around the element of essentiality manifests two approaches. The liberal
methodology (as adopted in Sabarimala temple entry judgment) is often characterized by its
pliability to accommodate shifting social dynamics. The aforementioned approach expounds,
“the test of essentiality is infused with … necessary limitations…, limitations that are
grounded in constitutional morality, and the constitutional values of dignity and freedom.”
On the contrary, the traditionalist methodology propagates a more cohesive analysis. The test
of essentiality, according to this approach, is based on internal dissent within religious
denominations, obliterating any requirement of constitutional conformity. It strictly
propounds that only in-group dissenters can question the essential nature of a practice
irrespective of whether or not the practice meets constitutional values.
(c) Conflict between right to equality and right to freedom of religion

The fundamental rights enshrined in Part III of the Indian Constitution appeal to the
quintessence of humanity. These rights form a part of the basic structure of the Constitution.
Article 14 and Article 25 of the Constitution enshrine the right to equality and right to freely
practice and profess religion, respectively. The Constitution‘s emphasis on non-
discriminatory existence is reinforced by way of a fundamental guarantee in Article 14 that
precariously interferes with the boundaries of Article 25. The core of Article 14 fixates at
legitimizing pervasive equitability and lack of any discriminatory or prejudicial act among
masses, irrespective of caste, creed or sex; quite contrastingly, Article 25 promotes group
autonomy, reflecting constitution‘s commitment to pluralism and diversity.
(d) Whimsical nature of the doctrine

The essential religious practice finds no explicit mention in the Constitution of India. The
doctrine is largely derived from repository of case laws. The characteristic irregularity of the
doctrine can be attributed to its misplaced focus on the contentious element of essentiality
and judge-centralism. As a result of extensive judicial scrutiny based on ambiguous
considerations, the doctrine has failed to enact a consistent approach. Firstly, the Courts due
to lack of a simplified principle switched from one adaption to another in the initial years of
its application. Whilst in Ram Prasad Seth v. State of Uttar Pradesh, the Court analyzed
whether practice is ―essential to the religion‖, in the judgment of Durgah Committee, Ajmer
v. Syed Hussain Ali and Others221, the Court ran the two tests of ―essentially religious‖ and
―essential to the religion‖ together, attempting to distinguish between religious and
221
Durgah Committee, Ajmer v. Syed Hussain Ali, 1 SCR 383 (1962).
90

superstitious. In the judgment of Tilkayat Shri Govindlalji Maharaj v. the State of Rajasthan
and Others, the Court went ahead from equating the two tests to separating them as distinct
steps in one unified test.
The legal sanity of subjecting fundamental rights issue of a population of billions to such a
whimsical doctrine is questionable. The rampant use of ERP test portends a disorderly
regime, crippled in undefined haze of state and religion.
CONCLUSION
The Indian Constitution does not recognize one religion as a state religion. State and religion
in modern times are in a state of pitiable contradistinction to each other. A moderate antidote
for these conflicts has been to separate the spheres of political and religious affairs. However,
even as the state embraces strict neutrality between various faiths, elimination of
discrimination cannot be guaranteed. Every religion entails a distinct plethora of essential
rites. To adopt a uniform law or a law selectively prohibitive of acts of one religion infuses a
new version of disparity. The State‘s interference in matters of religion has to be minimalistic
which can be achieved only through a restrained exercise of the Essential Religious Practice
doctrine. The dissenting judgment in Sabarimala Temple issue exemplifies a realist
adaptation of essential religious practice test as opposed to the utopian model founded on
ambiguous constitutional directives. The Essential Religious Practice test should only be
limited to matters of religion that are pernicious, oppressive and evil. For striking a just
balance, the Court‘s discretion should always be available as an inherent power for protection
of guarantees under Article 25 and 26 but the use of this power should be cautiously
refrained.
91

CONVENTION ON THE RIGHTS OF PERSONS WITH

DISABILITIES & DILUTION OF SEPARATION OF POWER BY
THE SUPREME COURT: A BENEVOLENT HYPOCRISY
Authored by Shivam Sharan
Student of NALSAR University of Law, Hyderabad.
shivam.ssharan@gmail.com
INTRODUCTION
International Law uses to have a huge impact on the framing of domestic law in India.
Especially, when there is no legislation in place which can govern the action(s) which are in
contravention to the rights provided by Part III of the Constitution222. Treaties are one such
source of international law. They are basically a covenant between two or more nations
agreeing to certain terms. In this age of globalization, the numbers of bi-national and multi-
national treaties are increasing.
In order to incorporate the laws evolved through treaties and other international covenants,
India follows the dualist approach. This is a concept explaining the relationship between
treaties and domestic law. In the dualist approach, the international law and the domestic law
are treated differently and domestic law is given preference in the internal legal system of a
country. However, this does not mean that domestic law is treated as superior to international
law.
The constitution also provides for honoring the treaties and international law under various
articles. Many times, due to the exigency of defending an individual‘s right, the court uses the
treaties and other international law to interpret the domestic law, provided they do not go in
contravention to the domestic law.
This practice of the court has been the topic of a contemporary debate as allegations are
usually made that the court, by means of such practice, dilutes the division of power and
overacts. Due to this, though formally India seems to be a follower of dualism approach,
practically seem to be adhering to monism.
This essay will deal with the same situation, in a narrower way. The author will be dealing
with United Nations Convention on the Rights of Persons with Disabilities (hereinafter,
222
Indian Const. Part III.
92

CRPD), which is an international human rights instrument and how it led to the judicial
internalization and dilution in the separation of power.
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES AND

SUPREME COURT
India ratified the Convention on Rights of Persons with a Disability back in the year 2007223.
This proved to be a step of paramount importance for the development of laws related to
disability. The convention was fundamentally different from the then existing legislation,
known as the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full
Participation) Act 1995224, as CRPD was solely based on the model of rights of an individual,
as against the medical model which was the sole basis of latter. The ratification by India
expedited the need for legislation which could cater to the need of the disables and could help
them claim their rights.
Since there was a gap between the ratified convention and the principle usage of the same
along with the absence of any proper legislation, the courts used the convention as a sole
basis in certain cases to grant the parties their rights. This act of filling the gap can be done in
one of the following ways225:
1. In case the international law has been incorporated in domestic law but is ambiguous,
then the interpretation of the same can be done by the court in a way which is
harmonious to the ratified international source.
2. In case the incorporation has not been done, the court can direct the state to honor such
law and give effect to the same.
3. In an addendum to the aforementioned, the court can also ―judicially incorporate‖ such
international law.
The court thus duly honored the wordings of Article 2 of the CRPD in order to accommodate
the people suffering from disability and appreciate the difference,
223
Convention on the Rights of Persons with Disability, available at
http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf.
224
Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995,
available at https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/51207/109498/F-1012820868/IND51207.pdf.
225
Lavanya Rajamani, International Law and the Constitutional Schema 143-159 (The Oxford Handbook of the
Indian Constitution).
93

―Reasonable accommodation means necessary and appropriate modification and

adjustments not imposing a disproportionate or undue burden, where needed in a
particular case, to ensure to persons with disabilities the enjoyment or exercise on an
equal basis with others of all human rights and fundamental freedoms‖226
This act of the apex court which could be identified as an act of judicial activism certainly
instigated the parliament to bring legislation for the people suffering from a disability which
is on the rights-based model in consonance with the CRPD.
SUPREME COURT RULINGS BASED UPON THE CONVENTION ON THE

RIGHTS OF PERSONS WITH DISABILITIES
Supreme Court has played a major role in the internalization of many international law
instruments, and in absence of proper legislation resorted to these sources which could be
regarded as law, for the deliverance of justice. Some of those cases where the Supreme Court
relied upon the provisions of CRPD, along with other authorities, to reach a conclusive
decision are:
(a) Suchita Srivastava & Ors. v. Chandigarh Administration227:

The case dealt with the legal capacity of a woman with mental retardation to take decisions
regarding her pregnancy. The plaintiff was raped in a government institution where she was
being treated, by a staff member. This led to pregnancy. The institution filed a petition in the
high court where it pleaded for the termination of the pregnancy through which the plaintiff
was going. This was granted by the high court on the grounds of the fact that due to mental
retardation, the woman will not be capable of taking care of the newborn. However, this was
overturned in the subsequent appeal which was made to the apex court.
The apex court took note of two things in this case:
1. A provision in the Medical Termination of Pregnancy Act, 1971228, which necessitated

the consent of the pregnant woman before terminating her pregnancy. This affirmed the
reproductive rights of the plaintiff in this case.
2. Principles in the international arena to safeguard the right of the person suffering from
any kind of disability. CRPD was referred to in this case.
226
Supra 223, art. 2.
227
Suchita Srivastava & Ors .v. Chandigarh Administration, AIR 2010 SC 235.
228
The Medical Termination of Pregnancy Act, 1971, Sec. 3(4)(b), available at http://tcw.nic.in/Acts/MTP-Act-
1971.pdf.
94

(b) Sambhavana v. University of Delhi229:

The case here was filed by an organization, where it appealed to the court to direct the
respondent University for bringing changes in its curriculum, methods of imparting education
and conducting examinations, along with fulfillment of other necessities which a differently
abled person (primarily, a visually impaired person) would need. Supreme Court looked at
this case through the lens of Article 24230 of the CRPD and asked the University to bring
changes which could address the grievances raised by the organization.
(c) Jeeja Ghosh and Ors. v. Union of India231:

This case is one of the recent judgments by the apex court which affirmed the right of the
people with disabilities to live their life with dignity. The case involved a forced de-boarding
of a passenger (Jeeja Ghosh), from the flight due to her disability. The court relied on the
CRPD while upholding the right and dignity of the plaintiff and also referred to the VCLT in
order to establish the same as an authoritative source.
The three case laws mentioned above has been a breakthrough in forming a foundation of
laws related to disability and for providing the rights to the needy faction of the society.
ANALYSIS OF THE USE OF CONVENTION OF RIGHTS OF PERSONS WITH

DISABILITIES BY THE SUPREME COURT
The Supreme Court from time to time by incorporating the provisions of CRPD insinuated
that the existing domestic legislation was not accommodative enough to impart justice to the
people who were denied the right to live with dignity. Additionally, it also helped in
internalizing this international law which was ratified by India in the manner that it
established CRPD as a legitimate authority to be followed.
Article 51(c) of the constitution states that:
―the state shall endeavor to foster respect for international law and treaty obligations in
the dealings of organized peoples with one another‖232
Numerous pronouncements of the courts over the years have honored this provision to the
extent where it does not contravene to the existing domestic law. In the case of Suchita
229
Sambhavana v. University of Delhi, AIR 2013 SC 3825.
230
Supra 223, art. 24.
231
Jeeja Ghosh and Ors. v. Union of India, AIR 2016 SC 2393.
232
Indian Const. art. 51(c).
95

Srivastava,233 the court relied largely on two international human rights instrument. One, the
United Nation Declaration on Rights of Mentally Retarded Person; and two, Convention on
the Rights of the Persons with Disabilities.
―50. Our conclusions in the present case are strengthened by some norms developed in the
realm of international law. For instance, one can refer to the principles contained in the
United Nations Declaration on the Rights of Mentally Retarded Persons, 1971
51. In respecting the personal autonomy of mentally retarded persons with regard to the
reproductive choice of continuing or terminating a pregnancy, the MTP Act lays down
such a procedure. We must also bear in mind that India has ratified the Convention on the
Rights of Persons with Disabilities (CRPD) on 1-10-2007 and the contents of the same are
binding on our legal system.‖234
Judicial activism in such cases emerges in an obvious manner as the court knowingly or
unknowingly in this manner hints towards making the ratified covenants and conventions
binding on the Indian mass. The mandate provided by virtue of Article 253235 to the other
pillars of democracy that is the legislature and the executive to make, implement and
internalize the laws, is curtailed by the judiciary itself. However, such actions do not come
with threats to the system, but also brings in beneficial actions for the public at large. The
courts are bestowed with the responsibility of looking after the rights of the minority which
are denied. It would be unfair if, in order to maintain the structure of the governance, the
rights of the individualare curtailed. Further, it is the executives who ratify the treaties with or
without caveats for certain articles of any international instruments. Considering this, it
would be only unfair to say that the executive does not get a say in this matter. Thus, this case
could be said to be an ice breaker for the incorporation of the CRPD rule in the Indian
scenario, while the then existing PWD Act236 was failing miserably unaccommodating the
grievances of the individuals.
In Sambhavna v. University of Delhi237, though the court relied on the then PWD act, it had
to stress upon the viability of the international instrument too for better enforcement of the
directives. The court mentioned here as well about the binding effect that the CRPD now has
post the ratification by India.
233
Supra 227.
234
Id.
235
236
Supra 224.
237
Supra 229.
96

―12. The grievance that has been accentuated by Mr. Sinha with real concern is that there
has been no redressal of the grievances pertaining to modification in the examination
system and restructuring of the curriculum. Be it noted, India has ratified the United
Nations Convention on the Rights of Persons with Disabilities. It has become operative
from May 2008. Article 24 of the said Convention deals with the education of persons with
disabilities. It gives emphasis on the development of human potential, sense of dignity,
self-worth, and strengthening of respect for human rights and creativity.
13. We are absolutely conscious that there is an enactment but India has shown its
concern by ratifying the said Convention and, therefore, we have reproduced the same.‖
The court here emphasized the manner in which the University is mandatorily expected to
cater to the need of the visually impaired students and have to be as accommodative as
possible.
Jeeja Ghosh238 case is another one of those cases which could be said to be the one which
expedited the passing of the Rights of Persons with Disabilities Act, 2016239. The judgment
heavily relied upon two international instruments. One being the VCLT240 and the other is the
CRPD.
This judgment had some confusion though. Firstly, the court relied upon the VCLT of 1963.
However, the point worth taking note is that the law of treaties concluded in the year 1969.
Alternatively, it was enforced in the year 1980. In light of this, the nexus to the 1963‘s VCLT
cannot be traced. Secondly, the court cited Article 27 of the VCLT, whereas the correct
provision should have been Article 26 of the same. On connecting the dots, it is only coherent
if the court is trying to bring forth the issue of pacta sunt servanda at this juncture in order to
establish the binding effect of the CRPD. Article 27 deals with the negation of the excuse of
domestic law for the actions which goes in contravention to the international law, whereas,
Article 26 deals with the binding nature of treaties which are entered by the countries. Thus,
it is uncertain as to how viable is Article 27 in this regard.
These cases set the foundational stone for the new PWD act which was drafted in consonance
with the CRPD. Further, the cases which emerged subsequent to these cases incidentally
brought in the use of the CRPD but majorly relied upon the Disability Act of 2016. This
238
Supra 231.
239
The Rights of Persons with Disabilities Act, 2016, available at
http://www.disabilityaffairs.gov.in/upload/uploadfiles/files/RPWD%20ACT%202016.pdf.
240
Vienna Convention on Law of Treaties, 1969, available at
https://treaties.un.org/doc/publication/unts/volume%201155/volume-1155-i-18232-english.pdf.
97

signifies the role of the Supreme Court to an extent in delivering justice and enforcing
international law instrument but also strengthen the conjecture that the same guardian of civil
and political rights is responsible for diluting the separation of power, which seems to be a
case of benevolent hypocrisy.
CONCLUSION
The mentioned case laws reviews signify that the Indian Courts are developing their
jurisprudence in tandem to the international law instruments. It is also seen that India is in a
fix regarding its approach towards international law and its application. The Court is making
India more inclusive and bringing a paradigm shift on disability rights. It is imperative that
this policy is welcomed with some caveats. Firstly, international law comes in all shapes,
sizes, and colors. There could be several branches of international law which might not be
wholly fit for India, and the courts need to be vigilant about it when they incorporate it.
Secondly, there is a need to identify the relevant international law for the Indian scenario.
Thirdly, the courts need to take into account the fact that the executive and the legislature also
have their own responsibilities of tailoring international law according to the domestic
situation and needs. The courts cannot overlook the separation of power and need to respect it
as well.
India still requires a lot of clarity on the usage of international law. Judiciary needs to
understand the fact that Article 51(c) talks about making an effort to incorporate international
law and not achieving the results by bringing into action the practice of judicial activism.
98

ANALYSING THE PRACTICAL IMPLICATIONS OF A RIGHT

TO PRIVACY: STATE SURVEILLANCE AND CONSTITUTION
Authored by Anubhav Khamroi & Anujay Shrivastava*
ABSTRACT
Privacy is the most revered right in our society, integral to human existence, however, always
the greatest bugaboo for the State. State Courts, across jurisdictions, have been extremely
impetuous in adopting privacy as their go-to justification, without adequately clarifying the
import and scope of “privacy” as a right. Such “incoherence” in judicial decision-making
significantly impacts doctrinal clarity and conceptual consistency. Furthermore, the varying
theories on privacy have also contributed to its theoretical indeterminacy. In this Paper, we
shall evaluate and critique the existing ideas and notions of privacy, while also attempting to
draw out an alternate theoretical framework, in order to address the demands of
contemporary digital world. We believe at a time when there is increasing surveillance by
both State and Non-state actors, it is imperative to rethink the contours of “Privacy”.
Further, we have addressed the contemporary privacy concerns by evaluating the risks of
potential breach by social-media forums, such as Facebook and Google, and argued that
“threat on privacy” is not necessarily akin to “loss or breach of privacy”. We have also
attempted to deal with the issue of right to privacy over “documented personal information”,
in light of the recent Aadhar judgement. On that note, we have inquired into the
proportionality test adopted by the Indian Supreme Court in the landmark Puttaswamy
decision, and then compared it with similar tests used in foreign jurisdictions to adjudicate
the legality of State surveillance programmes.
Key Words: Aadhaar, Control, External Interference, Informational Privacy, Internal

Reservation, Limitation, Personal Information, Privacy, Social-Media.
INTRODUCTION
―Privacy‖ is one of the most cherished right in human society. Yet, unfortunately, privacy has
historically been a nebulous concept, constantly evading the ‗trap‘ of a singular definition.241
* Students of Jindal Global Law School, O.P. Jindal Global University. The authors are immensely grateful to
Mr. Pritam Baruah, Associate Professor of Law and Executive Director - Centre on Public Law and
Jurisprudence, at Jindal Global Law School, Mr. Sachin Dhawan Esq., Assistant Professor of Law and Assistant
Director, Centre for Environment and Climate Change Studies, at Jindal Global Law School and Mr. Amartya
99

However, philosophers and legal scholars have also been equally adamant and have
constantly made efforts to create a linear narrative of ―Privacy‖. Today, while there exists a
structured discourse on privacy, in both philosophical and legal terms, we are yet to formulate
a practical definition of privacy which can meet the demands of the fast-evolving digital
world.
Unfortunately, in recent times, the judicial trend has predominantly been to apply ―privacy‖
to a wide range of cases, without sufficiently clarifying the scope and contours of such a
right. This regrettably adds an ad-hoc flavour to adjudication and departs from the
longstanding principle of ―coherence‖ in judicial decision making. 242 The final decision or
outcome of a case is important indeed, but the means or reasons underlying that final
outcome are equally significant.
Recalling the words of Prof. Pritam Baruah (in an article discussing core principles of
adjudication) –
―Answers to the theoretical questions are the basis for decisions on specific issues
before a court. Answering the theoretical question demands an explanation of the
concepts that a court employ. This must be an explanation in terms of reasons,
which explain why courts take a particular view of the concepts involved and
not another. Courts need to establish a connection between what they take the
concepts to be, the specific rights that are being debated, and what is required by the
application of those concepts. Here one might object that courts often do not fully
explain the reasons for a decision….‖ [emphasis added].243
Sharan, Judicial Clerk to Hon‘ble Mr. Justice L. Nageswara Rao, Supreme Court of India, for their feedback and
guidance. An earlier version of this Article was presented in a seminar by Mr. Khamroi for the Elective Course
titled ―Constitutional Values in Courts: Dignity and Liberty‖ taught by Prof. Baruah from February to May
2018, at O.P. Jindal Global University, Sonipat. This Article is a follow-up to an earlier Article published by the
authors in: Anubhav Khamroi & Anujay Shrivastava, The curious case of Right to Privacy in India, 2(12) Indian
Constitutional Law Review 1-2 (2017), and focuses on ―Informational‖ aspect of Privacy. Mr. Shrivastava had
subsequently published a follow-up Article to the preceding Article on ―Decisional‖ aspect of Privacy in:
Anujay Shrivastava, Reconstructing the Decisional Paradigm of Privacy: Crafting a new Anti-Manifesto
Grounded on Shadows of The Enabling School, 6 Indian Constitutional Law Review 7-23 (2018). The authors
recommend these Articles for a further read on Privacy. However, responsibility for the ideas expressed or/and
any mistakes in the present Article are entirely theirs. Authors can be reached at 15jgls-akhamroi@jgu.edu.in
and 15jgls-ashrivastava@jgu.edu.in.
241
Anubhav Khamroi & Anujay Shrivastava, The curious case of Right to Privacy in India, 2(12) Indian
Constitutional Law Review 1-2 (2017).
242
Pritam Baruah, Logic and Coherence in Naz Foundation: The Arguments of Non-Discrimination, Privacy
and Dignity, 2 NUJS Law Review 505 (2009).
243
Pritam Baruah, Human Dignity in Adjudication: The Limits of Placeholding and Essential Contestability
Accounts, Canadian Journal of Law and Jurisprudence, 27 Can. J.L. & Juris. 329-356 (2014) at ¶ 15.
100

In our opinion, such decisions play a lead role in creating an undesired haziness in the
discourse and jurisprudence on privacy. Further, this ―situation of conceptual bankruptcy‖,244
wherein we understand privacy as a ―bundle of rights‖ leads to juxtaposition of the specific
roles of one onto the other.
In this paper, we shall set out to evaluate and analyse the existing formulations of ―Privacy‖
and subsequently propose an alternate structure to the discourse on Privacy, suitable to the
contemporary needs. Therefore, in Part I, we shall analyse and critique the existing theories
of Privacy, primarily - Thomson‘s and traditional notions of privacy, Control-based theory,
Accessibility-based theory, and W. A. Parent‘s ―New Definition‖.
Further, in Part II, we shall attempt to draw out a conceptual framework by providing an
alternative definition of Privacy, in light of contemporary technological advancements. Our
definition shall try to address the drawbacks of the existing theories, and will apply to both
―documented‖ and ―undocumented‖ personal information.245 According to W.A. Parent,
―documented personal information‖ includes publicly available information, such as police
records, court proceedings and judgements, government archives, public inspection reports
etc.246 According to him, ―documented personal information‖ is not protected by Privacy and
argues that its inclusion within the Privacy framework would ―needlessly blur the
fundamental distinction between the private and the public.‖247 We shall put forth our
disagreements with such a restrictive understanding of Privacy in the latter sections of our
Paper.
In Part III, we attempt to take the proposed definition forward and inquire into the scope and
effects of such a right in protecting ―undocumented personal information‖ available on social
media sites or stored in an electronic database. We shall rely on the ideas of ―legitimate
expectation of privacy‖ and ―threatened loss counterexample‖ to address the risks of potential
breach vis-à-vis the right to privacy. We shall conclude this section by arguing that mere
―threat on privacy‖ is not necessarily akin to ―loss or breach of privacy‖. In Part IV, the
Paper shall address the operation of right to privacy over ―documented personal information‖,
in the context of the recent Aadhar judgement
244
The use of the phrase is inspired by W.A. Parent. See, W.A. Parent, Recent Work on the Concept of Privacy,
20(4) American Philosophical Quarterly 341-355 (1983).
245
Id.
246
Id.
247
Id., at p. 347.
101

In Part V, we shall analyse the scope of limitations on Privacy in Indian constitutional

jurisprudence and consequently, consider situations wherein State surveillance ‗may‘ pass
constitutional muster. Finally, in Part VI, we shall attempt a comparative analysis (or a tour
d‟ horizon study) of several foreign decisions, which had considered the legality and
constitutionality of State surveillance programmes. This is to understand how different courts
have articulated the confines or limits of right to privacy and tests adopted to evaluate the
legality of legislative actions.
Part I. ADDRESSING THE SITUATION OF “CONCEPTUAL BANKRUPTCY”:

CRITIQUE OF THE EXISTING THEORIES ON PRIVACY
Privacy must be understood as a right which prevents unwanted access to ―personal

information‖ and impede any non-consensual/wrongful attempts at acquiring such
information [explained in Part II]. However, there are several theories on Privacy which
confuses its application with that of other concepts like Liberty, Autonomy, Dignity,
Solitude, and has therefore transformed Privacy into an indeterminate concept. It shall be our
endeavour to evaluate the major theories on Privacy and point out the flaws in them.
(a) Privacy as a “bundle of rights”: Traditional Understanding

At the outset, we strongly disagree with the idea, advocated by Thomson and other
‗traditional‘ privacy theorists, that privacy has no single meaning. According to this
traditional account, privacy stems from a diverse set of rights, such as ―right to freedom from
disclosure of personal information‖, ―independence in making fundamental decisions without
coercion‖, ―right to make bodily decisions‖, etc.248 All cases involving the aforementioned
questions of law can be resolved by an appeal to various other constitutional values, such as
―Liberty and Self-Determination‖, ―Autonomy or Freedom of Choice‖, ―Right against
trespass‖, ―Tort of Nuisance‖ etc.
Posner rightly opined - ―we already have perfectly good words - liberty, autonomy, freedom
to describe the interest in being allowed to do what one wants (or chooses) without
interference. We should not define privacy to mean the same thing and thereby obscure its
248
Judith Jarvis Thomson, The Right to Privacy, 4 Philosophy and Public Affairs 295-315 (1975); See Ernest
Van Den Haag, On Privacy, in Privacy, Nomos Xiii: Yearbook Of The American Society For Political And
Legal Philosophy 149 (J. Roland and J.W. Chapman ed., Atherton Press 1971).
102

other meanings‖.249 Thus, there is no need to unnecessarily expand and obscure the meaning
of Privacy.
In our opinion, legal scholars and courts across the world are equally responsible for creating
the unnecessary haziness in the discourse on Privacy. Over the years, courts have used
Privacy to justify their judgements in several cases, where they could have simply used other,
and much more contextually appropriate, constitutional values and principles. We would like
to put forth three decisions of the US Supreme Court as appropriate illustrations of our claim:
Illustration I: In Griswold v. Connecticut (1965),250 the US Supreme Court was hearing a

challenge to a law forbidding the use of contraceptives. The Supreme Court struck it down on
the ground of violation of right to privacy. However, in our opinion, the Supreme Court could
have easily used more suitable constitutional values such as Liberty, Autonomy or even Right
to Life.
Illustration II: In Loving v. Virginia (1967),251 the US Supreme Court was adjudicating a
challenge to a statute that prohibited certain marriages solely on the basis of racial
classification. The Supreme Court struck down the statute and subsequent decisions have
read this decision as establishing ―a right to privacy in marriage-related choices‖. However,
in our opinion, the Courts would do better to use other principles such as Right against
discrimination and Personal Liberty.
Illustration III: In Stanley v. Georgia (1969),252 the US Supreme Court was deciding the
challenge to a Georgia statute that made mere private possession of obscene material an
offence. The Supreme Court struck down the statute on the basis of a right to privacy vis-à-
vis right to control one‘s thoughts violation. Alternatively, the Supreme Court could have
simply used Freedom of Speech and Expression, Liberty, Autonomy as grounds to strike
down the law.
(b) Control-based theory of privacy

Control-based theories of Privacy state that one should have absolute control over one‘s
personal information and be able to share it at its own will.253 ―Control‖ would include the
―ability to prevent disclosure of personal information to individuals, other than those to
249
Richard Posner, The Economics Of Justice, 274-5 (Reprint ed., Harvard University Press 1981).
250
Griswold v. Connecticut, 381 U.S. 479 (1965).
251
Loving v. Virginia, 388 U.S. 1 (1967).
252
Stanley v. Georgia, 394 U.S. 557 (1969).
253
Alan Westin, Privacy And Freedom 1-22 (1st ed., 1967).
103

whom we have voluntarily revealed it‖.254 However, the ability to exercise ―control‖, which
is synonymous to the absence of coercion, is not always a necessary pre-condition to the
enjoyment of Privacy.
For example, in cases of disabled persons, comatose patients and patients suffering from
acute paralysis, the privacy of those individuals is protected at all times, through their family
members and doctors [sharing a “privileged relationship”], even though those individuals
lack the ability to exercise ―effective control‖ over their own acts. In this context, Vincent J.
Samar255 presents an illustrative contrary example by noting that – while prisoners have the
absolute ability to exercise ―control‖, they may not be free from the gaze of the guards and
thus, does not effectively enjoy Privacy.
(c) Accessibility-based theory of privacy

Accessibility-based theories conceptualize Privacy as one‘s right to take away the ability of
others to access or acquire their personal information.256 According to such theorists, the
mere possibility that others could acquire personal information constitutes a violation, even
when there is no actual attempt to acquire it.257 Such an account of privacy would render all
forms of surveillance, state welfare & census programs, a doctor-patient, a lawyer-client
relationship illegal and purposeless.
(d) W.A. Parent‟s “new definition” of privacy

W. A. Parent defines Privacy as ―not having undocumented personal information about
himself known by others‖.258 We strongly disagree with his idea of acquisition of
―undocumented personal information‖ as the only ground for invoking right to privacy.
Parent‘s own account could lead to undesirable results when tested against the
counterexamples he himself used to attack other theories. If we follow his definition, then an
attempt to acquire personal information, which is already available in public records, by an
unknown person/entity from private spaces of an individual by using X-ray devices would
254
Id.
255
Vincent Joseph Samar, The Right To Privacy: Gays, Lesbians, And The Constitution, 254 (1991); Arthur
Miller, The Assault On Privacy (1971); Robert Gerstein, California's Constitutional Right to Privacy: The
Development of the Protection of Private Life, 9 Hastings Constitutional Law Quarterly 385-427 (1982);
Geoffrey Stone, The Scope of the Fourth Amendment: Privacy and the Police Case of Spies, Secret Agents, and
Informers, American Bar Foundation Research Journal 1191 (1976).
256
Roger Ingham, Privacy And Psychology, 35 (1978); Richard Parker, A Definition of Privacy, 27 Rutgers
Law Review, 275-296 (1974).
257
Irwin Altman, Privacy? A Conceptual Analysis, 8 Environment and Behavior 7-29 (1976); W.A. Parent,
Recent Work on the Concept of Privacy, 20(4) American Philosophical Quarterly 341-355 (1983).
258
W.A. Parent, Recent Work on the Concept of Privacy, 20(4) American Philosophical Quarterly, 346 (1983).
104

not constitute a violation of Privacy.259 Thus, the definition partly fails due to this erroneous
classification.
Part II. RETHINKING THE CONTOURS OF “PRIVACY”
We endeavour to provide an alternate structure to the discourse on privacy. Accordingly,

Vincent had opined -
―a judicially useful definition of privacy must take into account the effect that one's
actions may have on society, so that the concept is not broader than the ultimate
value under which action will be allowed‖ [emphasis added].260
We believe a useful and substantive definition of Privacy shall possess the ability to
answer the following two questions:
1. Why do we need Privacy as a separate and distinct right?

2. What would be the exact scope and limits of such a right?
(a) Why do we need privacy as a separate and distinct right?

We shall commence by outlining the purpose of having a separate right to Privacy (subject to
the specificities of the jurisdiction in question), which has been commonly referred to as an
―empty vessel‖ or a ―hypothetical right‖.261 It is imperative to note that other constitutional
values, such as liberty, autonomy, dignity provide agency to an individual to perform certain
private acts, without any “external interference”. However, these values do not affect the
psychological aspects of the acts committed by a person. Privacy plays an important role in
allowing an individual to shape their ―personality‖ in a manner they desire, which is a
necessary pre-condition to the performance of a private act without any “internal
reservation”.
We propose to draw this distinction between ―external interference‖ and ―internal

reservations‖, in an attempt to better explain the import and scope of Privacy. While we
generally tend to focus on ―external interferences‖ in our private lives, we often fail to give
much attention to the ―internal reservations‖ we hold due to the fear of making our ―personal
information‖ publicly available. In this context, it is of utmost importance to explain the
meaning of ―internal reservations‖ with great care.
259
Samuel C. Rickless, The Right to Privacy Unveiled, 44(1) San Diego Law Review 7-22, 39-40 (2007).
260
Vincent Joseph Samar, The Right To Privacy: Gays, Lesbians, And The Constitution, 59 (1991).
261
Mary D. Fan, Constitutionalizing Informational Privacy by Assumption, 14 University of Pennsylvania
Journal of Constitutional Law 953 (2012).
105

We use the term ―internal reservation‖ in context of a person who has both the intention and
the ability to partake in a private act but is dissuaded due to an unknown fear of divulging
―personal information‖ integral or incidental to that act. Thus, it has a subconscious effect on
our minds, which creates a disparity between ―what we desire‖ and ―what we actually end up
doing‖. It is imperative to understand that protecting any information integral or incidental to
a private act is equally important for the successful performance and future continuance of
such an act, and thus, ought to be protected at a level equal to the act itself.
―Internal reservations‖ come into the picture even before the person has performed the
private act, and causes greater damage to the person‘s personality, than interferences from
third parties. We submit that - Privacy is the value that addresses the issue of ―internal
reservations‖, by protecting all information integral and incidental to the private acts of a
person, which are done in exercise of their liberty or autonomy. Furthermore, Privacy also
precludes all means of collecting such private information.
(b) What would be the exact scope and limits of such a right?
In our opinion, the Right to Privacy can be defined as the ―right to prevent others from
wrongfully, non-consensually or illegally accessing and/or misappropriating personal
information, notwithstanding the public availability of such information.‖ Here, it is
imperative to subject every word of the above definition to careful scrutiny and thus, can be
broken down into 3 parts:
i. Wrongful, non-consensual or illegal: right to impede others from accessing one‘s

personal information and consequently using it in a manner that was never consented
to by the person, whose personal information is in question, or obtaining such
information by violating the law or breaching an existing contract. The value of
―consent‖ plays a significant role in our account of Privacy.
ii. Personal information: Information that one does not want to be out in public, due to
various reasons, including the fear of being misrepresented to prospective employers,
spouses, colleagues etc.262 It would also include information available in public
records. Moreover, the nature of the information is of no consequence i.e. sensitive or
mundane in cases of breach of privacy, as has also been held in several judicial.263
262
Roland Garrett, The Nature of Privacy, 18 Philosophy Today 263-84 (1974); Raymond Wacks, The Poverty
of Privacy, 96 The Law Quarterly Review 73-90 (1980).
263
Digital Rights Ireland Ltd. v. Minister of Communications, [2015] QB 127 (Court of Justice of the European
Union); S. and Marper v. United Kingdom, [2008] ECHR 1581.
106

iii. Private: It would include any private space, including ―virtual spaces‖ of individuals
on social media interfaces.
iv. Access and/or misappropriate: Both are independent violations and are neither
inter-linked nor inter-dependent.
For Point (iv), it is necessary to clarify that, according to this definition, a privacy violation
shall occur as soon as there is any ―wrongful‖ access/acquisition of personal information, and
there is no need to wait till the acquired information is misappropriated or a private act is
hindered on the basis of such information. We would like to use a few examples to explain
the operation of above definition:
Example I [wrongfully/non-consensually accessing personal information]: A and B want

to partake in consensual sex and do so without informing anyone i.e. a third party. Their
intimate act is protected from any external intrusion by values such as Liberty or Right to
lead a meaningful Life or Autonomy. But any information integral or incidental to the act,
such as place and time of the act; whether they used contraceptives; whether the act was
hetro-sexual or homo-sexual in nature; is to be protected by Right to Privacy. Such personal
information is integral to the act and if C [a third party] is attempting to collect such
information by peeping through the window or by using an X-ray machine to look through
the walls, then that would constitute a Privacy violation.
Example II [misappropriation of consensually acquired personal information]: A and B

get involved in a consensual sexual relationship and after a few days B informs her/his sister.
Now, even after acquiring such information, B‘s sister cannot interfere as their private acts
are protected under guarantees of Liberty or Autonomy. Moreover, she also cannot divulge
such ―personal information‖ to any third party without the consent of A and B [Not A OR B,
consent of both the parties is required], as that would constitute ―misappropriation of personal
information‖.
Example III [notwithstanding the public availability]: X is a famous Bollywood celebrity

and his pictures are all over the internet, newspapers, magazines etc. However, if Y tries to
use an X-ray Camera to look through the walls of his bedroom and click his pictures, that
would constitute a major privacy violation. Therefore, the definition protected ―personal
information‖, even if they are already available in the Public.
107

Part III. RIGHT TO PRIVACY VIS-À-VIS “UNDOCUMENTED PERSONAL

INFORMATION”: CONTROL VS. PRIVACY DEBATE
In cases of social media sites/platforms, there exists a notion that we lose ―control‖ over our
personal information and the owners of those sites gain ―access‖ to them, once the
information has been shared them using their interface. However, we shall argue that –
i. First, it is not necessary to provide any ―personal information‖ to avail their services,
other than very basic information like name, age, country etc., which is necessary to
verify that one is a bonafide user;
ii. Second, once we have availed their services, it is our own decision to share any
―personal information‖ using their interface, which in itself involves a genuine
exercise of ―control‖; and
iii. Third, even if there is a subsequent ―loss of control‖, that does not necessarily entail a
―loss of privacy‖ over personal information.
No matter what, every individual retains their right to privacy over personal information,
even though that information exists only on a virtual space.264 There undoubtedly exists a
right to prevent the owners of those sites from ―wrongfully, non-consensually or illegally
accessing and/or misappropriating‖ whatever information was shared using their interface or
was stored in their database. An act of voluntarily sharing personal information over virtual
public interfaces does not automatically extinguish the ―Legitimate Expectation of Privacy‖
of the person disclosing such information.265 This is even more true in the contemporary age
as people disclose tons of personal information to third parties, while doing the most
monotonous activities.
It is certainly admitted and acknowledged that Facebook, WhatsApp, Gmail and all other
social media platforms, have the ―hypothetical ability‖ to access our personal information,
which is being shared using their interface. However, the possibility of such a breach actually
happening is extremely low, subject to certain exceptional cases. This is even more true in
light of the recent EU General Data Protection Regulations266 [hereinafter, ―GDPR‖] and
similar Telecom Regulatory Authority of India guidelines with regard to Data Privacy,
Data Protection and Cyber Security.
264
Katz v. United States, 389 U.S. 347 (1967).
265
United States v. Jones, 565 US 400 (2012); Riley v. California, 573 US (2014).
266
Intersoft Consulting – EU Information Portal, General Data Protection Regulation Final text neatly arranged,
EU Information Portal (May. 23, 2018), ( Dec. 04, 2018) https://gdpr-info.eu.
108

These regulations strengthen the philosophy underlying our definition of Privacy, which
helps in shaping one‘s personality and enables the person to freely exercise liberty or
autonomy without any ―internal reservation‖. Therefore, as per our definition, if the operators
of Facebook/Google attempt to access the user‘s private data, their acts would fall foul as
being ―non-consensually or illegally accessing personal information‖. Funnily enough,
―Calm‖ – a meditation and sleep assistant software, has recently added the full text of GDPR
to its collection of sleep stories and apparently ―a brief listen to it will be enough to cure even
the most wide-eyed of insomniacs‖.267
In any event, it is not to be forgotten that it is a result of our own ―choice‖ to – firstly, use
their interface and avail their services; secondly, voluntarily share personal information which
we would not have otherwise shared in a public space; and thirdly, to do so with the
knowledge of their ―hypothetical ability‖ to cause a potential breach. Moreover, the standard
of ―hypothetical ability‖ is too vague to make a strong allegation of privacy violation against
the owners of the social media sites.268
Moreover, their ―hypothetical ability‖ to access and misappropriate one‘s personal

information does not necessarily mean that one no longer enjoys the right to privacy over that
information.269 While the loss or lack of control undoubtedly ―threatens‖ privacy and creates
a risk of potential breach, it does not necessarily involve a ―breach of privacy‖. Thus, a mere
―threat to privacy‖ is not necessarily akin to ―loss or breach of privacy‖.270
The above argument can be better explained by employing the idea of a ―threatened loss
counterexample‖. One such illustration of a ―threatened loss counterexample‖, could be
found in Parent‘s271 work –
―Suppose A invents a fantastic X-ray device that enables him to look right through
walls. A then focuses the device on my home but refuses to use it. Since he certainly
has the power to find out everything that I am doing in my home it cannot be said that
I any longer enjoy control over personal information about myself vis-a-vis A…. Still
267
Trevor Mogg, EU‘s new data protection law being used as bedtime story by meditation app, Digital Trends
(Apr. 06, 2018, 12:50 AM), (Dec. 04, 2018) https://www.digitaltrends.com/mobile/gdpr-law-bedtime-story-
calm-app/.
268
American Civil Liberties Union (―ACLU‖), PRIVACY RIGHTS IN THE DIGITAL AGE: A Proposal for a
New General Comment on the Right to Privacy under Article 17 of the International Covenant on Civil and
Political Rights: A Draft Report and General Comment by the American Civil Liberties Union, ACLU (Mar. 01,
2014), (Dec. 04, 2018) https://www.aclu.org/sites/default/files/assets/jus14-report-iccpr-web-rel1.pdf.
269
Adam D. Moore, Toward Informational Privacy Rights, 44 San Diego Law Review 809-46 (2007).
270
Judith Jarvis Thomson, The Right to Privacy, 4 Philosophy and Public Affairs 295-315 (1975).
271
W.A. Parent, Recent Work on the Concept of Privacy, 20(4) American Philosophical Quarterly 344 (1983).
109

A has not invaded my privacy. He doesn't do that until he actually looks through his
device. So, while the lack of control certainly threatens privacy it does not
necessarily involve its loss. I will henceforth refer to this as the threatened loss
counterexample‖ [emphasis added].
Finally, the operators of those social-media websites cannot access or misappropriate one‘s
personal information, as that would be a major violation of various existing data privacy
laws, such as EU GDPR, Telecom Regulatory Authority of India (TRAI) guidelines and
might also constitute a breach of contract.272 Therefore, ―loss of control‖ over personal
information cannot be equated to ―loss of privacy‖, unless there is proof that they accessed
our personal information from their database, without our consent.
Part IV. DOES RIGHT TO PRIVACY EXIST OVER “DOCUMENTED PERSONAL

INFORMATON”?
We shall answer the aforementioned question in the affirmative and therefore, explicitly
depart from Parent‘s ―new definition‖ of Privacy. There does exist a similar right to privacy
over ―documented personal information‖ or in other words, information stored in public
records or government archives. This right imposes a duty on the State to use all personal
information/data collected under a law for legitimate purposes, and not ―wrongfully‖
misappropriate or disseminate them to third-parties without our prior consent.273
There is no difference in the duties imposed by the Right to Privacy on a private entity and
the Government, with regard to unauthorized use of collected information for extraneous
purposes.274 However, the right to privacy is not absolute in its operation against the State.275
In the Sections below (infra), we shall be discussing the scope of limitations that can be
imposed on the right to privacy by the State.
272
Asuncion Esteve, The business of personal data: Google, Facebook, and privacy issues in the EU and the
USA, 7 International Data Privacy Law (2017).
273
Whalen v. Roe, 429 U.S. 589 (1977); Francis S. Chilapowski, The Constitutional Protection of Informational
Privacy, 71 Boston University Law Review 133 (1991).
274
NASA v. Nelson, 562 US 134 (2011); Nixon v. Administrator of General Services, 433 U.S. 425 (1977).
275
Christina P. Moniodis, Moving from Nixon to NASA: Privacy‗s Second Strand- A Right to Informational
Privacy, 15 YALE J.L. & TECH. 142-43, 154-60 (2012); Richard A. Posner, Privacy, Surveillance, and Law, 75
University Of Chicago Law Review 245 (2008); Daniel J. Solove, ‗I've Got Nothing to Hide‘ and Other
Misunderstandings of Privacy, 44 San Diego Law Review 745 (2007).
110

Part V. SCOPE OF LIMITATIONS ON PRIVACY IN INDIA
The 9-judge bench of the Indian Supreme Court in Puttaswamy (2017) unanimously held that
right to privacy is a fundamental right, by virtue of being an ―intrinsic part of the right to life
and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of
the Constitution‖.276
There were varying opinions regarding what would be the most befitting test to examine the
legality of State intrusions into Privacy. However, the test laid down by Justice
Chandrachud277 at page 264, also supported by Justice Kaul278 at para 71 of his judgement,
should be considered as the majority opinion. In the subsequent Aadhaar judgement, the
majority opinion affirmed the above conclusion at para 89.279 Therefore, the test is as
follows:280
i. The action of the State must be empowered by a Law

ii. The proposed action must be necessary and also pass the test of legitimate aim
iii. The extent of interference with individual‘s privacy must be proportionate to the need
for such interference
iv. The law in question must also provide procedural guarantees against abuse of such
interference.
Kaul J. had suggested that Indian Government could consider data privacy laws of the
European Union,281 in order to facilitate safeguards against data infringement. The judges
have also recognized ―legitimate aims‖ of the State to include- National Security, identifying
and prosecuting criminal activities, situations that require Privacy to be balanced with other
fundamental rights.282 Moreover, the above exposition had a significant impact on two
aspects- first, the idea of ―coerced consent‖ covered under the pretence of providing social
and monetary benefits and second, State Surveillance.
276
Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, at Pg. 546 [Operative Order].
277
Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, Conclusion 3(H) of Chandrachud J.
278
Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶ 71 of S.K. Kaul J.
279
K.S. Puttaswamy v. Union of India, 2018 (12) SCALE 1, ¶ 89 of Sikri J.
280
K.S. Puttaswamy v. Union of India, 2018 (12) SCALE 1, ¶ 89 of Sikri J.
281
EU Publications Office, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27
April 2016 on the protection of natural persons with regard to the processing of personal data and on the free
movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (Text with
EEA relevance), Publications Office Of The European Union, (Apr. 27, 2016), (Dec. 04, 2018)
https://publications.europa.eu/en/publication-detail/-/publication/3e485e15-11bd-11e6-ba9a-
01aa75ed71a1/language-en.
282
Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶¶ 13, 14, 72, 73 of S.K. Kaul J.; ¶¶
180, 181 and Conclusion (5) of Chandrachud J.
111

A. COERCED CONSENT
The right to informational privacy has been explicitly recognized by Puttaswamy. This right
inheres the liberty of individuals to not be coerced into giving consent for a State welfare
program. In other words, individuals possess the right of ―informed consent‖ and can
willingly give up their personal data, if they want to avail the benefits under a social welfare
scheme.
This point has been immaculately articulated by Justice Kaul at para 70, wherein he held that
the ―State must ensure that information is not used without the consent of users and that it is
used for the purpose and to the extent it was disclosed.‖283 In order to provide an illustration,
he gave an example of posts on social media and observed that personal data revealed via
such posts ―is meant only for a certain audience, which is possible as per tools available,
then it cannot be said that all and sundry in public have a right to somehow access that
information and make use of it.‖284
Finally, if an individual has willingly parted with his/her personal data in exchange of social
and monetary benefits, then according to Chandrachud J., the State must utilise the
collected data solely for ―legitimate purposes of the state‖ and refrain from any unauthorised
use of such data for ―extraneous purposes‖.285
B. SURVEILLANCE
A close reading of the Puttaswamy judgement shall reveal that the Indian Supreme Court has
not brought down the curtain on State surveillance, but only limited the circumstances
warranting collection and analysis of personal data.
The Supreme Court, via the above proportionality test, laid down a framework within which
every State policy intruding into individual privacy must be ―narrowly tailored‖. The chances
of mass surveillance policies passing constitutional muster have been significantly
diminished, however, the possibility of State conducting targeted surveillance is still alive. In
any event, the State is under an obligation to ensure that every such policy provides for
sufficient safeguards and surveillance is used as a measure of last resort.
According to the judgement, Data collection, data analysis and data mining by the State may
pass muster in the following instances:
283
284
285
Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶ 181 of Chandrachud J.
112

i. National Security [Justices Chandrachud and Kaul];286

ii. Legitimate State interest, such as preventing and investigating criminal activities
[Justices Chandrachud and Kaul];287
iii. Social welfare schemes, “with the object of ensuring that resources are properly
deployed to legitimate beneficiaries” [Justice Chandrachud].288
Therefore, while the Indian Supreme Court has explicitly recognised Privacy as a
fundamental guarantee under the Constitution, it has also recognized the legitimate interests
of the State in infringing individual privacy in certain exceptional circumstances.
Part VI. STATE SURVEILLANCE VS. INDIVIDUAL‟S RIGHT TO PRIVACY: A

TOUR D'HORIZON
(a) American Jurisprudence

The US Supreme Court in Whalen v. Roe289 adjudicated on whether a State information
collection and data bank storage scheme violated individual privacy interests. Furthermore,
the Court considered a hypothetical right to informational privacy, but did not declare
informational privacy as a right.
The standard used by the US Supreme Court in Whalen for testing the constitutionality of the
legislative action is similar to the three-fold proportionality test laid down by the Indian
Supreme Court in Puttaswamy. The Court in Whalen observed that due to statutory
limitations, sufficient safeguards were present against the abuse of this data. However, to
differentiate Whalen from the Aadhaar in India, it has been observed that there is a lack of
criminal procedural safeguards to protect infringement of the information collected under
Aadhaar.
Many decades after the Whalen v. Roe decision, the court in NASA v. Nelson290 got an
opportunity to adjudicate on questions of law concerning right to informational privacy. The
Court was adjudicating on whether a governmental background check violated a right to
informational privacy by compelling employees to disclose past use of illegal drugs.
286
Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶¶ 13, 14, 72-3 of S.K. Kaul J.;
¶¶180-1 and Conclusion (5) of Chandrachud J.
287
Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶¶ 13, 14, 72-3 of S.K. Kaul J.;
¶¶180-1 and Conclusion (5) of Chandrachud J.
288
Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶¶180-1 and Conclusion (5) of
Chandrachud J.
289
Whalen v. Roe, 429 U.S. 589 (1977), ¶¶ 596-597, 600-603, 605-606.
290
NASA v. Nelson, 131 S. Ct. 746, 751 (2011), ¶ 753.
113

However, the Court in the case answered the question in negative, holding that no such right
was violated.
In United States v. Jones291, Sotomayor J. in her separate opinion had observed that right to
privacy can be violated via the use of GPS system, without even causing trespass. However,
the majority went on the lines of trespass as the justification for finding an unconstitutional
encroachment of private information rather than on the lines of informational privacy.
Therefore, with regard to the US Jurisprudence, it appears that right to informational privacy
is yet to be recognized expressly as being protected under the US Constitution. Although, the
parameters on which it could be tested is well grounded in the Whalen decision.
(b) UK Jurisprudence
The famous Calcutt Committee Report had defined ―privacy‖ as ―The right of the individual
to be protected against intrusion into his personal life or affairs, or those of his family, by
direct physical means or by publication.‖292 United Kingdom being a signatory to the
European Convention on Human Rights had ratified and incorporated the Convention in its
domestic legislation i.e. Human Rights Act 1998. Schedule I of the Act contains the
Convention which is to be interpreted with other provisions of the Act 293. Article 8 of the
Convention provides that ―Everyone has the right to respect for his private and family life,
his home and his correspondence‖. While this recognizes the existence of privacy, a direct
claim for violation of privacy under Article 8 of the Convention cannot be raised in UK.
However, various judicial decisions such as the House of Lords in Campbell294 decision and
the England and Wales Court of Appeal in Vidal-Hall v. Google295 decision, have held that a
tortious claim for misuse of private information can still be brought to the courts.
The UK Supreme Court in PJS v. News Group Newspapers296 had held that there are two
primary components which are covered by misuse of private information. The two
components are (i) The confidentiality component (protecting the secrecy of private
information); and (ii) The intrusion component (preventing intrusion into an individual's
291
United States v. Jones, 132 S. Ct. 945 (2012). (Sotomayor J.)
292
David Calcutt, Report of the Committee on Privacy and Related Matters, (1990) CMND 1102, at paras.
12.12 - 12.17.
293
The Human Rights Act 1998, Schedule I (United Kingdom).
294
Campbell v. MGN Ltd., [2004] UKHL 22 (2004).
295
Vidal-Hall v. Google, [2015] EWCA Civ 311 (2015).
296
PJS v. News Group Newspapers Ltd., [2016] UKSC 26 (2016).
114

privacy). The Court further held that an interim injunction can be used to prevent further
disclosure of private information297.
The Data Protection Act, 1998, serves as another legislation which can be used for protection
of private information in the UK. The England and Wales Court of Appeal in PJS v. News
Group Newspapers298 held that an individual could claim compensation if use of their private
or personal information contravenes the Data Protection Act provisions and this is not merely
limited to financial claims; it can cover compensation for distress.
While the UK did not utilize the proportionality test in reference to informational privacy or
any constitutional claims of violation of right to privacy, we can rely on the Privy Council
decision in Elloy de Freitas299 which laid down a three-step proportionality test for legislative
encroachments upon fundamental rights. The Privy Council held that the following
parameters must be considered while deciding the legality of a legislative action: (i) whether
the legislative objective is sufficiently important to justify limiting a fundamental right; (ii)
whether the measures designed to meet the legislative objective are rationally connected to it;
and (iii) whether the means used to impair the right or freedom are no more than is necessary
to accomplish the objective300. Furthermore, the House of Lords in Huang301 had added a
fourth requirement to those laid down in Elloy de Frietas, which stated that ―the need to
balance the interests of society with those of individuals and groups‖ must be considered.
The third parameter of the test laid down by UK courts is similar to the one accepted by the
Indian Supreme Court in Puttaswamy, which states that the means used by the State must be
proportional to the object and purpose sought to be achieved by the law under consideration.
However, if we were to attempt a comparative evaluation of the type of proportionality test
accepted by the Supreme Court of India as compared to the House of Lords in UK, it would
be much easier for UK Parliament to create surveillance programmes. This is due to the
fourth parameter stated in Huang302, which allows the interests of individuals and groups to
be balanced and potentially be superseded by the interests of the society.
297
PJS v. News Group Newspapers Ltd., [2016] UKSC 26 (2016).
298
Google Inc. v. Judith Vidal-Hall and Others, [2015] EWCA Civ 311 (England and Wales Court of Appeal).
299
Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, [1999] 1
AC 69.
300
Elloy de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing, [1999] 1
AC 69.
301
The House of Lords in Huang v. Secretary of State for the Home Department, [2007] UKHL 11 (2007).
302
The House of Lords in Huang v. Secretary of State for the Home Department, [2007] UKHL 11 (2007).
115

(c) Canadian Jurisprudence

The Supreme Court of Canada in R. v. Edwards Books303 had laid down three-fold standard
while evaluating legislations encroaching upon fundamental rights - (i) the limiting measures
must be carefully designed, or rationally connected, to the objective; (ii) the limiting
measures must impair the right as little as possible; and (iii) their effects must not so severely
trench on individual or group rights that the legislative objective, albeit important, is
nevertheless outweighed by the abridgment of rights.
The Canadian Supreme Court in Andrews304 relied on the R. v. Edwards Books decision to
espouse a proportionality test while analysing the rights and freedoms guaranteed by The
Constitution Act, 1982, of Canada. The Court held that it must consider (i) the nature of the
right, (ii) the extent of its infringement, and (iii) the degree to which the limitation furthers
the attainment of the legitimate goal reflected in the legislation. This is also famously known
as the Andrews standard.
In Canada, the Privacy Act provides the confines within which the State can encroach upon
the privacy of individuals via legislative action. The Privacy Act has been subjected to
several judicial interpretations, such as the interpretation of the term ―personal information‖,
as provided under Section 3 of the Privacy Act305, by the Supreme Court of Canada in
Canada (Information Commissioner)306. Therefore, in Canadian jurisprudence any
encroachment on the privacy of an individual will have to be understood in light of the
Andrews standard and the Canadian Privacy Act 1985, as privacy has not been guaranteed as
a fundamental right under the Canadian Constitution307.
(d) South African Jurisprudence

South Africa is one of the few countries which explicitly recognizes the right to privacy of
individuals in its Constitution. Section 14 of the South African Constitution308 protects the
right to privacy of individuals. It states that:
―Everyone has the right to privacy, which includes the right not to have:
(a) Their person or home searched;
303
R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (Supreme Court of Canada), p. 768.
304
Andrews v. Law Society of British Columbia, [1989] 1 SCR 143 (Supreme Court of Canada), ¶ 15.
305
Privacy Act §. 3, RSC 1985, c P-21 (Canada).
306
Canada (Information Commissioner) v. Canada (Commissioner of the Royal Canadian Mounted Police),
2003 SCC 8 (Supreme Court of Canada).
307
The Constitution Act, 1982 (Canada).
308
Constitution of the Republic of South Africa, 1996, §. 14 (South Africa).
116

(b) Their property searched;
(c) Their possessions seized; or
(d) The privacy of their communications infringed.‖
Therefore, the South African Constitution has explicitly set out the confines of a
constitutional right to privacy. The right to privacy in South Africa, much like other countries
is not absolute309. Justice Ackermann in Bernstein310 decision of the Constitutional Court of
South Africa held that ―the scope of a person's privacy extends „a fortiori‟ only to these
aspects in regard to which a legitimate expectation of privacy can be harboured.‖
The South African Supreme Court of Appeal in the S. v. Nkabinde decision311 held that the
monitoring of conversations between the accused and his legal representatives by the police
violated the right to privacy protected under the South African Constitution. This can be
justified under Section 14(d) of the South African Constitution. However, other private acts
which must be protected under informational privacy, could potentially be protected by
adopting an expansive reading of Clauses (a), (b) and (d) of Section 14.
CONCLUSION
In light of the aforesaid discussion, the following points can be agreed upon – (1) The current
discourse on Privacy lacks the necessary clarity; (2) There is a need to redefine the contours
of Privacy or a ‗right to privacy‘ in order to avoid confusion with other constitutional values
such as, liberty, autonomy, dignity etc.; (3) Whenever there is a question of State
Surveillance, there are multiple competing interests at play – State (Government) interest,
Public interest, Individual interest, and the Courts must adopt a fine adjudication strategy to
be able to balance all three in a manner that the equilibrium remains undisturbed; (4) The
boundaries of right to privacy must be made amply clear to the Public, so that they can
accordingly tweak their conduct.
For point (2), we have proposed a fresh definition of Privacy [Refer Part II], which we
believe might be able to plug the existing gaps in the existing framework. In conclusion, let
309
C.M. van der Bank, The Right To Privacy – South African and Comparative Perspectives, 1(6) European
Journal of Business and Social Sciences 77-86 (2012).
310
Bernstein and others v. Bester and Others, NNO 1996 (2) SA 751 (CC) (Constitutional Court of South
Africa), ¶ 75.
311
S v. Nkabinde, 1998 8 BCLR 996 (N) (South African Supreme Court of Appeal).
117

us end with the words of Justice Sanjay Kishan Kaul312 - ―Let the right of privacy, an
inherent right, be unequivocally a fundamental right embedded in part-III of the Constitution
of India, but subject to the restrictions specified, relatable to that part. This is the call of
today. The old order changeth yielding place to new‖
312
Justice K.S. Puttaswamy (Retd.) v. Union of India, 2017 (10) SCALE 1, ¶83 of S.K. Kaul J.
118

ENFORCEMENT OF UNCONSTITUTIONAL STATUTES

Authored by Vidhusha G V
Dr. Ambedkar Govt. Law College, The Tamilnadu Dr. Ambedkar Law University, Chennai.
krishvidhu91@gmail.com
ABSTRACT
The power of judicial review is akin to a veto, wherein the Court can ―strike down‖ or render
―void‖ a duly enacted statute. Due to the lack of communication between the organs of the
government and the absence of information, violation of court rulings has become the norm
of the day. Even after removal of impugned provisions by virtue of them being declared
unconstitutional by the Courts, they are still alive in the statute book. Independence of
judiciary implies that other organs of the government must not, in any way, hinder the
judiciary from awarding justice. Judiciary, being a prominent part of the democratic political
process in a country, is indeed accountable under the Constitution for preserving the
democratic traditions and the rights of people of the country. Any executive order or
legislative enactment of the state interfering with the adjudicatory process would be ultra
vires of the Constitution. Such an act would be a manifestation of a desire on the part of the
state to be a judge in its own cause and to defy the decisions of judicial authority. It would
sound the death knell of the rule of law by making it meaningless as it would be open to the
Executive to defy the judgments and get away with it.
“Judicial review is enunciated by the theory that the Constitution, which is the fundamental
law of the land, is the will of the people, while a statute is only the creation of the elected
representatives of the people, when, therefore, the will of the legislature as declared in the
statute, stands in opposition to that of the people as declared in the constitution- the will of
the people must prevail”. It is emphatically the province and duty of the Judiciary to say what
the law is.
With this aim and background, the researcher through this research paper aims to analyze the
consequences of an unconstitutional statute and its continued employment by the authorities
in its post unconstitutionality stage.
119

INTRODUCTION
A statute void for unconstitutionality is dead and cannot be revitalized by a subsequent

amendment of the constitution removing the constitutional objection but must be re-enacted.
- Prof. Cooley
An unconstitutional statute under every circumstance lacks the force of law. An

unconstitutional statute is fatally smitten at its birth and the decision of unconstitutionality
was a mere judicial declaration of a pre-existing fact313.To maintain the spirit of democracy,
it is essential to have an independent and impartial body like judiciary to determine the
constitutionality of any legislation rather by the matter of legislation itself. Judicial review, in
its broadest context, is the self-assured right of the court to pass upon the constitutionality of
the legislative act. Justice Goldberg, "judicial review is not a usurped power but a part of
the grand design to ensure the supremacy of the constitution".314 The question is not of
parliamentary supremacy or judicial supremacy, rather the issue is about striking the balance
between the two to have a democratic setup where the public interests are not violated. The
argument that the statute is discriminatory and unconstitutional should have been met with
counter arguments about why such a statue is not discriminatory and unconstitutional.
Democracy is said to be enhanced by judicial review because constituent power makes rules
on the basis of the special majority. Certainly, all those who have framed written constitution
contemplate them as forming the fundamental and paramount law of the nation, and,
consequently, the theory of every such government must be, that an act of the legislature,
repugnant to the constitution is void.
In the words of Marshall315, ‗any law contrary to the constitution is void such that the judge
merely finds and declares such nullity‘. Kelsen while contradicting the view of Marshall,
establishes that it is not void but can only be established as void by the courts. A norm is
valid if and because it was created in a certain way, which in turn is determined by another
norm: thus, the latter norm constitutes the immediate basis of the validity of the former. To
express the relationship in question, we can use the special image of a hierarchy, the
relationship of superiority to subordination: the norm that governs the act of creation is the
superior norm.
313
Ex parte Bockhorn, (1911) 62 Tex. Cr. 651.
314
Rostkerv v. Goldberg, [453 U.S 57 1981].
315
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
120

Hence, the constitution is supreme to the law because it governs the drafting of laws. It is
supreme, simply, because there is no other positive rule of law from which it could find the
basis for its own validity. The concept of supremacy is not indispensable for justifying
judicial review because the superior nature of the constitution will suffice.
RESEARCH METHODOLOGY
The methodology employed in this study is Doctrinaire and includes the review of literature
available from law journals, case law references, periodicals, library researches, books, and
internet.
RESEARCH QUESTIONS
 What will be the consequences of an Act when declared unconstitutional by the

judiciary?
 Can an unconstitutional law be enforced?
 Can the parliament re-enact a law already held unconstitutional by the Supreme Court?
 Can the Supreme Court order the parliament to frame a law for creating enforcement
machinery?
 Whether the power of judicial review includes an absolute power to declare a statute as
unconstitutional?
DEFINITION AND PURPOSE OF JUDICIAL REVIEW
Judicial review, as defined by Smith and Zurcher, ―The examination or review by the
courts; in cases actually before them, of legislative statutes and executive or administrative
acts to determine whether or not they are prohibited by a written constitution or are in excess
of powers granted by it and if so, to declare them void and of no effect‖316.
Edward S. Corwin, ―Judicial review is the power and duty of the courts to disallow all
legislative or executive acts of either the central or the state governments which in the court's
opinion transgresses the constitution‖317. In Hamdard Dawakhana v. Union of India318, the
316
Edward Conard Smith & Arnold John Zurcher, Dictionary of American Politics 212 (Barnes & Noble, New
York, 1959).
317
Edward S. Corwin's Constitution And What It Means Today (1978 ed.).
318
1960 SCR (2) 671.
121

Supreme Court for the first time struck down as unconstitutional an Act made by union
parliament on the ground of excessive delegation.
In the words of Madison, ―A Constitution can be preserved in practice in no other way than
through the medium of the courts of justice‖319. Montesquieu, in his Separation of Powers
theory, greatly emphasizes restriction on uncontrollable authority in any one organ of the
government. Thus, the doctrine of judicial review is aimed at establishing a limited
government to promote constitutionalism and to maintain rule of law.
In Deoman Upadhyay v. State320, the learned judge observed that it is not open to the
legislature to contravene and flout the provisions by taking shelter behind the plea that the
enforcement was accidental and not deliberate.
Charles Grove Haines and Foster H Sherwood321 explain by expressing the views on the
constitutionality of legislation, that the court gives inspiration to the legislature and arouses
alertness and caution to rectify mistakes it creates.
Alexander Hamilton in his Federalist No.78 held, ―The interpretation of the law is the
proper and peculiar province of the courts. A constitution is in fact and must be regarded by
the judges as a fundamental law. It, therefore, belongs to them to ascertain its meaning as
well as the meaning of any particular act proceeding from the legislative body. If these
should happen to be an irreconcilable variance between the two that which has the superior
obligation and validity ought, of course, to be preferred to the statute the intention of the
people to the intention of their agents‖322. Judicial review propounded by Chief Justice
Marshall in Marbury v. Madison323 by adopting the view of Alexander Hamilton in the
Federalist explains that the legislature has no authority to make laws repugnant to the
constitution, and in the case of constitutional violation, the court has absolute and inherent
right to declare the legislative act void. There are many instances where in which the Indian
Parliament had overturned the verdicts of Supreme Court by making amendments in the
impugned legislations. For instance in 2018, Indian Parliament introduced section 18A to
overturn the safeguards introduced by the Supreme Court in Kashinath Mahajan case324 and
had undone all necessary safeguards established by the Supreme Court to prevent the people
319
Marbury v. Maddison, 5 U.S. (1 Cranch) 137.
320
AIR 1960 All 1.
321
Richard Pacelle, The Role Of The Supreme Court In American Politics: The Least Dangerous Branch?,
Perseus (October 18, 2001).
322
The Judiciary Department, Federalist No. 78, New York, May 28, 1788.
323
Id.
324
Dr. Subash Kashinath Mahajan v. State of Maharashtra, dtd. 20th March 2018 [Cr. Appeal No. 416 of 2018].
122

from abusing the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989.
Thus in order to satisfy the populist response Parliament had circumvented the court‘s verdict
which is not a healthy constitutional procedure since it tries to disregard the purpose of
judicial review.
The Indian Supreme Court enjoys enforcement powers implicitly provided under Article 142
of the Indian constitution. The notion of complete justice mentioned under Article 142 can be
attained only by creating a piece of strong enforcement machinery to execute the rulings of
the court. But, the constitutional makers have left the power of enforcing the decrees with the
parliament. A law enacted by the parliament is required to enforce decrees and orders of the
Supreme Court. Till now, no such legislation was made in this regard.
But the presidential order was issued in 1954 titled, „THE SUPREME COURT DECREES
AND ORDERED ENFORCEMENT ORDER, 1954‟325 provides for two circumstances
 Where any decree or order was passed or made in exercise of the Supreme Court's
appellate jurisdiction, it shall be enforceable in accordance with the provisions of law
relating to the enforcement of decrees or orders of the court or tribunal from which the
appeal to the Supreme Court was preferred.
 In any other case, the enforcement will be in accordance with the provisions of law
relating to the decrees or orders of such court, tribunal or other authority as the Supreme
Court may specify in its decree or order or in a subsequent order made by it on the
application of any party to the proceeding.
After analyzing the above order, it is clear that the ultimate authority and power to enforce
the orders and decrees of the Supreme Court has become more complicated. Normally, the
Supreme Court resorted to contempt proceedings for enforcing its judgments. To sustain
democracy and galvanize rule of law, it is pertinent to ensure proper constitutional safeguards
to provide enforcement powers for the judiciary. Enforcement of judicial decisions still
requires the mercy of parliament or executive to keep it alive and functioning. Section 66A of
the IT Act 2000 was held unconstitutional by the Supreme Court in the case of Shreya
Singhal v. UOI326. But the police authorities in Muzaffarnagar, U.P arrested and detained 18-
year-old Zakir Ali Tyagi under Section 66A on October 2017 for posting some comments on
325
C.O. 47, Dated 14th January, 1954.
326
(2013) 12 S.C.C. 73.
123

Facebook327. Media outlets have reported some other cases where constitutionally invalid
Section 66A has been invoked by the police which reinforce the importance of creating a
piece of enforcement machinery for judicial orders. Umpteen numbers of laws were held
unconstitutional and invalid by the judiciary, but it stills holds relevance and prominence in
various departments of the government. Lack of communication and absence of review
system for updating the constitutional status of the legislation makes it impossible to repeal
the impugned statutes from the law books. Regarding the fundamental rights, judiciary has
been awarded the role of a sentinel on the qui vive under Article 13 of the Indian
Constitution. While the court gives immense weight to the legislative judgment, it still cannot
deviate from its own duties to determine the constitutionality of the impugned statute. Every
law has to pass through the test of constitutionality which is indeed a formal test of
rationality. Power of judicial review was explained by the nine-judge bench in the case of
Supreme Court Advocates on Record Association and Others v. Union of India 328 in the
following way:
GROUNDS OF UNCONSTITUTIONALITY – a law generally can be held unconstitutional

on the following grounds:
- Contravention of any fundamental right, specified in Part III of the constitution.

- Legislating on a subject which is not assigned to the relevant legislature by the
distribution of powers made by the 7th Schedule read with relevant powers guaranteed by
the Constitution. It follows from the premise that a law made in derogation or in excess
of that power would be void ab initio, wholly or to the extent of the contravention, as the
case may be.
- Contravention of any of the mandatory provisions of the constitution which imposes
limitations upon the powers of the legislature329. The test in determining the
constitutionality for determining the want of legislative power is either about positively
affirming to legislate in the respective field to make laws or negatively prohibiting the
authority form infringing the constitution
- In the case of a law legislated by any state legislature, it will be invalid if it seeks to
operate beyond the boundaries of the State.330
327
40 Days‘ Jail for FB Posts: Zakir Tyagi on ―Dictatorial‖ UP Govt, The Quint (June 18, 2019, 01:23 PM),
https://www.thequint.com/videos/news-videos/zakir-ali-tyagi-jailed-for-facebook-post-up-cm-yogi-adityanath.
328
W. P. (Civil) No. 13 of 2015.
329
AIR 1961 SC 232.
330
1957 SCR 874.
124

- That the legislature concerned with the impugned legislation has either abdicated its
essential legislative function as assigned to it by the constitution or has made an
excessive delegation of that power to some other organ of the state331.
American constitution, while establishing the legal system, asserted that there needs to be a
law superior to the legislature itself and that it was the restraints of this paramount written
law that could only save them from the faces of absolutism and autocracy, which are
ingrained in human nature itself.332 Thus, relying on the above constitutional norm, the
principle of judicial review was embedded in the Indian constitution. It is the judiciary that
safeguards the interest of citizens by not allowing the other organs to go beyond their
assigned role in the constitution. Thus, the Indian judiciary is the final authority in
interpreting legal issues and constitutional arrangements. The nature of democracy and the
development of the state depend upon how the legal system conducts itself to sustain the
overall socio-economic and political environment. Judiciary, having the power of judicial
review, connotes that every piece of legislation passed by the parliament is subject to judicial
scrutiny by the supreme court of India to safeguard constitutional supremacy. The Supreme
Court has concurrent jurisdiction with the high court to issue directions, orders, and writs for
enforcement of fundamental rights and has the power to declare a law passed by the
legislature as null and void if it encroaches upon the basic features of the constitution.
PRESENCE OF UNCONSTITUTIONAL STATUTES IN THE STATUTE BOOK
Every post-constitutional law infringing a fundamental right and thereby, falling within the
scope of article 13(2) will not make the statute to be unconstitutional from the statute book.
Any declaration of unconstitutionality of a statute by the judiciary, made subsequent to the
enactment of such statute cannot completely remove such statute from the statute book of the
legislative body. As Das G.I., observes in Deepchand v. State of U.P., ―A post constitution
law may infringe either a fundamental right conferred on citizens only or a Fundamental
Right conferred on any person, citizen or noncitizen. In the first case, the law will not stand
in the way of the exercise by the citizens of that FR and therefore will not have any operation
on the rights of citizens, but it will be quite effective as regards noncitizens. In second case
law will be on the statute book as a valid law binding on non-citizens and if any discrepancy
331
1960 AIR 554.
332
Rottschaefer in his work on CONSTITUTIONAL LAW, Pg. no. 34.
125

is removed by any constitutional amendment then the law will immediately be applicable
even to the citizens without being re-enacted‖333.
When legislation intends to violate the basic features of the constitution, it calls on the
judicial power to resist legislative or executive action from offending the grund norm of the
nation. In Keshava Madhava Menon v. State of Bombay, Mahajan J. held that ―the
provisions of the constitution affect legislative competence and that any law made after 26th
January 1950, which was repugnant to such provisions was null and void from its very birth,
either wholly or to the extent of the contravention, as the case may be, that anything was
done under it, whether closed, completed or inchoate will be wholly illegal, that such law
must be deemed obliterated from the statute book and that relief in one shape or other has to
be given to the person affected by such an unconstitutional law by resort to the exercise of
powers given to the supreme court by the constitution‖334.
AFTERMATH OF UNCONSTITUTIONALITY OF A STATUTE
To understand the legal nature of an unconstitutional statute, it is important to analyze the

infringed provisions of the constitution. The unconstitutional status of a law can be waived by
restoring its constitutionality without re-enactment. But if it is proved that a statute was
passed by the legislature which had no power to pass the legislation, then such statute cannot
acquire validity.
In Chintaman Rao v. State of M.P., Mahajan J. held ―When the provisions of the statute are
of wide amplitude when the language employed is wide enough to cover restrictions both
within and without the limits of constitutionally permissible legislative action, affecting the
rights of the persons for whose benefit the action was legislated. So long as the possibility of
it being applied for the purposes not sanctioned by the constitution cannot be ruled out and
be held unconstitutional and void‖335.
In Behram Khurshed Pesikaka v. The State of Bombay336, the learned judge observed that
―We are not able to endorse the opinion that a declaration of unconstitutionality brought
about by lack of legislative power stands on a different footing from a declaration of
unconstitutionality brought about by reason of abridgment of fundamental rights. We think
333
1959 AIR 648.
334
1951 SCR 228.
335
1950 SCR 759.
336
AIR 1955 SC 123.
126

that it is not a correct proposition, that the constitutional provisions in Part III of our
Constitution merely operate as a check on the exercise of legislative powers. It is axiomatic
that when the law-making power of a State is restricted by the written fundamental law, then,
any law enacted is opposed to the fundamental law is in excess of the legislative authority
and is thus a nullity. Both these declarations of unconstitutionality go to the root of the power
itself and there is no real distinction between them. They represent but two aspects of want of
legislative power. Articles 245 and 246 of the Constitution stand curtailed by the fundamental
rights chapter of the Constitution. A mere reference to the provisions of Article 13(2) and
Articles 245 and 246 is sufficient to indicate that there is no competence in Parliament or a
State Legislature to make a law which comes into clash with Part III of the Constitution after
the coming into force of the-Constitution. The authority, thus, conferred by Articles 245 and
246 to make laws subject wise in the different Legislatures is qualified by the declaration
made in Article 13(2). That power can only be exercised subject to the prohibition contained
in Article 13(2).‖
In Namit Sharma v. Union of India337, the learned judge while referring American
jurisprudence held that a statute declared as unconstitutional can neither create rights nor
destroy existing ones by making amendments because it is an empty legislative declaration
without force or vitality. Normally, an unconstitutional statute is to be considered as though it
had never been enacted by the legislature. In Norton v. Shelby County338, Justice Field
observed, ―an unconstitutional act is not a law; it confers no rights; it imposes no duties; it
affords no protection; it creates no office; it is in legal contemplation as inoperative as
though it had never been passed‖339. Courts will regard the statute as unconstitutional if its
unconstitutionality is demonstrated beyond a reasonable doubt.
Cooley explains the nature of the consequences of a void statute in the following words,
―when a statute is adjudged to be unconstitutional, it is as if it had never been and what is
true of an act void in toto is true, also, as to any part of an act which is found to be
unconstitutional and which consequently is to be regarded as having never, at any time.
Rights cannot be built up under it; contracts which depend upon it for their consideration are
337
No. 2309 of 2012.
338
118 U.S. 425 (1886).
339
Id.
127

void. It constitutes a protection to no one who has acted under it and no one can be punished
for having refused obedience to it before the decision was made‖340.
Normally, if any state authority fails to follow the order of judiciary, then proper action can
be taken against them because the power to punish for contempt is an inherent power of the
higher forums of Indian judiciary. But if any agency of the central government refuses to
follow the Supreme Court order, it would certainly lead to constitutional crisis. The absence
of a proper enforcement machinery to proceed with the contempt proceedings would lead to a
standoff between executive and judiciary. The test of constitutionality is the means by which
the judiciary can check whether the impugned legislation or order is proportional to the object
and needs sought to be fulfilled by the law. Proportionality is an essential facet of the
guarantee against arbitrary state action because it ensures that the nature and quality of the
encroachment on the right are not disproportionate to the purpose of the law. In lower judicial
forums, essential powers of enforcement were vested with them under CPC. In Century Flour
Mills v. Suppiah341, it was held that if something has been done in disobedience, then it is the
duty of the court as a matter of judicial policy to undo the wrong done in disobedience of
court's order. In Bhagat Singh Dugga v. Devan Jagbir342, the learned judge of Calcutta HC
observed that ―law cannot make express provisions against all inconveniences and that the
court had, therefore, in many cases where the circumstances warranted it, and the necessities
of the case required it, acted upon the assumption of the possession of an inherent power to
act ex debito justiae and to do that real and substantial justice for the administration of
which alone it exists‖.
In the words of Rottschaefer on unconstitutional statutes343 ―the legal status of a legislative

provision, in so far as its application involves violation of constitutional provisions, must
however be determined in the light of the theory on which courts ignore it as law in the
decision of cases in which its application produces unconstitutional results. That theory
implies that the legislative provisions never had legal force as applied to cases within that
clause.‖
340
Cooley's Constitutional Limitations 114, 750, 832 (8th ed., Boston: Little, Brown, And Co., 1927).
341
AIR 1975 Mad 270.
342
1962 SCR Supl. (1) 450.
343
In Behram Kurshed Pesikaka v. State of Bombay, Supreme Court of India quoted Rottschaefer in his work
on Constitutional Law.
128

In Saghir Ahmed v. State of U.P.344, the learned judges were considering a question as to
whether a post-constitution enactment, which infringed the fundamental rights guaranteed
under the part III on the date when it was passed, can be saved by subsequent amendment of
the constitution, particularly with reference to fundamental rights. The Supreme Court was of
the view that the validity of the act will have to be judged by considering as to whether it
violates the Fundamental Rights guaranteed to the party therein under constitution on the date
when the act was passed.
In the words of Justice Mukherjee, the amendment of the constitution, which came later,
cannot be invoked to validate earlier legislation which must be regarded as unconstitutional
when it was passed. Prof. Cooley, in his constitutional limitations, explains that a statute void
for unconstitutionality is dead and cannot be revitalized by a subsequent amendment of the
constitution removing the constitutional objection but must be re-enacted.
The Supreme Court in Chembakave Vadakkekkara Lakshmi v. Nelliseri Gramam

Narayanaswami345 held that the Supreme Court hereby approves the statement of Prof.
Cooley that the statute which is void for unconstitutionality is a dead statute. There is no
distinction between the unconstitutionality declaration, either for lack of legislative power or
for abridging fundamental rights. The above classification merely represents the dual aspects
of want of legislative paper.
There is no scope for introducing terms like ‗relatively void' coined by American judges in
construing a constitutional interpretation because such is not applicable in the Indian
scenario. Once a statute is declared void under article 13(1) or 13(2), then such declaration
has the force of law and the statute so declared void is no longer law and persons whose
Fundamental Rights are thus infringed and the accused need not prove that the law has been
already held unconstitutional.
In Behram Khurshad Pesikaka v. State of Bombay346, the following propositions were made-
 When the law-making power of a state is restricted by written fundamental law(art.13),

then any law opposed to the fundamental law is in excess of legislative authority and is
thus a nullity.
 The unconstitutional part of the statute declared void should be notionally taken to be
obliterated from the statute for all intents and purposes.
344
1955 SCR 707.
345
AIR 1963 Ker 330.
346
Id.
129

 On the construction of Art. 13(2) the law made in contravention of that clause is a
nullity from its inception.
American jurisprudential law holds that a statute repugnant to the Constitution would be void
from its birth and the same was applied in many cases while determining the constitutional
status of post-constitution legislation. In Bhikaji Narain Dakras and Others v. State of
M.P.347, Das C.J. held that post-constitution laws which are inconsistent with the provisions
of the constitution are laws which never came to life but were stillborn as it were. Execution
of judgments would be a fallacy in the absence of any enforcement machinery when the case
is about determining the constitutionality of a statute.
In lieu of Article 142, every judgment of the Supreme Court related to the constitutional
interpretation will attain finality because of its binding nature throughout the Indian Territory,
which is indeed guaranteed under the aforementioned provision. Power under Art.142 cannot
be used even to nullify the court's previous judgment because such would amount to
perpetuating illegality. In the words of Justice Ahmadi, ―If the executive is honest in working
the constitution then the executive is bound to obey the legislature without any kind of
compulsion as laid down in the constitution and to act in accordance with the judicial
decisions of the Supreme Court is an implicit obligation in the Constitution itself‖348. The rise
of populism challenges the power of authorities from enforcing the law. Thus, it warrants the
judiciary to intervene to provide a remedy when required. Hence, to overcome the rift
between populism and sound regulatory policy, it is important to create politically insulated
regulatory agencies. Normally, many laws which were opposed in populist sphere would be
crucial in proper development because judiciary aims at promoting rule of law rather satiating
the political vote bank. In spite of many discrepancies, the organs of the judiciary are not
bending to the sustained campaign against its enforcement authorities.
Recently, many contentious regulations were addressed by the judiciary including mining and
construction regulations in Delhi and Goa. This measure reciprocates the U.S. Federal
Judiciary's role in enforcing school desegregation. But these activities are often considered as
an example of an activist approach by the judiciary. Stepping out from its traditional role of
interpreting the law and intervening in regulatory process cannot be considered as judicial
activism; rather the judiciary is trying to fill up the vacuum in the law since the court cannot
condone any flagrant violations by the organs of the government.
347
1955 SCR (2) 589.
348
State of Madras v. V.G. Row, 1952 AIR 196.
130

In the words of Sabharwal Y.K CJI, ‗From an unconstitutional statute, no rights

whatsoever could have flown and cannot operate under any circumstances. The judiciary can
scrutinize the validity of legislative action where transgression of the fundamental rights is
concerned‘. Any legislation intending to create a conflict and of rudimentary in nature needs
to be scrapped under the aegis of judicial review. The duty of the judiciary is to simply give
effect to the legislative policy of a statute in the light of the policy of the constitution349.
Courts cannot create rights where none exists nor can they make orders which are incapable
of enforcement if such created rights violated legal principles of separation of powers.
PRESUMPTION OF CONSTITUTIONALITY
Normally in India, the Supreme Court will not examine the constitutionality of law except
when there is a litigable dispute between the parties. The court even adjudges on the
constitutionality of a statute when such is sought under the advisory opinion provided under
Article 143 of the Constitution. Political aspirations were contemplated by enforcing the
statutes which are conditioned as unconstitutional by the judiciary. The theory of separation
of powers created the doctrine of political question by which it clarifies that the three organs
of the government are independent of each other. Any question exclusively in the domain of
executive or parliament cannot be entertained by the judiciary unless such need to be
interpreted in the light of the constitution. The doctrine of non-justiciability states that the
issues of political nature could be resolved only by the political forums since they are not
suitable for judicial scrutiny. These allegations started creeping in due to the absence of any
judicially recognizable standard in assessing the claim of unconstitutionality350.
In Medical Council of India v. State of Kerala351, the court held that the ordinance which
aimed at circumventing the order of the court by nullifying the effect of the judgment of the
court, the impugned ordinance by the executive is encroaching upon the power of judicial
review of the Supreme Court. Any ordinance aimed at nullifying the order of the court under
the pretext of removing the defects in the existing law is said to be unconstitutional.
349
Dr. A. S. Anand, Judicial Review-Its Content & Its Reach, AIR 2000, J&A p.161.
350
Alice Jacob & Rajeev Dhawan, The Dissolution Case: Policies as the base of The Supreme Court, (1978)
N.M. Tripathi, p. 125.
351
Writ Petition C. NO.231 OF 2018.
131

In Janapada Sabha Chinwara v. The Central Provinces Syndicate Ltd.,352 the constitution
bench of the Supreme Court held that it is not open to frame any law thereby rendering any
judgment to become ineffective. It is open to the legislature with certain limits to amend the
provisions of an act retrospectively and to declare what the law shall be deemed to have been
but it is not open to the legislature to say that the interpretation of the law shall be otherwise
than as declared by the court. The constitution bench in Cauvery water disputes tribunal
case353 observed that the principle which emerges from these authorities is that generally, the
legislature can change the law, which may affect a class of persons and events at large. But it
cannot, however, set aside an individual decision inter parties thereby affecting their rights
and liabilities alone. Such an act, on the part of the legislature, amounts to exercising the
power judicial review, thereby functioning as an appellate court.
The doctrine of separation of powers even applies to the final judgments of the courts. Thus,
the legislature cannot declare any decision of a court of law to be void or of no effect. It can,
however, pass an amending act to remedy the defects pointed out by a court of law. In other
words, the court's decision must always have binding nature unless the conditions on which it
is based are so fundamentally altered that the decision could not have been given in the
altered circumstances. Because such an attempt cannot be said to be a permissible legislative
exercise because the function of the legislature consists in making law and not in declaring
what the law shall be.
If the legislature were at liberty to annul the judgments of the court, the ghost bills of
attainder will revisit thereby enabling the legislatures to pass legislative judgments on matters
which are of bilateral in nature. In U.S jurisprudence, provision was made clear to outlaw the
bills of attainder. It is essential that every court's decision need to have binding nature so as to
prevent the authorities from fundamentally changing the circumstances, thereby negating the
purpose for which it was made.
In the State of H.P. v. Narain Singh354, the Court held that when there is a competent
legislative provision which retrospectively removes the substratum of the foundation of a
judgment, then such exercise is a valid legislative exercise, provided it does not transgress
any other constitutional limitations. This does not amount to statutory overruling on the part
352
1970 SCR (3) 745.
353
In the Matter of Cauvery Water Disputes Tribunal, [1991] INSC 303 (22 November 1991) 1992 AIR 522.
354
Civil Appeal No. 1678 OF 2002.
132

of the legislature. Thus in this manner, the earlier decision of the court becomes non-existent
and unenforceable for interpretation of the new legislation.
A judicial pronouncement, either declaratory or conferring rights on the citizens, cannot be

set at naught by executive or legislature because such would amount to an encroachment on
judicial powers.
POSITION IN U.K
The British view is that in the interpretation of a completely self- governing constitution,
founded on a written instrument, if the text is explicit the test is conclusive alike in what it
directs and in what it forbids355. The same view more or less was taken by the judicial
committee in Queen v. Burah356 wherein it was established that the courts of justice, when a
question arises regarding whether the prescribed limits have been exceeded, must of necessity
determine that question; and the only way in which they can properly do so is by looking at
the terms of the instrument by which, affirmatively, the legislative powers were created and
by which negatively they are restricted. These judgments have heavily influenced the
provisions of the constitution. It is well settled that a law, which is beyond the power of the
enacting body, is not a law at all and such a law cannot acquire validity by the mere passage
of time. Thus, the presence of unconstitutional statutes in the statute book does not prove its
validity. To be in concurrence with the constitution is the ultimate test to prove the validity of
the legislation.
POSITION IN U.S.A.
Judicial supremacy under the U.S. Constitution is an excelling example to understand the
healthy relations between the executive and Judiciary. Rulings of judicial forums are properly
executed by the executive without any assistance from separate enforcement machinery. As
per the U.S. Constitution, the ultimate touchstone of constitutionality is the Constitution itself
and not what the judiciary explains. In, Mc Leynolds J.357, observed: an after-acquired power
cannot ex proprio vigore validate a statute, void when enacted. This was considered
important because legislation at that time was protected in the form of amendments. Stressing
355
Attorney General of Ontario v. Attorney General for Canada, [1937] A.C. 355.
356
(1878) 5 I.A. 178.
357
New Berry v. The U.S., 256 U.S. 232 (1921).
133

that mere existence of unconstitutional statute in the textbooks of the legislature cannot award
any validity.
There are instances in which the judiciary concludes that the status of unconstitutionality of
statute does not amount to repealing the statute but registering the judicial reservations
against the statute in that particular case. Thus in Shepherd v. Wheeling, the Court of West
Virginia358 observed: The court does not annul or repeal the statute if it finds it is a conflict
with the constitution, it simply refuses to recognize it and determines the right of the parties
just as if such statute had no application. The court may give its reasons for ignoring or
disregarding the statute, but the decision affects the parties only, and there is no judgment
against the statute. The opinions or reasons of the court may operate as a precedent for the
determination of other similar cases, but it does not strike the statute from the statute book; it
does not repeal the statute.
CONCLUSION
An action which is ultra vires is without jurisdiction, null and void and of no legal effect
whatsoever. It has no leg to stand on359. There is no question of estoppels against an ultra
vires act. A plea of ultra vires cannot be defeated by a rule of estoppel as it would entirely
destroy the whole doctrine of ultra vires but it is possible only when the donee of a statutory
power extend his power by creating estoppels360.No question of approbation or reprobation.
No question of acquiescence or waiver can be raised against an ultra vires act.
In Lohia Machines Ltd. v. Union of India361, the Supreme Court held that if a rule made by a
rulemaking authority is outside the scope of its power, it is void and it is not at all relevant
that its validity has been questioned for a long period of time. There are instances which
exemplify the wanton abuse by the authorities in applying unconstitutional laws. The primary
reason for the poor enforcement of judicial declarations of unconstitutionality is signal
failures between different branches of government. Normally, post-decision court cannot
maintain the follow-up and needs assistance from the legislature and executive to enforce
decisions.
358
84 S.E.2d 140 (1954).
359
Judicial Review and the Constitution (University Of Cambridge. Centre For Public Law, Hart Publishing
2000).
360
AIR 1985 SC 421.
361
1985 AIR 421.
134

Alexander Hamilton considers ‗Judiciary as the Least Dangerous Branch‘. Publicized acts
of defiance and non-compliance of courts order undermine the work of courts.
In the words of Mitchell, in his work Writ of Erasure, fallacy states that the fallacy that
equates judicial review with a veto-like power to ―strike down‖ legislation or delay its
effective start date. The judicially disapproved statute continues to exist as a law until it is
repealed by the legislature that enacted it, even as it goes unenforced by the judiciary or the
executive. The power of judicial review is all too often regarded as something akin to an
executive veto. When a court declares a statute unconstitutional or enjoins its enforcement,
the disapproved law is described as having been ―struck down‖ or rendered ―void‖—as if the
judiciary holds a veto-like power to cancel or revoke a duly enacted statute. And the political
branches carry on as though the court‘s decision has erased the statute from the law books.
Judicial review is not a power to suspend or ―strike down‖ legislation; it is a judicially
imposed non-enforcement policy that lasts only as long as the courts adhere to the
constitutional objections that persuaded them to thwart the statute‘s enforcement. The essence
of the judicial duty is a fallacy because it equates judicial review with a veto-like power
which it cannot be established in a proper way. The impossibility of violating the constitution
is not a test but the very definition of its superiority. The famous approach of Louis Fauroeu
in his Switchman Theory while analyzing French laws holds that the constitutional court does
not really issue a decision on the merits of legislation, but confines itself to pointing out that
the measures under consideration must be enacted in constitutional rather than legislative
form. Thus, enforcing an unconstitutional statute amounts to the violation of the constitution.
135

BALANCING CONSTITUTIONAL MORALITY AND RELIGIOUS

FAITH: THE DISPUTE OVER RIGHTS AROUND SABARIMALA ISSUE
Authored by Pragya Gupta & Anunay Shrivastava
Students of SVKM‘S NMIMS Kirit P. Mehta School of Law, Mumbai.
pragyagupta355@gmail.com; anunayshrivastava19@gmail.com
ABSTRACT
The relation of humans with religious faiths, beliefs and customs has always been a part of
evolving human endeavours. Religious beliefs form an essential part of our society, and to
ensure that such beliefs are in consonance with basic and equal human rights, there is the
Constitution which checks and balances the religious practices and human rights. The
present article is an analysis of the recent controversy surrounding Sabarimala temple‟s
practice of discriminating women age group of 10 to 50 years and gender equality in
contemporary times. The temple holds a distinct identity of having a celibate idol of Lord
Ayyappa, and its devotees who consider restricting the entry of women on the notion that it is
against the wishes of Lord Ayyappa and women are not capable of following the rituals
because of their physiological identities, customs which constitutes their essential practices.
In lieu of this ban, the matter was placed before the five-judge constitutional bench in
Supreme Court, where the court analysed the basis of such a ban on principles of
constitutional morality and harmonious interpretation of Part III of the constitution. The
majority judgement placed women‟s rights over exclusionary and discriminatory practices of
the temple‟s governing board in name of essential religious practices. The only woman judge
Justice Indu Malhotra gave a dissenting opinion and held “that notions of rationality should
not be applied to matters of deep religious faith”.
The article also analyses the consequences which have taken place after the historical
judgement was passed by the Supreme Court. It tries to understand the reasons for
destabilisation in the society after such reformative judgements are passed and how there is
incitement of sentiments especially of the devotees by political parties to gain their political
ambitions through such stages. It is surprising to have violent agitations happening around
this issue despite Kerala being the most literate society in the country. Whatever the outcome
is intended after a fresh filing of review petition before the Supreme Court, the same should
happen with a participative and healthy dialogue amongst all the possible stakeholders.
136

Keywords: Sabarimala Temple, Constitutional Morality, Societal challenges, Gender

equality.
INTRODUCTION
All religions are manifestation of different paths to reach the Universal One. Religion is
basically a way of life to realise one‟s identity with the Divinity and Spirituality.
- Dipak Misra, Former Chief Justice of Supreme Court of India
Religion in India is recognised by a diversity of religious beliefs and practices followed by

the people of the country. India is a secular state with no state religion, it is only in India
people professes all the major religions of the world. The present article analyses the case of
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors.362 (Hereinafter
―IYLA‖), and how the pillars of the Indian Constitution are upholding the balance between
the concept of constitutional morality and the religious faith in the process of dispensing
justice.
The debate with regards to restricting the entry of women of age 10 to 50 years in the 800-
year-old shrine as its presiding deity, Lord Ayyappa is considered to be a celibate, has
involved the Central government, successive state governments, priestly class, socio-religious
organisations and the devotees of all the ages and genders around the country. India‘s
religious diversity not being homogenous, the parties to the debate do not constitute one class
and hold diverse viewpoints on the issue. These differences between the viewpoints have
widened the political involvement of parties in power and ruined the concept of free
propagation and practice of religion as a whole.
Since 1982s, the entry of women has been seen as a violation of ―traditional practice‖
followed in the temple.363 In the case of S. Mahendran v. The Secretary, Travancore364
(Hereinafter ―Mahendran‖), the High Court of Kerala banned the women‘s entry in the
temple. The Supreme Court in September 2018, overturned this 1991 decision and ruled in
the 4:1 ratio that preventing menstruating women from visiting the shrine violated the
362
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC OnLine Ker 5802
(India).
363
Judith G. Martin, Why Women Need a Feminist Spirituality, 21(1/2) Women‘s Studies Quarterly Jstor, 106,
(1998).
364
S Mahendran v. The Secretary, Travancore, AIR 1993 Ker 42 (India).
137

country‘s Constitution and was similar to the ostracism faced by India‘s lowest castes, known
as ―untouchables‖.
This majority decision of a five-judge bench consisting of CJI (the then) Dipak Misra and,
Justices Rohinton Nariman, AM Khanwilkar, DY Chandrachud, and Indu Malhotra has
rewritten the manifestation of constitutional dispensation on gender equality, freedom of
religion and untouchability. Hon‟ble Chief Justice (the then) Dipak Misra said that
―patriarchy in religion cannot be allowed to trump the right to pray‖.365 The judgement
prioritizes Article 14 over Article 25 of the Indian Constitution and provoked a great deal of
opposition.
Removing the restriction on entry of women and benefitting them with the equal rights as that
of man to enter and worship at the Sabarimala temple, has led to massive agitation all over
the state of Kerala and has caused anxiety amongst Hindus all over the country. The unrest
saw a large number of women devotees, significantly enough to force the communist-led
State government of Kerala to water down attempts to allow some women who turned out to
be activists, rather than devotees to enter the temple under police protection. This has become
the latest battleground in a long-running conflict between India‘s modern, liberal court
system and deeply conservative elements of its ancient culture.
There were around 49 review petitions filed against the verdict of Supreme Court. These
review petitions relied heavily on the dissenting judgement of Justice Malhotra, the only
female judge on the bench, who had contended that constitutional parameters of rationality
cannot be applied blindly to matters of religion and faith. Recently on February 15th 2019, the
Kerala government said in a written submission submitted to the Supreme Court that
"Attaching impurity to a woman during menstrual period is an abrasion to entire humanity
and abhorrent to civilised society as menstruation is a natural process and is essential for
procreation‖.366
These issues involving faith, religion, rationality and constitutional morality have far-fetching
ramifications and consequences, not only for the Sabarimala Temple but for all the places of
religious worship in this country, which have their own beliefs, customs, traditional practices
and usages, which may be considered to be exclusionary in contemporary society.
365
Supra 362.
366
Press Trust of India, Menstruation Is Natural: Kerala Government to top Court on Sabarimala, NDTV,
February15, 2019.
138

DIGNITY AND EQUAL GENDER RIGHTS
The evolution of women rights in the current Indian scenario has witnessed a major struggle
in society to get their true meaning in consonance with the Indian constitution. The Indian
Constitution was drafted with an intention to be a conscious keeper of its citizens and society;
moreover, it ensured establishing institution such as Supreme Court which would interpret
the moral conscience of the statutes in times of interest clashes. The present issue of not
allowing women of particular age of 10 to 50 years in the Sabarimala Temple is a blatant
mockery of the heart and soul of the Indian constitution. The ban specifically targets the
natural physiological creation of women in the name of the menstrual cycle to protect their
customs and religious rights.
Pluralism is defined as ―the existence of different kinds of people who have different beliefs
and opinions within the same society‖367 along with the inter-religious, secular understanding.
This has been a part of the Sabarimala temple‘s fabric,368 despite having such a vibrant aura
of the temple‘s history the temple authority supports restricting of women. The focal point of
class struggles in India has majorly revolved around the temple. It is considered to be a
matter of pride, faith and affects the sentiments of masses. The perpetrators of discrimination
understood this and took this as their vantage point in discriminating the weaker sections of
the Indian society.369
The framers of the Indian Constitution were aware of these indifferences in the society, that‘s
why they considered untouchability to be the part of Fundamental rights under Article 17 of
the Indian constitution. It is perhaps the only Constitution which makes untouchability as an
offence.370 The recent outcry for equal rights should be seen historically and should be
compared with the Dalit struggle and their reformation. The tussle is not just for rights of
worshipping the Sabarimala deity, it is also a symbol of registering their protest to age-old
dogmatic customs,371 for denying women the entry because of their biological menstrual
cycle.
Recently the controversy caught the ire of whole country when the Former Travancore
Desam Board (Hereinafter ―TDB‖) President fuelled the debate of gender quality and
untouchability with comments like, “There will be a day when a machine is invented to scan
367
Cambridge Dictionary, 2019. Available at https://dictionary.cambridge.org/license.html.
368
OB Roopesh, Sabarimala Protest, 53(49), Economic and Political Weekly (2018).
369
Arijeet Ghosh, The Sabarimala Temple Ban: An Untouchable Rule, Oxford Human Right hub (2018).
370
Upendra Baxi, Jurisprudence of inverted commas, The Hindu, September 03, 2018.
371
Supra 368.
139

if it is the „right time‟ (not menstruating) for a woman to enter the temple. When that machine
is invented, we will talk about letting women inside‖.
Such comments are the normalised mentality of the patriarchal society which India sadly
suffers even after so many decades of independence. For decades reformers like Mahatma
Gandhi, E.V Ramaswami etc., formed the genesis of vehement opposition to such practices.
These names are endless, mere mentioning few will be insulting to others, still, we can keep
their fight alive by questioning the narrow patriarchal thinking and breaking the chains of
such ailing mentality in present society.
The nation needs to stand together and support movements like ―Happy to Bleed
campaign‖372 which have caught the attention of the whole world on social media. Justice
D.Y. Chandrachud bends towards the principles of equality, dignity and privacy by
observing, ―I would love to see a time when every temple, every mosque, every church and
every gurudwara provides women an equal access, as well as equal opportunities in the
clerical hierarchies‖,373 therefore our every step and struggle should be encouraged by such
an imagination to set our thoughts free, until then we all legitimise caged ideology of
patriarchy and inequality.
FAITH AND ITS ESSENTIAL BELIEFS
A Supreme Court judgment forms an instrument of the state as it involves the use of guiding
force and coercive actions through the executive. The argument here which is of utmost
concern is that the use of such force or actions to change people‘s faith and beliefs is
fundamentally wrong. The excessive intervention of the state threatens freedom of religion, a
fundamental right in every liberal Constitution including India‘s.
Religion is the antithesis of reason and must be treated as a separate zone of human
contemplation.374 The question that arises is whether the traditional system of any faith and
religion practiced by the people of this country, enshrined under Article 25 of the
Constitution of India, can be put under the shackles of administration. In the judgement of
372
Victoria Richards, Indian Women Launch ‗Happy to Bleed‘ to protest against ‗sexist‘ religious rule,
Independent, November 25, 2015.
373
Girish Sahane, Sabarimala: Courts didn‘t act when they should have- and overstepped the boundaries when
they did, Scroll, October 24, 2018.
374
Sanjeev Sabhlok, Sabarimala: A serious case of judicial over-reach, The Times of India, December 1, 2018.
140

The State of Bombay v. Narasu Appa Mali375 High Court held that uncodified personal laws
do not fall within the jurisdiction of the courts and matters of cultural and personal beliefs are
not laws. As per the centuries-old custom of Sabarimala temple, women of the age group of
10 to 50 years are not allowed to enter this temple. This is primarily attributable to the
presence of the deity Lord Ayyappa as it is in the form of a ‗Naishtik Bramhachari‘ meaning,
an eternal celibate who is said to practice strict and the severest form of celibacy.
Justice Indu Malhotra, is ironically the only judge who favoured the Sabarimala Temple‘s
male-dominated demand to not allow the women in the temple was a woman. On dealing
with the question of entertaining writ under Article 32 challenging religious practice, in her
judgement she said, ―In a pluralistic society comprising of people with diverse faiths, beliefs
and traditions, to entertain PILs challenging religious practices followed by any group, sect
or denomination, could cause serious damage to the constitutional and secular fabric of this
country.”376
The judgement also laid emphasis on the word ―custom‖ in consonance with ―law‖. The
practice restricting women is continued throughout generations without interruption, and thus
regarded as a custom and an ―essential religious practice‖. The reliance has been placed by
the judge on Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors.377 and Bhimashya
& Ors. v. Janabi (Smt.) Alia Janawwa378 to reiterate the fact that restricting the entry of the
women in Sabarimala is pre-constitutional. Article 13(3)(a) of the Constitution states that the
word ―law‖ includes custom or practices, and these would have an equal force of law.
The exclusion of women from the temple is not a universal practice. It pertains to the
particular age of 10 to 50 years in one particular temple, with the view to preserve the
character of the deity. The dissenting opinion enlightens the fact that there are around 1000
temples of Lord Ayyappa, where the deity is not in the form of a ‗Naishtik Brahmachari‟ and
there are no similar restrictions on the entry of the women from entering the temple.
The emphasis is also laid on the essential practice of 41 days ―Vruthum‖ that is a condition
precedent for the devotees which has been an age old custom and anyone who does not fulfil
the said Vruthum are not allowed to enter the temple. Those women who have not attained
puberty and those who are in menopause alone can fulfil this pilgrimage at Sabarimala as
375
The State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84 (India).
376
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC OnLine Ker 5802
(India).
377
Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors., (2006) 4 SCC 748 [5] (India).
378
Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa, (2006) 13 SCC 627 (India).
141

their menstruation period will eventually fall within those 41 days and it‘s a custom amongst
all Hindu that women do not go to temple or perform any religious activities during periods
(menstruation).379
On the question with respect to the practice that this practice is violative of women‘s right to
gender equality and against fundamental right enshrined under Article 14, it has been stated
by Mr. V. Giri, Senior Advocate in the present case, that ―if women as a class were
prohibited from participation, it would amount to social discrimination‖.380 However, in the
present case, girls below the age of 10 years and women above the age of 50 years can freely
enter the temple and offer worship. Also, Justice Malhotra held that ―Equality in matters of
religion must be viewed in the context of the worshippers of the same faith‖.381
In lieu of Article 25(1) of the Indian constitution, it was submitted that the devotees of Lord
Ayyappa are entitled to the ―freedom of conscience, and the right to profess, practice and
propagate their religion‖. The right to profess the faith of the devotees is preserved only when
the character of the deity as a „Naishtik Brahmachari‟ is preserved. Also, the right of
devotees under Article 25(1) cannot be subjected to the claims made by petitioners as to enter
the temple under Article 14 and 15, since they do not profess religious beliefs in the deity;
instead they are merely social activist and not true holders of faith. One of the devotees, in
the recent interview by BBC, told that ―we have been coming to temple for the last 30 years.
But we may not come back because women entering the temple will spoil our belief system
and sacred rituals.‖382
To address the issue of ‗untouchability‘, Justice Indu Malhotra cleared the fact that this
practice of restricting women is not against the principle disseminated by Article 17 of the
Indian constitution. The customs and practices constituting temple‘s rituals are not associated
with any practice involving ‗caste‘ in the Hindu religion as no such caste-based or religion-
based untouchability is observed at the temple.
The reliance has also been placed on Rule 3(b) of Kerala Hindu Places of Public Worship
(authorisation of Entry) Rules 1965, which prohibits entry of women in Sabarimala. It is
declared that the rule is not ultra vires Section 3 of the 1965 Act since the proviso is an
exception i.e. to ―manage its own affairs in matters of religion‖ in case of public worship for
379
Thantric text of temple worshipping in Kerala Thantra Samuchayam, Chapter 10, Verse II refer supra 362.
380
Supra 362.
381
Id.
382
Sabarimala: The Indian god who bars women from his temple, BBC News (India), October 19, 2018.
142

the benefit of any religious denomination or sect thereof, to manage their affairs in religious
matters.
―Notions of rationality cannot be invoked in matters of religion‖, said Justice Indu

Malhotra. India is a diverse country. Constitutional morality would allow all to practice their
beliefs. The court should not interfere unless if there is any aggrieved person from that
section or religion. In the landmark case, Shayara Bano v. Union of India & Ors.,383 with
respect to the role of Courts in matters concerning religious faiths, customs and beliefs, it is
mentioned that ―it is not for a court to determine whether religious practices were prudent or
progressive or regressive‖. Religion and Personal Law must be perceived, as it is accepted by
the followers of the faith.
THE SUPREME COURT‟S VERDICT
The Supreme Court acts as a soul of Indian Constitution as it brings in the human emotion
and calls for constitutional evolution with time, just as the Canadian Constitution theorises
the “living tree” concept to make sure that constitutional enriched values do not get stagnant
with time.384 The present matter was placed as a writ under Article 32 of the Indian
Constitution which analysed the Judgement given by Kerala High Court in Mahendran385
where the Kerala High court upheld the restriction of entry of women in the Sabarimala
Temple.
The SC in a historical case of IYLA386 placed constitutional morality along with gender
equality at high regards than the temple‘s age-old customs and practices which made women
a mute spectator.387 Interestingly the only woman judge in the constitutional bench, Hon‟ble
J. Indu Malhotra gave the lone dissenting judgement.388
The former CJI Dipak Misra along with Justices A.M Khanwilkar, R. F Nariman, and
D.Y Chandrachud supported the view of lifting up the ban. It was in common consensus
held by majority bench that TDB is a not private trust as its members are selected from state
examination (Kerala Service Commission).389 The bench was of the view that the temple is
383
Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1(India).
384
Supra 370.
385
Supra 364.
386
Supra 362.
387
Supra 368.
388
Tangle of Temple Entry and ‗Pragmatic Politics, 3(41) Economic and Political Weekly (2018).
389
The Travancore Cochin Hindu Religious Institution Act, § 29A (India. 1950).
143

public place as it takes funding from the state government;390 therefore TDB functions as a
state, making it responsible and accountable for implementing the fundamental rights
enshrined in Part III of the Constitution.
The Supreme Court reiterated that any gender inequality in the name of essential practices
and customs under Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Act, 1965 which sustains its authority from Section 4 of the Kerala Hindu Places of
Public worship (Authorisation of Entry) Act was in clear violation of Article 14, 15, 25 and,
51A (e) of the Constitution,391 without which rights of an individual and society will be
paralysed.
The SC in a very clear note held that any exclusion or unequal treatment to a particular
gender invokes the sanctity of Article 14 along with Article 15(1) of the constitution.392 There
is no discriminating ethos amongst the gender on the basis of their physiological
characteristic.393 Any law or statute which tends to discriminate its subject must have the
element of intelligible differentia and the same must have a reasonable nexus to the object it
caters to achieve, but in the present matter, there is no intelligible differentia or reasonable
nexus behind the ban.394
It is interesting to observe how the constitutional document remained the same throughout,
but its spirit of interpretation evolved with time. It is in contextual understanding that how
Kerala High Court in Mahendran case (supra) sustained the ban on women, but with the
passage of time, the apex court harmoniously interpreted the true meaning of statutes. Justice
D.Y. Chandrachud emphasised on the historical evolution and interpretation of Article 17 of
the Constitution which in no manner compromises with the struggle of elimination of
untouchability from the society. Prohibition of untouchability was not framed just to restrict
itself to caste protection; it was framed in a manner of prohibiting ―untouchability in any
manner‖. Imagine the gravity of insensitivity when physiological terms like menstruation are
attached with ‗impure‘ and ‗polluted‘, as it leaves a deep psychological imprint in the minds
of people, which is nothing but torture to women of this country.
390
India Const. art. 290A.
391
Supra 362.
392
Deepak Sibal v. Punjab University and Another, (1989) 2 SCC 145 (India).
393
Anuj Garg and Ors. v. Hotel Association of India, (2008) 3 SCC 1; Charu Khurana and Ors. v. Union of
India, (2015) 1 SCC 192 (India).
394
Shyara Bano v. U.O.I and Ors., (2017) 9 SCC 1(India).
144

There is another issue which is contended i.e., ―Right time to enter the temple‖ under the
paradigm of ‗invention of such machine‟395 is aberrant from the idea of fundamental rights to
our citizens. Similarly, there is a concern related to question of privacy, menstruation is a
private affair of an individual as it impacts the ovulating and menstruating women to have a
normal social day to day life.396 Along with privacy such comments also annihilates the
concept of the dignity of women as such practices coerces women to disclose something
which constitutes the most essential part of human existence, therefore such a ban is clear
violation of ‗Right to live with dignity and privacy‟397 enshrined under Article 21 of Indian
Constitution.
The majority of bench inclined towards what was held in the case of Shirur Mutt398 and S.P
Mittal399 in employing the rationality that Lord Ayyappa devotees doesn‘t come under the
umbrella definition of religious denomination, as they do not have ―uniform religious
tenet‖400 under Article 26 of the constitution. The majority of the bench scripted the
interpretation of Article 26 in lieu of Article 25(1) of the constitution. Rule 3(b) of 1965 act is
in clear violation of Article 25(1), which inculcates the values of ―all person” which supports
the vision of having a society where every person, irrespective of gender, caste, class and
religion have right to ―freely profess, practice and propagate religion‖.401
The apex court was consistent in the view that essential practices should be an intersection
with the principles of constitutional morality. The ―essence of religion”402 is a friend of the
court in such instances where the court has to carve out what constitutes an essential custom.
The essentialities should be in conformity with the Hindu religion, and Hindu religion never
seeks to such practices of excluding women, rather it keeps alive the idea that women are at a
higher position than men. Therefore Rule 3(b) of 1965 Act cannot be considered an inherent
belief of Hindu religion, understanding the weight of argument placed by senior counsel
Indira Jaisingh that ―Women worshippers used to visit the temple and actively participated
in religious offerings in every month for the first rice feeding ceremony of their children‖.
395
Supra 367.
396
National Legal Service Authority of India v. Union of India, (2014) 5 SCC 438 (India).
397
Justice K.S Puttaswamy v. Union of India, (2017) 10 SCC 1(India).
398
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur
Mutt, (1954) AIR 1954 SC 282 (India).
399
S.P. Mittal v. Union of India (1983) 1 SCC 51(India).
400
Supra 362.
401
India Const. art. 25(1).
402
India Const. art. 26(b).
145

It was indeed a historical ruling from male dominated bench who were in vehement
opposition of restricting the entry of women to Sabarimala temple. In principle the majority
ruling became the basis of the judgement, cementing the spirit of constitutional morality and
restoring faith in dignity, liberty and equality in our vibrant society through means of
constitutional values.
CHALLENGES OF SOCIETY‟S POWER STRUCTURE AND ITS STATUS QUO
Let us consider our society as a mechanical machine, when all the spares of the machine are
in their best shape the end result is desirable, but what happens when all the spares working
together are not compatible with each other, sadly this results in disequilibrium in the society.
The former analogy is just a mere attempt to understand the reasons why despite SC‘s clear
directions on lifting up of the ban, the Sabarimala issue is at crossroads. Challenging a reform
in a rigid society is normally the first step of history, be it abolishing the ‗Zamindari system‘,
the abolition of ‗Sati‘ or elimination of caste or marginalised sections entry to the temple.
Gandhi states, ―That those who believe religion and politics aren‟t connected don‟t
understand it either‖. Religion, discrimination and rights have always been an epicentre of
Indian political stage. In Sabarimala context, the states have failed to implement the
directions of SC. Respective parties have made their reservations in consonance with their
vote bank politics. While some have till now opposed the ban others have supported the
struggle to lift the ban. Fringe elements have throughout attempted to incite the sentiments of
masses in view of luring the upper caste organisations like Nair Service Society along with 41
other organisations who are is stakeholders in the protest. Political parties have a tendency to
woo their voters by supporting their bigot cause; lack of political will along with
appeasement policies has inflicted enough harm than any other thing.403
It is quite astonishing that Kerala is the most literate society, with the highest male to female
sex ratio is witnessing comments like, ―the beliefs and customs of the devotees cannot be
changed through a judicial process and that the opinion of the priest is final‖.404 The
inference from Justice Malhotra‟s dissenting judgement can be taken in a manner that
judicial activism should not touch the age old customs of religious matters. Similarly, there is
an existence of grey area when it comes to interpreting what integrates an ―essential religious
403
Rajeev Dhavan, Religious freedom in India, 35(1), Oxford University Press, 208 (1987).
404
Supra 362.
146

practice‖, like any other reformative interpretation by courts results into rewriting of their
faith.
It is quite ironical that the vehement opposition by TDB saw an altogether different shade of
arguments when the matter was placed before the bench for a review petition. The TDB was
seen as an active supporter of lifting up the ban and supported the stance of IYLA in harmony
with constitutional morality and its principles of just and better society.405 The altering stance
of Kerala government also raises suspicion about their intention through their two different
affidavits filed before the SC. Therefore this creates a problematic situation for other
stakeholders at cost of opposition to lift the ban, as a historical judgement is being celebrated
by society as a whole, but the native population of tribal women have taken their way to
streets to register their dissent against the judgement.406 It is the inherent duty of the state to
provide and to create a positive atmosphere so the women can be encouraged to visit
Sabarimala temple. In recent times Kanaka Durga, Bindu Ammini were socially ostracised by
the local markets for visiting the temple. Similarly, journalist Kavitha Jagdal and social
activist Rehana Fathima were protected by more than 100 policemen through their journey to
temple.
The state should ensure that there is proper protection to women devotees, a positive dialogue
should be established with all the stakeholders in lieu of recent SC judgement to avoid any
resort to violent measures. Every practice which discourages women to enter temple should
have refrained amidst instances of ―purification temple premises” after two women devotee
entered the temple to worship Lord Ayyappa.407 There should be serious attempts by the state
to implement the guidelines under the Directive Principle of State Policies, ―to renounce
practice derogatory to the dignity of women‖408along with international conventions,409
otherwise, the historical judgement will become a dead letter.
405
TDB changes stance, now backs entry of all women to Sabarimala Temple, Business Standard, February 6,
2019.
406
Radhakrishnan Kuttor, Local tribal deeply hurt against Kerala govt.‘s decision on Sabarimala, The Hindu,
October 17, 2018.
407
ETB Sivapriyan, Two women entered Sabarimala temple; ‗Temple Purified‘, Deccan Herald, January 02,
2019.
408
India Const. art. 51-A(e).
409
Convention on the Elimination of all Forms of Discrimination against Women, Chapter IV, (1981).
147

CONCLUSION AND WAYFORWARD
Customs, faith and religion followed by Hindus involve a chaotic combination of traditions
and practices which cannot be put into the straightjacket formula of codification. India‘s
diversity gave birth to unique beliefs and customs that may seem eccentric on the face but are
real, and more importantly, forms a part of the belief followed by the people of the society.
Applying the uniform criteria on all the religions and how it should and should not be
practised may seem like viewing the Hindu way of life through a Semitic prism that can lead
to troubling outcomes.
The Indian Constitution provides with the provisions to curb the instances of social
exploitation and promotes a genderless society where both men and women should be given
equal footing in every aspect of life. The Sabarimala temple ban is not just 800-year-old
restriction on the women in the age group of 10 to 50 years from practising their individual
right to freedom of religion, but also is reflective of all the social ostracism, oppression and
stigma around the natural phenomenon of menstruation that it makes the women ‗impure‘
and ‗untouchable‘.
Determining whether arguable beliefs, practices, and organizations are religious by seeing
how closely they resemble, what is undeniably religious is a method that has been used by
courts in difficult questionable cases. The present Sabarimala Judgement will not be limited
only to this particular issue but it will have wider ramifications. The courts should see this
case as an opportunity to reform the historical shortcomings and should look beyond the
―essential practice doctrine‖ to improve the existing condition of women in society.
It is often said that law is an evolving concept and it should grow as the society grows. The
Sabarimala judgement is a positive step towards the far-reaching goals towards gender
equality and that can help in setting the tone for a liberal revisiting of the constitution. It is
the duty of the Supreme Court to act as a balancing wheel between constitutional morality
and religious faith subject to social control. Underlying the concept of co-existence in
harmony with the exercise of Fundamental Rights of others enshrined under our constitution,
there are number of values, which helps us to guarantee liberty and freedom. All important
values, therefore, must aim to strike this balance to achieve greater justice.
To continue the existence of a growing society, it has to experience a perceptual shift from
being the disseminator of dominated patriarchal notions of obliging more rigorous standards
of purity from women to be the pacifier of equality and freedom where women are in no way
148

considered lesser, burdened, inferior or weaker to man. There cannot be circumstances where
the women are worshipped as goddesses on one hand and denied the right to worship and
pray inside a temple on the other hand. If religious customs and faiths are not in tune with
contemporary conceptions of women‘s rights then for every one step forward there will be
two steps back.
149

VIRTUAL CENSORSHIP IN THE ERA OF ONLINE STREAMING:

THE CHALLENGES AND CONSEQUENCES
Authored by Shreshtha Mathur

Student of National Law University, Jodhpur.
shresthamathur123@gmail.com
ABSTRACT
With the advent of online streaming services like Netflix, Hotstar, Amazon Prime Video and
others, content accessibility for viewers has reached unprecedented heights. The gap between
an interested viewer and a content provider has been reduced to a mere online transaction.
In a very small amount of time, online content providers have proved their mettle by
establishing a humongous viewership which could, potentially, turn the concept of going to
the movies obsolete. Recently, a Code of Best Practices for Online Curated Content
Providers was signed by several online streaming services which explores the concept of
voluntary censorship as opposed to the conventional method of pre-censorship employed for
movies.
In light of the emergence of this new culture of online streaming, this paper seeks to analyse
the constitutional limits of the censorship of its content under Article 19(1)(a), Article 19(2)
and Article 14. The author seeks to establish that the internet cannot be censored in the same
way as movies. The object is to establish that the distinction drawn between the internet and
other mediums is based on an intelligible differentia which is a requirement under Article 14.
Most of the online streaming services have agreed to voluntary censorship recently and the
author justifies it as a reasonable step as the Government cannot censor them like movies.
However, the Government does have some power to regulate their content owing to their
status of an intermediary under the Information Technology Act.
INTRODUCTION: The prevalent legal position of censorship and the new challenges
posed by live streaming in India
Different mediums have different laws of censorship to govern them. For the examination
and certification of films, the Central Board of Film Certification [“CBFC”] was constituted
under the Cinematograph Act.410 The CBFC accords U, UA, A and S certificates to movies
410
Cinematograph Act, 1952, Section 3.
150

before their public exhibition in accordance with their content.411 The constitutionality of
such pre-censorship has been upheld by the Supreme Court.412 The exhibition of content on
television is regulated by the Cable Television Networks (Regulation) Act, 1995 and Cable
Television Networks Rules, 1994. Programmes broadcasted on television must not contain
anything offensive to good taste or decency, an attack on religions or communities, anything
obscene, defamatory, deliberate, suggestive innuendos, half-truths etc.413
Until recently, Bollywood movies released in the theatres after getting certified and approved
would then be uploaded on the internet to reach a larger audience. Similarly, television shows
which got televised would then be made available on sites like YouTube.
It was declared by the Information and Broadcasting Ministry in 2016 that it has no control
over films appearing online and was not pursuing to create a regulatory framework for
censorship of content appearing on the internet.414 But, this scenario has now changed in
light of TV series and movies being exclusively released on websites like Netflix and
Amazon Prime. It begs the question of censorship as it is fresh and unregulated content
directly reaching the masses without any certificate or formality.
The Code of Best Practices for Online Curated Content Providers [“Code”] has been drafted
by the Internet and Mobile Association of India [“IAMAI”].415 The IAMAI is a registered
non-profit body and its mandate is to expand and enhance the online and mobile value added
services sectors.416 Netflix, Hotstar, Jio, Voot, ALT Balaji and others signed this code that
prohibits the Online Curated Content [“OCC”] platforms from displaying certain content.417
Amazon Prime, on the other hand, opposed this idea of censorship and did not sign the code.
Such prohibited content, according to the Code includes content which violates the
Information Technology Act, Indian Penal Code, Emblems and Names (Prevention of
Improper Use) Act and Indecent Representation of Women (Prohibition) Act among others.
411
Cinematograph Act, 1952, Section 5A.
412
K. A. Abbas v. The Union of India, 1971 AIR 481.
413
The Cable Television Networks Rules, 1994, Rule 6.
414
Aroon Deep, I & B Ministry: We are not considering censorship of Hotstar and Netflix, Medianama,
December 13, 2016, (June 18, 2019, 06:53 PM) https://www.medianama.com/2016/12/223-ib-ministry-not-
considering-censorship-hotstar-netflix/.
415
Code of Best Practices for Online Curated Content Providers, Medianama, January 14, 2019, (June 18, 2019,
06:53 PM) https://www.medianama.com/wp-content/uploads/Consolidated-Draft-14012019.pdf.
416
About us, Internet and Mobile Association of India, (June 18, 2019, 06:56 PM)
https://www.iamai.in/AboutUs.
417
Netflix, Hotstar, Jio, others sign self- censorship code, The Economic Times, January 18, 2019, (June 18,
2019, 06:57 PM) https://economictimes.indiatimes.com/industry/media/entertainment/netflix-hotstar-jio-others-
sign-self-censorship-code/articleshow/67581405.cms.
151

These OCC platforms have agreed to voluntary censorship under political pressures and
criticisms over explicit content.418
The objectives of this Code are to empower consumers to make informed choices on age-
appropriate content, protect the interests of consumers in accessing the content they want to
watch and respect creative freedom of content creators and artists. It also provides for the
redressal of complaints made by any viewer with respect to the content featured on these
OCC platforms.
THE OBSTRUCTIONS FACED IN THE CENSORSHIP OF CYBERSPACE
Films and television shows are created and broadcasted in the country. As a corollary, they
are regulated under the Indian law quite conveniently and have a clear nexus. However, in the
case of online content, there are certain fundamental issues attached with censoring it. It is a
grey area as there is a lack of clarity with respect to it due to the following reasons: -
 Cyberspace does not lie within the borders of any country. The Declaration of the
Independence of Cyberspace states that the governments of the world have no
sovereignty over cyberspace.419 Not falling within the borders of India makes it
technically difficult to regulate because it is content that is not necessarily the product
of the creativity of Indian citizens.
 The quest for parity between offline and online regulation is undeniably attractive. 420 A
goal aligned to a focus on achieving the same outcome in offline and online contexts is
to avoid inefficient discrimination between technologies.421 If two technologies can
deliver similar outcomes, the government should draft laws in ways that make only
relevant distinctions.422 Online content requires a holistic legal response that recognises
the extent to which existing rules will apply to them.423 The objection to the aspiration
of achieving a similar level of content regulation online as well as offline is the
418
Complaint Against Nawazuddin for "Abusing" Rajiv Gandhi On Netflix Show "Sacred Games", NDTV, July 10, 2018,
(June 18, 2019, 06:51 PM) https://www.ndtv.com/india-news/complaint-against-nawazuddin-for-abusing-rajiv-gandhi-on-
netflix-show-sacred-games-1880837.
419
John Perry Barlow, A Declaration of the Independence of Cyberspace, Electronic Frontier Foundation (June
18, 2019, 06:51 PM) https://www.eff.org/cyberspace-independence.
420
Maurice Schellekens, 'What Holds Offline, Also Holds Online?' in Starting Points for ICT Regulation,
Deconstructing Prevalent Policy One-Liners, Vol. 9 (TMC Asser Press: IT & Law Series, 2006) 51.
421
Lyria Bennett Moses, Creating Parallels in the Regulation of Content: Moving from Offline to Online, 33
UNSWLJ 592 (2010).
422
Id.
423
Supra 421 at 582.
152

argument that the internet extends beyond national boundaries and hence cannot be
regulated.
 As evidenced by continued use of websites such as torrentz and songs.pk, there are
ways that users have successfully explored to circumvent restrictions placed on access
to websites. In addition to that, online content cannot be regulated in the way to censor
prohibited content shared on a peer to peer network.
 Control over online content cannot be absolute, as it cannot prevent access to all
prohibited material; this regulation needs to be effective at limiting access to certain
categories of material.424 The internet, as a platform, is far more approachable than the
content displayed in theatres and on television. It provides an opportunity to the
common man to express his ideas and opinions through various ways like blog posts,
tweets etc. Multimedia display is also possible as they have the freedom to post
pictures, videos, audio-clips etc. The internet does not require the common man to have
a big budget and power in order to share his ideas and talents with the world.
Restricting such a crucial freedom in the contemporary context could have dangerous
repercussions on the right to freedom of speech and expression, which is a fundamental
right of the citizen.
While it is difficult to regulate the internet, it is not impossible. Ultimately, if the government
were to commit itself to content regulation, it could ensure a robust content regulation
regime. For instance, the Government can restrict internet access, have extensive surveillance
or formulate severe penalties for those caught disseminating or possessing illegal material.425
These options are distasteful, especially in a democracy like India but the objective to achieve
parity in offline and online content regulation needs to be based on it being undesirable,
rather than its impossibility. Therefore, it is concluded that virtual censorship is possible but
undesirable.
CONSTITUTIONALITY OF VIRTUAL CENSORSHIP IN THE CONTEXT OF THE

FREEDOM OF SPEECH AND EXPRESSION
Recently, the Delhi High Court dismissed a plea which sought framing of guidelines to
regulate online streaming platforms, after the Ministry of Information and Broadcasting
424
Lawrence Lessig, Surveying Law and Borders: The Zones of Cyberspace, (1996) 48 Stanford Law Review
1405.
425
Supra 421 at 595.
153

stated that they do not require a licence from the ministry. 426 A notice was issued by the
Bombay High Court to various union ministries in a PIL which sought action against all web
streaming platforms like Netflix for exhibiting programs containing nude content and vulgar
language.427 Another petition was filed which contended that soft pornography is being
permitted on ‗hotstar.com‘ and the court made directions to look into the issue.428 All these
petitions have led to the questioning of the vagueness surrounding the constitutionality of
such censorship. This shall be analysed by the author in the context of the freedom of speech
and expression on the basis of Articles 19(1)(a), 19(2) and 14.
(a) Article 19(1)(a): Freedom of Speech and Expression

Article 19(1)(a) of the Constitution of India lays down that every citizen shall have the right
to freedom of speech and expression.429 It has also been affirmed in the Universal Declaration
of Human Rights that everyone has the right to freedom of opinion and expression.430
Freedom of expression must not merely protect accepted ideas but those that offend or shock
any sector of the population as there is no democratic society without pluralism and
tolerance.431 Home to various religions, nationalities, caste groups, cultures and schools of
thought, India is a relatively more conservative and sensitive country. Irrespective of this, the
judiciary has always attempted to keep an open mind with respect to artistic freedom to
express above the sentiments of hyper-sensitive fringe groups. The "reasonable man test" has
been actively employed for the same.432 In the Bandit Queen case, an attempt was made to
restrain the exhibition of the movies due to a molestation scene but the court held that the
object of the scenes was not to titillate the cinemagoer‘s lust but to arouse sympathy for the
victim.433 In another case, it was held that the question of obscenity must be seen in the
context in which a photograph appears and the message it wants to convey.434
426
HC dismisses PIL to regulate Netflix, Amazon Prime Video content, Times of India, February 8, 2019, (June
18, 2019, 06:48 PM) https://timesofindia.indiatimes.com/business/india-business/hc-dismisses-pil-to-regulate-
netflix-amazon-prime-video-content/articleshow/67903720.cms.
427
Law Clerk From Bombay HC Files PIL Seeking Regulation Of Online Content, Cites ‗Sacred Games‘; HC
Issues Notice, Live Law, October 6, 2018, (June 18, 2019, 06:47 PM) https://www.livelaw.in/law-clerk-from-
bombay-hc-files-pil-seeking-regulation-of-online-content-cites-sacred-games-hc-issues-notice-read-order/.
428
Delhi HC Order W.P.(C) 10724/2016, Un-Canned Media Pvt. Ltd. v. Ministry of Information &
Broadcasting, available at http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=217255&yr=2016 (June 18, 2019,
06:44 PM).
429
India Const. art. 19, cl. 1, sub cl. a.
430
Article 19, Universal Declaration of Human Rights.
431
Union of India v. KM Shankarappa, 2001 (127) ELT 8.
432
N.K. Bajpai v. Union of India, (2012) 4 SCC 653.
433
Bobby Art International v. Om Pal Singh Hoon, AIR 1996 SC 1846.
434
Aveek Sarkar v. State of West Bengal, 2015 Cri LJ 2503.
154

Freedom of speech and expression is of paramount importance under a democratic

constitution which envisages changes in the composition of legislatures and governments.435
Former Chief Justice of India, M.H. Beg noted that this freedom is the arc of the covenant of
democracy because public criticism is essential to the working of its institutions.436 In fact, it
lies at the foundation of all democratic organizations.437 It cannot be an absolute freedom as it
is necessary to tolerate unpopular views.438
In conclusion, it is important to protect the freedom of speech and expression.
(b) Article 19(2): Reasonable Restrictions

The concept of censorship arises from Article 19(2) which states that the State can impose
reasonable restrictions on the exercise of the right in the interests of the sovereignty of India,
the security of the state, friendly relations with foreign states, public order, morality or in
relation to contempt of court, defamation or incitement to an offence. 439 If any limitation on
the exercise of the fundamental right under Article 19(1)(a) does not fall within the four
corners of Article 19(2), it cannot be upheld.440 The phrase "reasonable restriction" connotes
that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of
an excessive nature, beyond what is required in the interests of the public.441
There have been concerns with respect to the exposure of children to the OCC services. In the
United States, it has been argued that the Constitution was not drafted with children in mind
and protection of the freedom of expression often collides with safeguarding the welfare of
children.442 In terms of access to internet sites, the issue is that when materials are restricted
for children, the spill over effect burdens adult access to lawful materials and is a setback for
the First Amendment.443
Fear of serious injury cannot alone justify suppression of free speech and there must be
reasonable ground to justify such suppression. In order to determine the effect of an act on
the law and order situation in the society, it is important to see the disturbance of the current
435
Sakal Papers Ltd. v. Union of India, [1962] 3 SCR 866.
436
Bennett Coleman v. Union of India, [1973] 2 SCR 829.
437
Romesh Thappar v. State of Madras, [1950] SCR 602.
438
S. Khushboo v. Kanniamal, (2010) 5 SCC 600.
439
India Const. art. 19, cl. 2.
440
Express Newspapers (Private) Ltd. v. Union of India, AIR 1958 SC 578.
441
Chintaman Rao v. State of Madhya Pradesh, [1950] SCR 759.
442
Martha McCarthy, The Continuing Saga of Internet Censorship: The Child Online Protection Act, 2005,
BYU Educ. & LJ 83 (2005) 93.
443
Id.
155

life of the community which leads to the disturbance in the public order.444 In the
contemporary context, electronic media has become a powerful influencing tool because of
its audio-visual impact and its wide range covering almost all the sections of the society.445
Online content has always been subjected to some amount of censorship as it is being catered
to Indian audience in the territory of India and it was always supposed to be in consonance
with the Indian law. It is asserted that the authority given to the government to employ
reasonable restrictions under Article 19(2) to restrict the freedom under Article 19(1)(a) must
be used in a very sparse manner in order to protect the right. In light of its reach, it must be
censored in a reasonable manner and the threshold must be more than that of television and
films.
NEED FOR A REASONABLE CLASSIFICATION BETWEEN OCC PLATFORMS

AND OTHER MEDIUMS: Analysis of the constitutionality in the context of Article 14
Article 14 embodies the principle of equality before the law and the equal protection of the
laws.446 The purpose is to protect persons who are similarly placed against discriminatory
treatment and it does not operate against rational classification.447 The author argues that
there exists a reasonable classification between the treatment of OCC services and motion
pictures. So, they must be treated differently. Since, Article 19(2) allows for reasonable
restrictions, Article 14 must not be violated.
Article 14 does not mandate that un-equals are to be treated as equals.448 The law has been
well settled for many years that members of one homogenous group have to be treated
equally. Where an act is arbitrary, it is implicit in it that it is unequal according to political
logic and constitutional law and is therefore, violative of Article 14.449 The classic nexus test
is that the classification must be founded on an intelligible differentia and the differentia must
have a rational relation to the objects sought to be achieved by the act.450
444
Kanu Biswas v. State of West Bengal, [1972] 3 SCR 831.
445
Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal, (1995)
2 SCC 161.
446
India Const. art. 14.
447
MP Jain, Indian Constitutional Law 880 (7th ed., LexisNexis, 2016).
448
M. Jagdish Vyas v. Union of India, AIR 2010 SC 1603.
449
E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 38.
450
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75.
156

It is universally recognized that the treatment of motion pictures must be different from that
of other forms of art and expression.451 Motion pictures are able to stir up emotions more
deeply than any other product of art due to their versatility, realism and coordination of the
visual and aural senses.452 Cinematograph Act cannot be applied to the online streaming
platforms as they carry out private exhibition of content, instead of a public exhibition. By
the very nature of the medium, the width and reach of internet is manifold as against
newspaper and films and its use is solely based upon individualistic approach of each
individual without any check, balance or regulatory ethical norms for exercising freedom of
speech.453 It has been held in the Shreya Singhal case that there is an intelligible differentia
between speech on the internet and other mediums of communication for which separate
offences can certainly be created by legislation.454
Therefore, it is concluded that there is an intelligible differentia between the treatment of

films and OCC services in terms of censorship as the two mediums are very different and it is
important to make a distinction between them to ensure better protection of Article 19(1)(a).
Also, the code achieves the objective of such distinction as it seeks to treat OCC content
differently. In conclusion, the code satisfies the test and cannot be called arbitrary as it treats
unlike mediums in an unlike way.
ANALYSIS OF OCC SERVICE PROVIDES AS INTERMEDIARIES
Service providing platforms like YouTube, Netflix, Google, etc. are intermediaries under the
Indian law. Intermediary (with respect to any particular electronic records) means any person
who on behalf of another person receives, stores, transmits or provides such records and it
includes internet service providers, web-hosting service providers, search engines etc.455 As a
general principle, intermediaries are entitled to safe harbour protection. 456 Intermediaries are
not held liable for any third party information or data made available by it if it proves that the
contravention was committed without its knowledge or that he had exercised all due diligence
to prevent it.457 With the introduction of movies and series exclusively introduced by the
OCC services, it is important to make a distinction with respect to content that is produced by
451
K. A. Abbas v. The Union of India, 1971 AIR 790.
452
Id.
453
Shreya Singhal v. Union of India, (2015) 5 SCC 173.
454
Id.
455
Information Technology Act, 2000, Section 2(1)(w).
456
My Space Inc. v. Super Cassettes Industries Ltd., 236 (2017) DLT 478.
457
Information Technology Act, 2000, Section 79.
157

OCC and content with respect to which it acts as an intermediary. There are certain issues
with the law regulating intermediaries which have been laid down in the following points:
 Intermediaries are supposed to observe due diligence, i.e. they must inform the users
not to host, display, upload, modify, publish, transmit, update or share any information
that is grossly harmful, harassing, blasphemous, obscene, pornographic etc. 458 Upon
receiving knowledge or on being notified by the Government that such information,
data or communication link of the intermediary is being used to commit the unlawful
act, the intermediary must expeditiously remove or disable access to that material on
that resource without vitiating the evidence in any manner.459 This is a highly
ambiguous and drastic provision as it is a unilateral attack on the suitability of content.
 The Information Technology [“IT”] (Procedure and Safeguards for Blocking for
Access of Information by Public) Rules, 2009 provide for blocking of web pages
without proper publication or notice to public containing the reasons for blocking.460
The process of blocking is undisclosed and fails to meet constitutional safeguards of
natural justice. There must be a proper mechanism for looking into such issues and not
an arbitrary one. Instead of a unilateral decision, a committee must be constituted to
look into such matters and decide accordingly. The person aggrieved by the decision of
such a committee must also be empowered to appeal against the same.
 The Intermediaries Rules are ambiguous and require private intermediaries to
subjectively assess objectionable content which actively waters down the exemptions
from liability granted to intermediaries by Section 79 of the IT Act.461
 When required by lawful order, the intermediary is supposed to provide information or
any such assistance to lawfully authorised Government agencies on a request in writing
stating the purpose of seeking such information or assistance.462 In the KS Puttaswamy
case, the right to privacy was held to be a fundamental right. 463 Information provided
by intermediaries on a written request will result in wire-tapping of the internet without
any legal safeguards which was held unconstitutional.464 Such surveillance of the
458
Information Technology (Intermediaries Guidelines) Rules, 2011, Rule 3(2).
459
Information Technology Act, 2000, Section 79(3)(b).
460
Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public)
Rules, 2009, Rule 9; Information Technology (Procedure and Safeguards for Blocking for Access of
Information by Public) Rules, 2009, Rule 10.
461
Supra 453 at 42.
462
Information Technology (Intermediaries Guidelines) Rules, 2011, Rule 3(7).
463
KS Puttaswamy v. Union of India, (2018) 1 SCC 809.
464
People's Union of Civil Liberties v. Union of India, (1997) 1 SCC 301.
158

internet must be done in a sparse manner. This power must only be exploited only in
cases of threat to national security.
Therefore, the role of OCC services as intermediaries clarify that they are currently not
completely unregulated and do face some amount of regulation. This regulation is also
objectionable in its character. By virtue of catering content to the Indian audience and
seeking to make money out of it, it is obvious that the Government of India expects to have
control over online content but this control must be constitutional in nature.
CONCLUSION
A Madras High Court bench directed the Central Government to take expeditious steps to
bring all the OCC services into a legal framework.465 The online phenomena such as blue
whale game bring out the negative side of the internet and the courts cannot remain mute
spectators when faced with such a social menace.466
Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the
right of an individual to listen, read and receive the said speech.467 The freedom of speech
and expression of not only the owners but the viewers of OCC services cannot be
unnecessarily curtailed in the name of restrictions. The Government cannot apply the same
threshold that it applies to other mediums as it is no way a public exhibition of content and it
is actually a private activity of an individual. A counter argument might be presented that
when people watch a motion picture on YouTube after its release, it can be called a private
activity by this logic which makes it flawed. However, this argument cannot stand as such
content has already been censored before its actual public exhibition but online content does
not require any exhibiting in public.
It must be borne in mind that every element that might offend or be unacceptable to a section
of the society cannot be prohibited as per law. For example, a gay love making scene might
offend a lot of persons but it might be a form of artistic freedom which seeks to liberate
minds. The question whether a man has committed a breach of law and order is a question of
degree and the extent of the reach of the act upon the society which must be answered on the
465
Judicial Registrar, Madurai Bench of Madras High Court v. Secretary to Government, Union Ministry of
Communications, (2017) 8 Mad LJ 712.
466
Id.
467
Tata Press Ltd. v. Mahanagar Telephone Nigam Limited, (1995) 5 SCC 139.
159

basis of facts.468 Where the consequences of taking an activity online are qualitatively
different from its offline equivalent, it seems likely that an attempt to achieve equivalence by
applying the existing offline principles is doomed to be a failure.469
The content made available by OCC services cannot and should not be put at par with the
content available on other mediums as it would be an unreasonable restriction of the Article
19(1)(a) and a violation of Article 14. Online content deserves to be treated in a lenient way
as the publication of content on these services is a private activity and not a public one. The
right of a film maker to make and exhibit his film must also be respected as it is a part of his
fundamental right under Article 19(1)(a) and may be intended for public exhibition or purely
for private use.470
In conclusion, high thresholds of censorship cannot be employed in the case of OCC services
content as it usually caters to a liberal audience which is not hyper sensitive. The voluntary
censorship code is a reasonable way to make a distinction between OCC services and other
mediums. It is a sincere hope that the judiciary will also treat them distinctively along with
different thresholds.
468
Arun Ghosh v. State of West Bengal, [1970] 3 SCR 288.
469
Jacob Werrett, Aligning Cyber-World Censorship with Real-World Censorship, 9 Conn. Pub. Int. LJ 385
(2010).
470
Directorate of Film Festivals v. Gaurav Ashwin Jain, (2007) 4 SCC 737.
160

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• FEATURED: PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW & NEW

FACE OF MERCY: COMPARATIVE ANALYSIS BETWEEN NIGERIA & INDIA

• FEATURED: CONSTITUTIONAL & LEGISLATIVE FRAMEWORK OF CIVIL

• FEATURED: NRC IN ASSAM: ANALYZING CONSTITUTIONAL MORALITY &

Dedicated to the Growth & Evolution of Constitutional Law in India

© Publication of Agradoot for July 2019

Editorial Board: Advisory Council & Journal Coordinators

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Founding Board (Permanent Members)

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FROM THE DESK OF THE EDITOR-IN-CHIEF ............................................................. 6

PRESIDENTIAL PARDONING POWER, JUDICIAL REVIEW, AND THE NEW

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