The legal philosophers ponder over the most debated distinction between Is and Ought. The two [Is and Ought] issues are at present very prominent in the legal realm that are (a) whether the legal rules belong to the “Is” category or to the “Ought” category, and (b) whether it is possible to distinguish between ‘the law as it is’ and ‘the law as it ought to be’.

Introduction

Before putting forward both the aspects of Ought Law, at first we need to be clear regarding what is “Is Law” and “Ought Law.” Is Law is primarily referred to the Black Letter Law which has been made and is applicable on people by a competent authority. On the other hand ‘Ought’ Law is not a formal law like the Is Law it is basically an ideal type of law based on morality. This Law is somehow considered to be better than the present laws and shall be used as an approach to reach the ideal position. It is outside the realm of law which is not achieved will become Is Law of the then time.

And certainly the distinction between Is and ‘Ought’ is made by the Positivists. Certainly Is Law Is Law because it is the law prevailing, be it just, unjust, bad or good and not because of its ‘Ought’ character which is deemed to be just better than the existing law which might prevail in future. The aspect of ‘Ought’ Law is primarily discussed in Kelsen’s Pure Theory of Law.

What does a Pure Theory of Law means and what is the impurity which has been eradicated from it to be called Pure Theory of Law? The impurity here is Austin’s theory of Law and here Kelsen’s theory is working as a filter of it to filter out the materials of Austin’s Theory of law. Austin’s theory says about law that Law is a command of sovereign backed by sanctions. According to Kelsen construing to Austin’s theory, he infers that the theory of law is that it deals with how the law is and not what it ‘Ought’ to be.

Here Kelsen points out the fact regarding Austin’s theory of law that where law is a command of a sovereign, backed by sanction. But here, Austin’s theory is saying that what law ‘Ought’ to be and not what law is. This is the point where Austin’s theory fails on justifying International law, procedural law etc.

Though, its core remains same and justified but it primarily fails in explaining other procedure related aspects of a legal system. For example, if there is a sovereign that commands and imposes sanctions, so how this theory describes the rights conferred to the minorities given in the constitution of India, how we can explain that? Kelsen wanted his theory to be applicable in all other laws and legal system. He proposed the concept and norms of a particular legal system. He propounded the concept that if we subtract the elements of ethics, history, politics psychology, sociology etc from the aspect of law, then we get a pure and an actual definition of law that what law actually is.

Norms are the patterns of behavior, something which are related to the command which may pave the path to aspects of ethics, practices, etc. Taking an example, walking on left is Law, and now has become a custom. So, even if the particular law is repealed, people might have the tendency to move on the left side. This position depicts that a norm was an Is Law and now it is still followed as it has determined the pattern of the human behavior. Norms might have some repercussions but those cannot be considered as sanctions as norms at that time are not a law. 

For example if we do not eat with a fork, we might have eaten by hand. Here, the aspect of eating by hand is not considered as sanction but just a consequence. It is to be borne in mind that norms are not at all backed by sanction by any sovereign unless it holds the character of Is Law. Now a question arises that can the constitutionality of an Is Law be checked by another Is Law without touching the ‘Ought’ realm? The Is Law is taken into account as a yardstick and cannot per se check the constitutionality. 

The ‘Ought’ foundation has to be seen of that Is Law to interpret that Is Law to check the ambit of interference. Without which the actual meaning cannot be cull out to check the actual purpose of the Is Law in question. The exercise in the realm of Is is considered only after relying upon the Oughts and every act been made in our country has to be checked by the constitutionality and therefore it is practically a reality that ‘Ought’ cannot be separated from the Is.

According to Kelsen, norms are basically the series of Oughts propounded by Kelsen. For example, if a murder is committed, the person ‘Ought’ to be punished as per the law. But here, Kelsen clarifies the fact that according to his theory, it doesn’t matter whether the person is punished or not, explicitly ruling out the elements of morality, effectiveness of law, ethics, politics etc.

Kelsen emphasized on finding the main source or an origin of these norms (how murderer ‘Ought’ to be punished). He pursued to look for the origin of these norms, which he named it as a ‘Grundnorm’, from which the fresh norms are created. One of the arguments can be put forward in context of the same is that the basic structure of the constitution can be regarded as the Grundnorm. Because it is true that almost every aspect of the rights and duties of a citizen and human behavior is associated with the basic structure.

But in my opinion an argument can be put forth justifying the Grundnorm may be associated with the elements of the Preamble of the Constitution (India) as ‘JLEF’, i.e. Justice (Socio, Economic and Political), Liberty (thought, belief, faith, expression and worship). It may be justified by the assertion of the fact that all the aspects of procedure in CrPC, e.g. bail, arrest, etc primarily ensures the aspect of the fair trial ensuring the liberty of person and that is what we look out through the concept of Grundnorm. Basic structure can be argued as a Grundnorm as major portion of the constitutionality of rights and duties emanate from the basic structure. The Grundnorm is required to be there in any of the legal systems of any country or place.

Kelsen directs to look out the ‘Oughts’ of that legal system i.e. what ‘Ought’ to happen, ‘if X happens Y ‘Ought’ to happen’, then follow the hierarchy of norms and take out the Grundnorm. This is how the Pure Theory of Kelsen asserts that this particular theory is compatible to and manageable with any legal system.

Kelsen specifically rejected the idea of command by the sovereign in Austin’s definition of law. He expressly rejected the psychological element like an overbearing that a person is giving commands to its subjects and those subjects ‘Ought’ to obey the command and in contradiction to which will be dealt by the sanction. The element of ‘will’, that is primarily de-psychological command must be eliminated from the aspect of law. Coming to the aspect of sanction, as Austin says that the sovereign gives the command and disobedience of that command can invoke the role of sanction on the people who are the subdues of the sovereign. For example, if a person is kidnapped, theory of Austin says that the person must be punished according to law.

But Kelsen is of the notion the fact that an elaborative procedure must be followed according to the law and the prescribed norms (getting arrested, getting inquired, framing of charges, fair trial, application for bail etc). However, Austin’s theory is acceptable in its core form but when it comes to the elaboration of the procedures prescribed in various laws, it duly fails. But Kelsen took advantage of that loophole and ensured the tracing of Grundnorm by looking at its hierarchy of ‘Oughts’.

Most importantly, Kelsen professes that ‘finding of a fact by a Judge is not at all necessary’. But, for the purpose of implying those norms, the judge ‘considers it to have happened’. For example, considering the Ayodhya case (M Siddiq (D) Thr v. Mahant Suresh Das and Ors, Civil Appeal Nos. 10866 – 10867), the Judge happened to assume the title to the Hindu side possession. But that may not happen in the actual sense. But the Judiciary regards it to have happened to apply the norm i.e. the title granting aspect to the side having adverse possession. Now, construing to this scenario, if we trace the Grundnorm, we will find it to be the aspect from the Preamble’s ‘JLEF’ or we can refer to certain sections of CPC (Civil Procedure Code, 1908) of entitlement and again it leads us back to the ‘JLEF’ aspect of the Preamble of COI. 

Criticism

Kelsen’s theory is a well-known legal theory. However, it has a number of serious flaws. Its sole focus on the elements of law, without considering other factors such as politics, morality, and the efficacy of law, leaves a significant gap in the theory, since law does not exist in a vacuum. Kelsen’s critics claim that Pure Philosophy is a logic-based community, and that there is no room for fact in his theory, making it insufficient to comprehend the full ramifications of legal systems and rules. 

Kelsen’s main emphasis on the role of authorities in the legal system is also blatantly on the aspect of law enforcement. In essence, it disregards the position of ordinary people in the state and their interests in the establishment of law in a legal system. According to Kelsen, ordinary people have nothing to do with the law other than behave in ways that concretize the authorities’ application of sanctions. This is an overly one-sided view of the law, which focuses solely on the external, coercive aspect of the law while ignoring the fact that laws may often bind people to act or to refrain from acting in some ways.

Furthermore, Kelsen has been hesitant towards an integral point in Hart’s philosophy that people follow the law out of a sense of obligation, by denying the subjective nature of actions. Kelsen has been completely unaware of this aspect of citizens’ interactions with the law. According to Kelsen’s Pure Theory, legal norms can only exist in a system that is overall effective, and that such a system is made up of a hierarchy of legitimate legal norms.

Efficacy may also refer to the routine and successful implementation of sanctions by authorities, but it has little to do with the legitimacy of the law-making authority. This may mean that someone capable of usurping control in a society would then impose his new power by effectively imposing sanctions, resulting in a ‘legitimate’ reform of the very basic standard. 

This is a troubling aspect of the theory since it seems to legitimize ex-post facto revolutions and power arrogation by making claims of legitimacy based on changes in basic norms. To summarize, identifying the basic standard in every culture is a difficult task due to its presupposed and transcendental existence, which makes it ambiguous. Since the top-most justifiable standard is virtually impossible to define or justify, the validation scheme becomes unverified and ineffective.

This failure demonstrated that the principle that binds Kelsen’s theory together is its weakest component, undermining the entire theory in the process. According to Kelsen, law is a particular technique of social behavior. Kelsen emphasized on the fact that the identity of a State is a legal order and every one of them is primarily governed by law. According to him, the State is nothing but a bundle of certain norms which order compulsion making it coextensive with law. His Pure Theory and the concept of Ought in it with consonance to norms greatly supported the aspects of rights, personality, State and public and private law and because of his suggestions and views on these topics, he suggested the revaluation of the same. 

References

1. https://plato.stanford.edu/entries/plato/
2. https://en.wikipedia.org/wiki/Main_Page
3. https://www.drishtiias.com/
4. https://economictimes.indiatimes.com/

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John Vithayathi, who is currently pursuing his LLM degree from NUALS, Kochi, analyses the role of unwritten Constitutional principles in Indian Jurisprudence, vis-à-vis the Canadian Position.

Introduction

The Canadian Supreme Court passed a historic yet highly controversial judgement [Toronto (City) v. Ontario (Attorney General), 2021 S.C.C. 34 (Can)] recently.

“Unwritten Constitutional Principles cannot be used as a device for invalidating legislation, that does not otherwise infringe the written constitutional provisions.”

Supreme Court of Canada in Toronto (City) v. Ontario (Attorney General)

Paradoxical as it may seem, this very same judgement that negates the value of unwritten constitutional principles also opens up an avenue for contemplating the nature and, more importantly, the function performed by such principles in the modern constitutional setup. This blog seeks to evaluate the status of unwritten constitutional principles in the Indian constitutional jurisprudence and explains how they might, quite ironically, be more deeply entrenched in the Constitution than a few written ones.

A Dichotomy of Opinions

A constitution bench of the Canadian Supreme Court was considering the validity of a provincial legislation that redrew ward boundaries and reduced the number of wards while campaigns were underway for municipal elections in the city of Toronto. The question before the court was whether the legislation could be struck down if found contravening an unwritten constitutional principle such as democracy. 

The majority bench answered the question in the negative, thereby effectively relegating unwritten constitutional principles to merely interpretative tools ‘that may aid in the purposive interpretation of the expressly mentioned provisions.’ The majority gave a very interesting justification for its decision by opining that a legislation that does not infringe the express provisions of the Constitution cannot be considered as being repugnant to the basic constitutional structure. 

In an equally vociferous albeit minority opinion, Justice R.S. Abella endorsed the ‘full legal force’ of unwritten constitutional principles as ’a substantive limitation on all branches of government’, characterising them as ‘the lifeblood of the Constitution’ and ‘the Constitution’s most basic normative commitments from which specific textual provisions derive.’

How then is this judgement, which advances a dichotomy of opinions on the legal force of unwritten principles, relevant to the Indian Constitutional jurisprudence?

The Hydra heads of Unwritten Constitutional Principles – Examining the Indian Jurisprudence

India holds unwritten constitutional principles on a relatively high and unscalable pedestal, courtesy mainly of the thirteen-bench decision in Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225, which recognised certain unwritten principles as constituting the basic structure of the Constitution and pursuantly inviolable. However, the Kesavananda Bharati decision only pertains to one kind of unwritten constitutional principles. Interestingly, the unwritten principles as such may be categorised into two.

The first category consists of principles such as Rule of Law, Separation of Powers, Federalism, Secularism, Democracy etc. which are not directly attributable to any single constitutional provision but are instead accepted as pervading the very spirit of the Constitution (M. Nagaraj and Ors. v. Union of India, (2006) 8 S.C.C. 212). In so far as their legal force is concerned, the Supreme Court of India has, in a plethora of judgements, adjudged statutes violating the basic structure to be null and void. For instance, in Supreme Court Advocates-on-Record-Association v. Union of India, (2016) 5 S.C.C. 1, the Constitution (Ninety-ninth Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 were declared as unconstitutional and void.

In the decision in Madras Bar Association v. Union of India, (2014) 10 S.C.C. 1, certain provisions of the National Tax Tribunal Act, 2005 were declared unconstitutional for violating ‘Independence of Judiciary’, which is a basic structure. More remarkably, in I.R. Coelho v. State of Tamil Nadu, (2007) 2 S.C.C. 1, the court expressly held that the statutes inserted into the Ninth Schedule of the Constitution would be invalid only if they violate those autocatalytic fundamental rights whose violation would consequently result in the violation of the basic structure. This decision rendered certain fundamental rights as part of the basic structure, and in a matchless irony, categorized the basic structure doctrines as more fundamental than few of the constitutionally mandated fundamental rights.

Adding to this Paean of Praise regarding India’s Constitutional versatility is the second set of unwritten constitutional principles. These principles, such as Right to Privacy, doctrine of manifest arbitrariness, doctrine of pith and substance, doctrine of eclipse etc., emanate from specific constitutional provisions by way of judicial extrapolation. For instance, right to privacy is a facet under Article 21 (Justice K.S. Puttaswamy v. Union of India, (2017) 10 S.C.C. 1), doctrine of manifest arbitrariness falls squarely within the ambit of Article 14 (Shayara Bano v. Union of India, (2017) 9 S.C.C. 1), doctrine of pith and substance finds its source in Article 246 and so on and so forth.

Such a boundless number of unwritten principles and their rather gracious application by the Indian Judiciary, not saying the discretion and power to create new ones, makes it inconceivable that they would meet the fate as in Canada. It may thus be predicted, even without appreciable prescience, that it is impossible to alienate unwritten constitutional principles from Indian constitutional discourse and judicial review.

The Silent Guardian

 Empowered under the aegis of Article 142 of the Constitution of India to do complete justice in any matter pending before it, the Supreme Court of India has very often relied on unwritten constitutional principles when the express provisions found themselves limited to the constraints of expression. These silent guardians, the unwritten principles, have accordingly been used rather emphatically to gag and bind unconstitutional governance.

For instance, in Madras Bar Association v. Union of India, 2021 (377) ELT 305 (S.C.), the Supreme Court struck down certain provisions of the Tribunal Reforms Ordinance, 2021 (which was promulgated under the powers vested by Article 323-B of the Constitution) for violating the principles of Separation of Powers and Independence of Judiciary.

Similarly, in Supreme Court Advocates-on-Record-Association v. Union of India, (2016) 5 S.C.C. 1,  the much controversial National Judicial Appointments Commission was primarily attacked ultimately declared unconstitutional for violating the principle of Independence of Judiciary. Likewise, in Indira Nehru Gandhi v. Raj Narain, 1975 (Supp) S.C.C. 1, Article 329-A (4), inserted by the 39th Constitutional Amendment Act, was found violative of the principles of Democratic Character of the Polity, Rule of Law and Separation of Powers.

The Article barred Judicial Review on the election of the Prime Minister by stating that if such election is declared void by any Court, the Court order and ratio to that effect will be void ab initio, and the election would be valid in all respects

Even though not expressly mentioned, unwritten constitutional principles are as embedded into the Indian Constitutional framework as the constitutional text. Moreover, as corroborated by the aforementioned decisions, they are critical in promoting constitutional governance and supplementing the express provisions whenever called upon to do so.

Conclusion

Unwritten Constitutional Principles have occupied an indispensable position in the current Indian constitutional jurisprudence and have acted as a watchful protector of the Constitution’s basic features. Thus, if the express constitutional provisions epitomise the body of the Constitution, the unwritten principles represent heart and soul that grant it contemporary relevance and continued existence.

In effect, the unwritten constitutional principles accord great powers to the Judiciary in terms of judicial review of state action for safeguarding the constitutional principles and rights. However, with great power comes great responsibility, and therefore it is incumbent upon the Judiciary to exercise self-restraint while applying such unwritten principles. The flexible character of these principles should never be exploited, for such an indiscretion would not bode well for the principle of ‘separation of powers’, which the Judiciary itself has recognized as a basic structure of the Constitution of India.   

Views of the author are personal.

Edited by – Medha Mukherjee

The post UNWRITTEN CONSTITUTIONAL PRINCIPLES – THE UNSUNG HEROES appeared first on LexForti .

Keywords: Judicial Review, Constitutionality of Law, Re-modification of Laws, etc.

FACTS

There were multiple Petitions which were filed at Madras High Court. These Petitions were filed under Article 226 of the Constitution. These Petitions challenged the validity of Rule 29(4) of The Copyright Rules 2013 (hereinafter referred as Rule).

Now the Division Bench of the Madras High Court passed an interim order on 2^nd August 2021. The said order was appealed before the Supreme Court of India

What did the Division bench directed; which was appealed?

1. To not broadcast the copyrighted work without issuing a prior notice under Rule 29;
2. Information like duration, time slots and the like; including the quantum of Royalty payable maybe furnished within 15 days of the broadcast;
3. Compliance be affected with a modified regime of post facto, as opposed to prior compliance mandated by Rule 29(4).
4. The Statutory mandate of a 24-hour prior notice shall be substituted by a provision for compliance within 15 days after the broadcast; and
5. The said interim order has limited scope toward the Petitioners approaching this High Court and 2^nd-3^rd Respondents.

ISSUES

High Court

1. Whether the Rule 29(4) of the Rule violates Article 19(1)(a) of the Constitution?
2. Whether the Rule 29(4) of the Rule ultra vires Section 31D of the Act?

Supreme Court

1. Whether the interim order of the High Court can be sustained?

CONTENTIONS OF PARTIES

Appellant: The interim order of the High Court has the effect of re-writing Rule 29(4) of the Rules which was framed w.r.t Section 31D and 78(2)(cD) of the Copyright Act 1957 (hereinafter referred as “Act”)

There was no challenge to the validity of Section 31D of the Act and still the Rule 29 was reframed keeping Section 31D as the point of perspective.

The scope of the interim order was made for the parties to the proceeding only. It leaves the Pan-India operation in the uncertainty.

Respondent: Appellant haven’t filed any counter affidavits in response to the Petitions.

Appellant: Appellant assured that they will file the counter-affidavit expeditiously; so that the Writ Petitions could be disposed of.

Respondent clarified that while Section 31D states about the notice; it does not specify about the conditions to incorporate the minute details.

Section 31D was brought keeping the interest of the broadcasters; by the Parliament. Rule 29(4) defeats the object of Section 31D as it incorporates the need of prescribing the minute details.

DECISION AND FINDINGS

Supreme Court acknowledged that the Petitioners were represented before the High Court, on caveat; and afterward, disposed the said appeal for the said reason.

Court said that the said batch of Petitions are yet to be disposed; i.e., will be getting disposed on 4^th October 2021.

The Court in order to dispose the present appeal decided to briefly look into the facts.

The Court recognized that Section 31D was brought up by the Copyright Amendment Act 2021. Section 31D(1) stated that, the Broadcasting organization which desires to communicate the public regarding any published literary/musical/sound recording may do it after complying with the said Section.

The Court then proceeded with the five requirements:

1. A prior notice
2. In the manner prescribed
3. The Intent to broadcast the work
4. Duration and territorial scope of the broadcast
5. Payment to the owner of the work

There were applications which were filed before IPAB (Intellectual Property Appellate Board). These applications were regarding determination of rates; The rates for the purpose of statutory licensing under Section 31D (For FM Radios).

On 31^st December 2020, the IPAB determined the rates. These rates would be effective from 1^st October 2020. According to the said Order, the music companies were supposed to pay the arrears of royalty to the music companies on or before 10^th February 2021 for the period of 1 Oct – 31^st Jan.

It directed that; the radio broadcasters have to comply with the Rule 29 of the Rules to obtain the statutory license from the public license from music companies by giving advance notice to the owner of the copyright along with an advance payment. Now, there were more directions which were passed by the IPAB; accessible from here.

Now these directions by the IPAB were challenged by the Copyright owners. There are pending suits before the Delhi and Bombay High Court.

The High Court while examining the issues, observed that the Rules of disclosing information are indeed claustrophobic and need to be modified.

The rule was re-fashioned and time-limit of disclosing the details was kept ‘within 15 days’ of the broadcast.

Court denied to give any opinion on the Constitutionality of the Rules; as the matter were still pending before the High Court of Madras.

Court sticked to the issue. Court referred the case of In Re: Expeditious Trial of Cases under Section 138 of the NI Act, 1881 and emphasized that the Judiciary cannot transgress into the domain of the Policy making by re-writing the Statute.

Court also referred the case of Padma Sundara Rao v. State of Tamil Nadu, where it was held that, if the language of the statute is clear and precise, then there is no need to read the words of such law into the statute.

Final Finding

Court was of the view that the High Court’s act of re-drafting Rule 29(4) was unwarranted, particularly at the interlocutory stage.

High Court’s ruling to enlarge the period of 15 days was also impermissible, since it would substitute a statutory rule made in exercise of the power of delegated legislation.

Court allowed the appeal.

CONCLUSION

Madras High Court tried to re-interpret the language of the rule during the inter-locutory stage. While the matter regarding the Constitutionality was still pending; the court before disposing the matter, remodified the rules. Supreme Court reclarified after citing past cases, that; Courts are not allowed to transgress into the rule making process. Court has the power to Judicial Review. Court shall not go outside the said purview.

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Introduction

To “sit or stand” at the time when the national anthem is being played in a cinema hall has become a debatable subject in India. People who were being allegedly asked to leave the cinema hall when they refused to stand for the national anthem or worse, people have been humiliated and beaten. Post and videos like these have gone viral before. In another more recent case, a complaint was launched against actor Amitabh Bachchan for singing the national anthem for 1 min 22 sec instead of the 52 seconds as prescribed by our law. These two incidents are not completely similar. The first incident shows the lack of awareness in complying with the sacred duty to stand for the national anthem while in the other incident shows negligence.

This research paper also focuses on the directions of the Supreme Court in Shyam Narayan Chouksey v. Union of India that all the cinema halls in India shall play the national anthem before the movie starts and all present in the hall are compelled/obliged (mandatory) to stand up to show respect to the national anthem as a part of their “sacred obligation”. This would instil the feeling of unity and committed patriotism and nationalism; 

Section 3 of the prevention of insult to national honour Act, 1971 says “Whoever purposely prevents the singing of the national anthem or causes disruptions to any assembly engaged in such singing shall be penalized with imprisonment for a term, which may extend to three years, or with fine, or with both.”; however, the guidelines are silent on “if people don’t stand”

Some people also feel it is a violation of their right to freedom of speech and expression. So, the objective of this research paper is to discuss the constitutionality of this decision.

“Patriotism cannot be our final spiritual shelter;

My refuge is humanity.

I will not buy glass for the price of diamonds, and I will never allow patriotism to triumph over humanity as long as I live. – Rabindranath Tagore

What Is the National Anthem?

A National Anthem (also the national song, national hymn, etc.) is commonly a patriotic musical composition that reminds and eulogizes the history, traditions, and struggles of its people, recognized either by a nation’s government as the official national song or by convention through use by the people. The custom of an officially adopted national anthem became popular in the 19th century in Europe. 

A national anthem is mostly of a country’s local language or national language or most common language.

With words by one of the world’s most prominent writers, Jana Gana Mana is in a better class of national anthem. National anthem and flag are seen as a symbol of patriotism and a wide array of contexts. Most common examples are of nationwide important days such as independence day of a country or the starting of an event or winning of a medal in a sports event.

A national anthem, both when in or outside our country induces a feeling of belongingness towards our motherland and we bow down with respect for our country.

There are certain etiquettes needed to be followed while hoisting the flag or singing the national anthem(India) :-

• One must always stand in an upright manner and at attention position while the anthem is playing.
• Renditions of the anthem-other than those that resemble the original-are considered disrespectful.
• One must not be under the influence of any substance or intoxicated while singing the anthem.
• There should not be any indiscriminate singing of the anthem.
• If the National Anthem is played by a band, it is preceded by a roll of drums–which is about 7 seconds long- to make the audience aware of it, and provide them enough time to stand in respect.
• There are times when a shortened version of the anthem that comprises only the first and the last stanza. This version lasts about 20 seconds and is generally played in army messes before toasts, the official full version of which lasts 52 seconds.

How do Countries Around the World Foster Respect for their National Anthem?

In some Western countries, such as Britain and Australia, protocols state how one should behave when the national anthem is played. But they are not laws. In the United States, the rules are outlined in a code on patriotic customs. Asian countries including Singapore and Malaysia have their own specific national anthem law.

In Thailand, the national anthem is played every day on TV and in public places such as parks, schools, and offices at 8 am and 6 pm. Thais can, therefore, be arrested for not standing while the royal anthem plays, but there is no official penalty for the act alone.

In the more recent news, Hong Kong’s legislature was pushing forward on a controversial bill that would criminalise “abuse” of China’s national anthem.

How should one act when the National Anthem is played?

In most countries, people are required to stand as a mark of respect. The US code includes a list of etiquette. During the singing of the national anthem and when the flag is displayed, all present should face the flag and stand at attention with their right hand over the heart. When the flag is not displayed, people should face the music and conduct themselves as if the flag was there. In Singapore and Malaysia, national anthem laws also require people to stand at attention.

What are the Penalties for non-compliance?

In Britain and Australia, there are only protocols for how one should act during the national anthem. Even the USA does not prescribe any penalties for non-compliance.

Stricter regulations, meanwhile, are seen in some Asian countries. In Singapore, non-compliance could lead to a fine. In Malaysia, a policeman can arrest without a warrant any person offending in his sight, and those knowingly showing disrespect towards the anthem in a public place are subject to a fine or a jail term not exceeding one month.

Japan’s national flag and anthem, Kimigayo, and guidelines for them were only established in 1999. The playing of the anthem and displaying of the flag were made mandatory in many Tokyo school ceremonies in 2004 by then-governor.

Germany has no national anthem law, but rules exist to punish “defamation of the state and its symbols”, including the anthem.

Measures By The Indian Government to Prevent Disregard of National Anthem

1. The Prevention of Insults to National Honour Act, 1971 is an Act of the Parliament of India which prohibits the defamation or insult to the country’s national symbols, including the National Flag, Emblem the constitution, the National Anthem and map of India including contempt of Indian constitution.

As per stated by the act:

“Whoever intentionally prevents the singing of the national anthem or causes disruption to any gathering engaged in such singing shall be punished with imprisonment for a term, which may extend to three years, or with fine, or with both.”

The Law puts enhanced penalty in the above case, as classified under Section 3A for disregard of National Flag, Constitution, National Anthem, as offences and convicts the Penalties or sentences as follows. “Whoever having already been convicted of an offence under section 2 or section 3 is again convicted of any such offence shall be punishable for the second and for every subsequent offence, with imprisonment for a term, which shall not be less than one year.”

2. Article 51A of the Indian Constitution talks about Fundamental duties. These duties were added by the 42nd Amendment of the constitution of India in 1976.

As per the law, Article 51A.  Fundamental Duties: –

“It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;”

3. The Flag Code of India,2002 is a collection of laws, practices and conventions that apply to the display of the national flag of India.
4. “Orders Relating to the National Anthem of India”, by Ministry of Home Affairs 

Like: 

The occasions when the full or short anthem can be sung and the manner in which flag hoisting is to be done.

“Whenever the Anthem is sung or played, the audience shall stand to attention. However, when in the course of a newsreel or documentary the Anthem is played as a part of the film, it is not expected of the audience to stand as standing is bound to interrupt the exhibition of the film and would create disorder and confusion rather than add to the dignity of the Anthem.”

Fundamental Duties

The fundamental duties were added by the 42^nd amendment of the Constitution in 1976. Such duties are generally not found in the constitution based on western societies. They are invariably found in the socialist (china) constitutions but they are also found in the non-socialist constitutions (Sri Lanka). Thus the Asian and African societies give greater emphasis to the duties than the western societies.

Before the inclusion of fundamental duties, P.V. Kane was critical of the Constitution that it ignored the Indian tradition of duties and spoke only of rights. Reference to duties, however, finds position even in the International instruments such as the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights. Embodiment of duties in the Constitution is not found necessary because they can always be imposed by the state in the absence of or in accordance with fundamental rights.

Their incorporation, however, remains that the Constitution presents an integrated scheme of which the fundamental or any other constitutional rights are only a part.

The scheme must be seen as one in which Constitution envisages in responsible citizens and in that sense the fundamental duties shall be performed and seen as an educative role.

They also have legal value in the sense that any law which implements fundamental duties cannot be invalid on the ground of conflict with fundamental rights unless such conflicts are irreconcilable. The rights must be reconciled with the duties. ‘Wherever there are rights, there are certain duties.’

Article 51 A – Fundamental Duties – It shall be the duty of every citizen of India-

(a) To abide by the constitution and respect its ideal and institutions, the national flag and national anthem.
(b) To cherish and follow the noble ideals which inspired our national struggle for freedom.
(c) To uphold and protect the sovereignty, unity and integrity of India

“Duties in one citizen implies rights in another citizen.”

They only provide a moral and ethical basis for the behaviour of citizens, but cannot be enforced through judicial pronouncements.

Relations Between Fundamental Rights and Duties

Enunciating the relationship between Parts III, IV and IV-A the court has observed in Naveen Jindal v/s UOI

“Fundamental duties, as defined in Article 51-A, are not made enforceable by a writ of court just as the fundamental rights are, but it cannot be lost sight of that ‘duties’ in Part IV-A Article 51-A are prefixed by the same word ‘fundamental’ which was prefixed by the Founding Fathers of the Constitution to ‘rights’ in Part III…. The State is all the citizens placed together and hence though Article 51-A does not expressly cast any fundamental duty on the State, the fact remains that the duty of every citizen of India is the collective duty of the State….Constitutional enactment of fundamental duties, if it has to have any meaning, must be used by courts as a tool to tab, even a taboo, on State action drifting away from constitutional values.”

And again stating in Ramlila Maidan incident 

“A common thread runs through Parts III, IV and IV-A of the Constitution; on One Part enumerates the fundamental rights, the second declares the fundamental principles of governance and the third lays down the fundamental duties of the citizens. While interpreting any of these provisions, it shall always advisable to examine the scope and impact of such interpretation on all the three constitutional aspects emerging from these Parts.”

This position has been repeated and applied in subsequent cases like Charu Khurana v/s UOI

It may be said that the duties are not self-executing. The State must make laws for its implementation. In the absence of such laws, for example, mandamus cannot be sought against an individual who does not observe his duties under this article. But in appropriate cases, as in Vishaka v. State of Rajasthan , if non-observance of duty by one citizen can be established as violation of the right of another, appropriate remedy may be provided by the courts. Concerning the duty under clause (a) of this article, it has been held that “proper respect is shown to the National Anthem by standing up when the National Anthem is sung. It will not be right to say that disrespect is shown by not joining in the singing”.

 Similarly flying of National Flag unconstructively with honour and dignity is consistent with the duty in clause (a), like in UOI V/s Naveen Jindal.

The Supreme Court upheld a judgment insisting that the Indian Constitution and in particular the fundamental right to freedom of expression, protected the right to fly the national flag. Naveen Jindal, a director of a factory, filed a petition after he was told that he was not permitted to fly the national flag according to the Flag Code of India. The Court reasoned that the right to fly the flag can be considered as an expression of an individual’s allegiance and pride for their nation. However, the Court did note that this right can be subject to certain reasonable statutory restrictions.

Clash of Religious beliefs

Bijoe Emmanuel & Ors vs State of Kerala & Ors

Background

Three students namely Bijoe, Binu and Bindu, studying in a school near Kottayam, were expelled from school after they refused to sing the national anthem of India. Their father had asked them not to salute the flag or sing the anthem because it was against their religious faith in Jehovah’s Witnesses. Through their representative, they filed a writ petition in the High Court of Kerala, seeking to restrain authorities from preventing their school attendance. 

Arguments Advanced

The petitioners argued that even if they do not sing the Anthem, they do stand up on such occasions to show their respect to the National Anthem. They desisted from actual singing only because of their honest belief and conviction that their religion did not permit them to join any rituals except it be in their prayers to Jehovah their God.  They further submitted that they truly and conscientiously believe what they said was not in doubt. They did not hold their beliefs idly and their conduct was not the outcome of any perversity. They emphasized that singing the anthem was idolatry and an act of unfaithfulness to their God. 

They alleged that their expulsion amounted to an infringement of their fundamental rights to freedom expression under Article 19 and freedom of religion under Article 25 (freedom of conscience) of the Constitution of India. The High Court dismissed the petition on the ground that no word or thought in the national anthem could offend any religious beliefs.

Judgement

Subsequently, they appealed the decision to the Supreme Court of India. The Court found their expulsion in violation of both Articles 19 and 25 of the Constitution.

This case is profoundly significant because it affirms that no one can be legally compelled to violate his conscientiously held religious beliefs. While recognizing that fundamental rights are not absolute and are subject to public order, morality, and health, the Supreme Court limited the State’s ability to impose on its citizens arbitrary and disproportionate restrictions. The decision stated: “To compel each and every pupil to join in the singing of the National Anthem despite his genuine, conscientious religious objection would clearly contravene the rights guaranteed by Art. 19(1)(a) and Art. 25(1).”

The ruling also safeguards constitutional freedoms for minority groups. The Court further stated: “The real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution.” Justice Reddy added: “Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Art. 25.”

Even today, Bijoe Emmanuel v. State of Kerala stands as one of the pillars of free speech in India. Jehovah’s Witnesses are happy to have had a part in contributing to the constitutional freedoms of all citizens in India. 

Similar view was expressed in their judgment given by US Supreme Court in case of  West Virginia State Board of Education V. Barnette in 1943. The US Supreme Court delivered a 6-3 opinion, holding that the free speech clause of the First Amendment to the US Constitution protected student from being forced to salute the American Flag.

Patriotic test

As recent as on 11th May 2019, it was reported that a man from Bangalore was arrested by the police on charges of dishonouring the nation as he refused to stand up for the national anthem that was played before the movie in the cinema hall and was later released on bail. There is also a contradictory story reported which said that the charges on this man were dropped and the paper claimed that the supreme court had, post the Shyam Narayan Chouksey case, given another order stating that standing during the national anthem was not mandatory. Therefore, it is uncertain as to what is the present status of the law.

The petitioner put forward these questions to understand the difference between respect and disrespect of National Anthem. The court examined the case and made observations for paying due respect to National Anthem and National Flag of our country.

Let’s look deeper into the cinema hall case: –

Shyam Narayan Chouksey v. Union of India

Background

In this case, the Public Interest Litigation was filed by Bhopal based activist on 24th July 2003. Mr. Shyam Narayan Chouksey had gone to watch the film “Kabhi Khushi Kabhi Gham” in the year 2003. When the national anthem was played in the movie, he stood up respectfully but he was the only person, who stood up. Those behind him said he was obstructing their view, instead of standing up. They asked him to sit down. He got offended by this experience as also the “commercial use of the national anthem” in the film. Mr. Chouksey filed a PIL in Madhya Pradesh High Court in Jabalpur. A division bench agreed with his contention and banned the screening of the film across India.

Judgement

This order was later stayed. Supreme Court (Coram of Hon’ble Justice Dipak Misra and Amitava Roy) gave the following directions on 30/6/2016 to be scrupulously followed:

1. There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the national anthem should not be utilized by which the persons involved in it either directly or indirectly shall have any commercial benefit or any other benefit.
2. There shall not be dramatization of the national anthem, and it should not be included as a part of any variety show. It is because when the national anthem is sung or played it is imperative on the part of everyone present to show due respect and honor. To think of a dramatized exhibition of the national anthem is inconceivable.
3.  National anthem or a part of it shall not be printed on any object and never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the national anthem is sung, the concept of protocol associated with it has its inherent roots in national identity, national integrity and constitutional patriotism.
4.  All the cinema halls in India shall play the national anthem before the feature film starts and all present are obliged to stand up to show respect to the national anthem.
5. Prior to the national anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the national anthem. After the national anthem is played or sung, the door can be opened.
6. When the national anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.
7. The abridged version of the national anthem made by one for whatever reason shall not be played or displayed.

Hon’ble Supreme Court has further stated that it is the sacred obligation of every citizen to abide by the ideals engrafted in the constitution. And one such ideal is to show respect for the national anthem and National Flag. The citizens of this country must realize that they live in a nation and duty-bound to show respect to national anthem which is the symbol of the constitutional patriotism and inherent national equality.

Further, an Inter-Ministerial Committee had formed by an order/notification dated 5th December 2017. The Committee has been given the responsibility to make recommendations for regulating the playing/singing of the National Anthem and to suggest changes in the 1971 Act or in the Orders relating to the National Anthem of India.

In view of the aforesaid, court disposed of the writ petition with the following directions:

1. The Committee appointed by the Union government shall submit its recommendations to the competent authority in terms of the Notification dated 5th December, 2017, for follow up action.
2. The order passed on 30th November, 2016, which made the playing of the national anthem prior to the screening of feature films in cinema halls mandatory has been modified to the extent of being optional or directory.
3. The Committee constituted by the Union government to look into all aspects of the matter shall make its recommendations uninfluenced by the interim directions of this Court, as clarified in our order dated 23rd October, 2017.
4. The executive orders relating to the National Anthem of India and the prevailing law bind the citizens or persons to show respect whenever it is played or sung on any specified occasions.
5. Disabled persons shall remain to be exempted till the final decision of the competent authority.

The case is important in the history of India as it inculcates a proper sense of paying respect to the National Anthem. It is the national symbol representing the nation along with the national flag and the constitution of India. These symbols are the pride of the nation and any disrespect towards them becomes a matter of grave concern for any nation. Respect towards national symbols is the very basic duty of every person as a citizen of India under Article 51 (A) and promotes a sense of unity, oneness and nationalism among the public.

(En)Forced Patriotism

Equating Nationalism with Patriotism is the root-cause of all the problems. Though both Nationalism and patriotism show the relationship of an individual towards his or her nation, there is a vast difference between them. While Nationalism means to give more importance to unity by way of a cultural background, including language and heritage, patriotism pertains to the love for a nation, with more emphasis on values and beliefs.

Many Indians have this question which needs to be answered by the law and the legal authorities whether it is compulsory to stand up for the national anthem. According to several renowned personalities across the globe, it gives a sense of pride and there is nothing wrong in promoting respect for the national anthem of one’s country.

The Chauksey case judgment, although in utmost good faith, tried to instil a sense of patriotism and nationalism by invoking the responsibilities stated in Article 51A, does put the common man in a tough spot. Bypassing an order that made it mandatory for all patrons viewing a movie to stand while the national anthem is played, in essence, does place a restriction on the freedom of expression of the people.

The orders were issued with an aim to ‘impart a feeling of patriotism’ and that individuals were ‘compelled by a sense of honour to demonstrate regard to National Anthem as an image of Constitutional Patriotism’ as an obligation.

Gestures and acts like saluting the tri-colour flag, singing songs and reciting poems like Jana Gana Mana and Vandemataram and raising slogans like Inquilab Zindabad against the brutality of the ruling class played a key role in mass mobilization during the struggle for independence against the British. Even in post-independent India, the importance of such sloganeering has never been undermined and show of respect towards national symbols continued, especially during important occasions like independence day and republic day.

However, in recent times, a debate has been raging over – How important is it to display one’s respect towards national symbols, not voluntarily, but due to external enforcement by the legitimate State institutions – including the Judiciary- and non-State academic institutions.

Arguments in favour of enforced patriotism

1. Collective expression of sentiments play a positive and important role in achieving social and political cohesiveness. 
2. India is a land of diversity. Due to the vast diversities in terms of language, topography, religion, ethnicity, the Indian State is always under threat from divisive and separatist tendencies. Hence, the enforced patriotic acts in necessary proportions are important for the political enjoinment of the culturally diverse Indian society.
3. To inculcate the feeling of patriotism in today’s youth, who are the majority populace, are not aware of the great sacrifices made by the freedom fighters in achieving independence 70 years ago. 
4. Citizens should realize that there is no protection for individual rights without a State. The citizens must forego a part of their freedom and liberty and should show and display the respect towards national symbols in a collective environment.

Arguments against enforced patriotism

1. As per the Article 19(1)(a), all citizens shall have the right to freedom of speech and expression, the apex court has pronounced in various cases, that the freedom of expression includes the freedom of non-expression also. Hence, the enforced acts of patriotism are opposing to the democratic spirit of the constitution itself.

2. Nationalism without liberalism is a monster. Moreover, there are high chances that patriotic feelings and respect towards national symbols and institutions are strengthened, not when they are kept reserved, but when they are in reach and accessible to the common man. 
3. Legally speaking, the fundamental duties prescribed in the Part IVA of the Constitution are not enforceable by the judicial pronouncements alone. 

Conclusion

Fundamentally, a patriot expresses the emotion of love towards his country in a passive way, while a nationalist expresses his love or concern for the country in an active political way.

Several countries have adopted their own way of inculcating the sense of patriotic in its citizens; in countries like China, Thailand and Colombia, national anthem is played on the national radio and T.V twice every day, but in both these cases we can see that China being a non-democratic state can force it over its citizens meanwhile Colombia being a comparatively a very small country with most of its citizen belonging to a common cultural background people.

Patriotism towards the nation is a sentiment. Hence, different people have different ways of expressing it. Moreover, some people find it unreasonable to express patriotic sentiments in a recreational space (like cinema halls) and cradles of liberty and free speech like universities.

Asking the law-abiding citizens to prove their patriotism by performing certain acts stifles the democratic spirit of our political setup. This reasoning was agreed upon even by the Supreme Court of the USA, which acts as a torchbearer to the democratic spirit in the modern world and the judgements of which still guide the Indian apex judiciary.

Rights and duties are two faces of the same coin. If we are aware of our fundamental rights we must follow the duties given under Article 51-A which spread national unity, integrity and brotherhood in one another. Every citizen has to remember one thing that he owes the duties to state; if he does not care for duties he does not deserve rights.

Every citizen is expected to monitor his own code of conduct in democratic life, in these circumstances, if somebody is not ready to stand for national anthem other people should not create any type of law and order situation in the name of nationalism. We must remember that our constitution promotes peace, harmony and tolerance.

India is an excellent example of “Unity in Diversity”National integration is not built with brick and mortar. It has to grow silently in the minds and hearts of citizens.

References

Primary sources (Bare Acts)

• The Prevention of Insults to National Honour Act, 1971
• The Flag Code of India,2002
• Orders Relating to the National Anthem of India, by Ministry of Home Affairs 
• The Constitution of India, 103^rd Amendment

Secondary sources

• V.N. Shukla, Constitution of India, Eastern Book Company,2018, 13^th edition, pg no. 392-395
• M.P. Jain – Indian Constitutional Law, Lexis Nexis, 8^th edition, 2019
• J.N. Pandey, Constitution of India, Central law agency, 56^th edition, 2019, pg no.507

Web sources

• https://www.youtube.com/watch?v=GDnVUP4EMzw
• https://blog.ipleaders.in/national-anthem-shyam-narayan-chouksey-case/
• http://lawtimesjournal.in/shyam-narayan-chouksey-vs-union-of-india-ors/
• http://www.legalservicesindia.com/article/2271/Debate-over-Sitting-or-Standing-at-Cinema-Hall-Whether-Violation-of-Right-to-freedom-of-Speech-and-Expression.html
• https://www.lawordo.com/shyam-narayan-chouksey-vs-union-of-india/
• http://lawtimesjournal.in/bijoe-emmanuel-ors-vs-state-of-kerala-ors/
• https://www.speakingtree.in/allslides/do-you-know-these-rules-about-our-national-anthem/assisted-by-someone
• https://www.news18.com/news/india/a-look-at-regulations-on-singing-playing-of-national-anthem-on-various-occasions-1317769.html
• https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/Amitabh-Bachchan-National-Anthem-case-Arjun-Mathur-says-complainant-needs-a-10-finger-slap/articleshow/51511471.cms
• https://mha.gov.in/sites/default/files/NationalAnthem%28E%29_2.pdf
• https://www.legalbites.in/tags/forced-nationalism/
• https://www.scmp.com/news/hong-kong/politics/article/2118933/explainer-how-do-countries-around-world-foster-respect-their

The post Legal Tussle Regarding National Anthem- In The Indian Scenario: With Special Reference to Religious Beliefs & Patriotism appeared first on LexForti .

The present article discusses in detail Article 12 of the Indian Constitution, which defines ‘State’. The definition of State provided under Article 12 is inclusive but not exhaustive and there are certain authorities and instrumentalities that though not clearly mentioned under the said article, can be brought within the purview of the definition of State.

The fundamental rights guaranteed by the Indian Constitution have been laid down in Part III of the constitution, starting from Article 12 to Article 35.

The first article under Part III is Article 12, which does not guarantee any right but specifies the authorities and the bodies, that are deemed to be “state” and against whom the fundamental rights can be enforced.

Article 12 states that the Central Government, the Parliament, State Government and State Legislatures come within the definition of “state”. Apart from these, certain local authorities and other authorities are also said to be “state”. The apex court of the country through its various landmark judgments has laid down the tests for determining whether a body would fall within the meaning of the term local authorities and other authorities and hence would be considered “state” or not. It has also been laid down that judiciary in the exercise of its administrative functions can come under the definition of “state” but not in the exercise of its judicial function. All of these are discussed below in detail.

Definition

Article 12 states “In this Part, unless the context otherwise requires, “the state” includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

The authorities that are expressly included within the definition of Article 12 are as follows:

1. Government and Parliament of India;
2. Government and Legislature of each of the States;

These legislative and executive wings of the Union and the States are expressly and specifically mentioned in the concerned article. However, the other two categories i.e., “local authorities” and “other authorities” are not quite specific. The bodies that come under these two categories have been analyzed by the Supreme Court through its various judgments.

Local Authorities

The expression “local authorities” usually refers to authorities such as municipalities, District Boards, Panchayats, mining settlement boards etc. Any body functioning under the state; owned; controlled and managed by the “state” and carrying out a public function is a local authority and comes within the definition of state.

The Supreme Court in the case of Union of India v. R.C. Jain laid down the test for determining which bodies would be considered as local authority under the definition of state enshrined under Article 12 of the constitution. The issue in this case broadly was ‘Whether Delhi Development Authority (DDA) is a local authority or not?’ The Court held that if an authority:

1. Has a separate legal existence
2. Functions in a defined area
3. Has the power to raise funds on its own
4. Enjoys autonomy i.e., self rule and
5. Is entrusted by statute with functions which are usually entrusted to municipalities, then such authorities would come under ‘local authorities’ and hence would be ‘state’ under Article 12 of the Constitution.

Other Authorities

The term ‘other authorities’ under Article 12 encompasses those authorities that do not fall within the first three categories. ‘Other Authorities’ though not defined in the constitution has been widely interpreted through various judgments and now includes a number of authorities under it.

The Supreme Court in the case of Rajasthan Electricity Board v. Mohan Lal laid down the conclusive test for determining the bodies that would come under the ambit of ‘other authorities’. The court held that if an authority

1. has power to issue directions and any offence against them is punishable by law
2. has power to make rules that would have statutory effect
3. is an agency or instrumentality of state for carrying out trade or business which otherwise would have been carried out by the sate departments, the such authorities would come within the purview of ‘other authorities’ and hence would be considered ‘state’.

In the case of Sukhdev Singh v. Bhagatram, the question before the court was ‘whether ONGC (Oil and Natural Gas Corporation), LIC (Life Insurance Corporation of India) and IFC (International Finance Corporation) created by statutes would come under the purview of ‘state’ under Article 12.’ The court in this case followed the test laid down by the court in the case of Rajasthan Elecctricity Board and held these authorities to be ‘state’ as they came within the meaning of ‘other authorities’ under Article 12.

Another case, Sabhajit Tewary v. Union of India was decided by the same bench and on same day on which Sukhdev Singh’s case was decided. The question before the court in this case was whether the Council of Industrial and Scientific Research(CISR), which is registered under Societies Registration Act, 1898 would come within the definition of ‘state’ under Article 12. The Supreme Court observed that a body would be ‘state’ if :

1. It is performing essential state function and
2. It is under the pervasive control of the Government.

The court held CISR not to be ‘state’ as per the above said requirement.

In the case of R.D.Shetty v. The International Airport Authority of India, a similar question was raised before the court that whether International Airport Authority is a state. The court through J.Bhagwati laid down the following test to determine whether a body is included within ‘other authorities’ and comes within the definition of ‘state’ :

1. The financial assistance given by the State and magnitude of such assistance;
2. If any usual or extraordinary assistance is provided by the State’;
3. Nature and extent of control of management and policies of the corporation by the state;
4. The state conferred or state protected monopoly status;
5. The function carried out by the corporation would ascertain whether the body is an instrumentality or agency of the state or not;
6. If one of the body is transferred to the government.

The above said parameters broadly determines whether an authority is ‘other authority’ as per the definition of ‘state’ under Article 12. Considering these tests, International Airport Authority was held to be ‘state’.

Again, in the case of Ajay Hasia v. Khalid Mujib, a similar question arose before the court that whether a college which was established by a registered society would come under the definition of ‘state’ or not. The court in this case approved the tests for determining ‘other authorities’ as laid down in the case of R.D.Shetty. The court further observed that “These tests are not final or conclusive in nature. It must be noted that ‘other authorities’ cannot include every autonomous body which has some connection with the government and that ‘other authorities’ is also subject to certain wise limitations.

The court further held that on considering the factors mentioned in the case of R.D.Shetty, if a corporation is an instrumentality or agency of the government, it must be come  within the meaning of ‘other authority’ and would be ‘state’.

The next case that came before the court on a similar issue was Pradeep Kumar Biswas v. the Indian Institute of Chemical Biology. The question before the court was whether CISR was an instrumentality of state or comes within ‘other authorities’ under Article 12 or not. It was held that there is no strict rule that every registered society having any connection with the government, to be declared as ‘state’. If any of the objective tests laid down in the case of Ajay Hasia is not fulfilled, then the check must be whether the body is functionally, financially and administratively held by the government. If this condition is fulfilled, then also the body would come under ‘other authority’ and hence would be ‘state’ under Article 12.

The case of Pradeep Kumar Biswas acts as precedent for all further cases related to the interpretation of ‘other authorities’.

Further, in the case of Zee Telefilms v. Union of India, when the issue came before the court whether BCCI is a state or not, the court again applied the tests laid down in Ajay Hasia and Pradeep Kumar’s case and held BCCI not a state.

It must be noted that Article 12 of the Constitution does not specifically talk about Judiciary. The answer to the question whether judiciary is a state or not is discussed below in detail.

Whether Judiciary is a state or not?

Judiciary, though an organ of the state, is not specifically mentioned in Article 12, unlike the executive and the legislature. Whether judiciary comes under the definition of ‘state’ or not depends on the type of function carried out by the courts.

In the exercise of non-judicial functions such as administrative or legislative, the courts fall within the definition of ‘state’. However, in the exercise of judicial functions, the courts cannot be brought within the definition of state.

In the case of Naresh Sridhar Mirajkar v. the State of Maharashtra, the issue before the court was whether a judicial order could be in violation of fundamental rights and is such judicial order amenable to writ? The court in this case held that “It is inappropriate to assume that a judicial decision pronounced by a court of competent jurisdiction can affect the fundamental rights of the citizens. What the judicial decisions purports to do is to decide the controversy between the parties brought before the court and nothing more.”

Therefore, judiciary for discharge of its judicial functions cannot come under the definition of ‘state’ and is not amenable to writ.

Further, in A.R.Antulay v. R.S.Naik, the court held that “If incidentally or indirectly, the judicial order of a competent court affects the fundamental rights of a person, then the remedy against such a mistake is not to allege a violation of the fundamental  rights and approach the courts under Article 32 or 226, but to allege that the decision of the court is not consistent with the fundamental rights and approach the appropriate court with such allegations in appeal or review.”

Considering these factors,court held that judiciary in exercise of its judicial functions does not come within the definition of ‘state’ under Article 12.

In the case of Riju Prasad Sarma v. State of Assam, it was held by the Supreme Court that when a court is acting in its judicial capacity, it cannot be considered as ‘state’. However, its administrative action is amenable to writ.

Conclusion

As per the interpretation of Article 12 by the apex court of the country, it can be concluded that Article 12 though inclusive is not exhaustive. Apart from the executive and the legislative organs of the state, it also includes certain authorities, which fulfills the condition of ‘local authorities’ and ‘other authorities’ within the definition of state. The scope of ‘other authorities’ has witnessed drastic change. Judiciary has time and again tried to include more and more bodies within the definition of state so that maximum people can enforce their fundamental rights. Further, it has been held that judiciary in the exercise of its judicial functions is not a state. However, judiciary is state with respect to its administrative functions and writs for enforcement of fundamental rights can be filed if the action of judiciary is in contravention of it.

The post Article 12 of The Constitution of India appeared first on LexForti .

One of the most vital concerns that a legal practitioner is essentially seen to deal with, that is with respect to any particular dispute or one that has arisen out of a legal relationship between the respective parties subsequently brings into consideration the forum which has/will/have the territorial jurisdiction to entertain such a dispute. 

It would be imperative to take into cognizance the concept of jurisdiction which is a conglomeration of two terms, such as juris (meaning “law”) and diction (meaning “to speak”), which can be translated as presuming the appropriate forum that has the potential to “speak the law.” Likewise, the Black Law’s Dictionary has defined the aforementioned term as “a court’s power to decide a case or issue a decree.” In totality, the sole rationale behind introducing such a concept is that each court shall have the liberty to adjudicate and try those matters which tend to fall within the pecuniary or territorial limits of the concerned jurisdiction. The sheer origin of Jurisdiction can be claimed to draw its essence from Public International Law, Constitutional law, the conflict of laws and the powers stipulated in the legislative and executive branches of the government to allocate resources in order to adequately serve the needs of the society. 

AN OVERVIEW OF THE TERRITORIAL JURISDICTION OF CIVIL COURTS IN INDIA

It would be pertinent to take into consideration Section 20 of the Civil Procedure Code, 1908 which postulates that a plaintiff has the full freedom and liberty to file a suit in a particular court of law that is within the local limits of the opponent against whom such a claim voluntarily arises, wherein the latter is employed or is witnessed to carry on his/her business. 

Furthermore, the aforementioned provision also stipulates that the suit may also be filed before the court within the local limits of the opponent, wherein a part or the whole of the cause of action is witnessed to arise. That being brought under one’s attention, the cause of action is in general, considered to be facts in context to the relief, claim(s) brought forth by the plaintiff and also gives the said party an opportunity to bring forth a legal action against the said person. In addition to the same, the Civil Procedure Code, 1908 has also ensured to provide that in circumstances where there is more than one defendant, the concerned suit can be instituted in a particular court within whose jurisdiction, the defendant(s) carries on their business or resides. 

Having mentioned the same, it would also be pertinent to note that in circumstances, where the property is witnessed to be situated within the jurisdiction of more than one court, in such a situation, the plaintiff has the liberty to file the concerned suit in either of the courts falling within the jurisdiction of the parties. 

In the case of A.B.C. Laminart Private Limited v. A.P. Agencies Salem, the Hon’ble Supreme Court postulated that the cause of action can be considered to refer to every fact, which if transversed would make it compulsory for the plaintiff to make a proof of his right with reference to the judgement that is passed by the court. 

AN OVERVIEW OF THE TERRITORIAL JURISDICTION OF CRIMINAL COURTS IN INDIA

Section 177 of the Code of Criminal Procedure, 1973 plays an exemplary role in ensuring that every offence that is committed within the Indian jurisdiction would be tried and ordinarily inquired before the Court after taking into account the local limits of the offence that has been committed. What makes this provision all the more unique is that this law also stipulates that in cases where the offence is witnessed to consist of several acts, that have been committed in various local areas, in such conditions, the case will be tried and inquired before a particular Court that is witnessed to have jurisdiction over such local areas. 

One would also find it necessary to note Section 188 of the Code of Criminal Procedure, 1973 which bestows the power and jurisdiction to Indian Criminal Courts, wherein if the offence is portrayed to be committed outside India by a non-citizen or an Indian Citizen, committed on aircrafts or on ships that have been registered in India, the accused will then be dealt with regard to the said offence, as if the said offence was in actuality, committed within a jurisdiction falling within India, provided that there has been a sanction acquired from the Central Government. In simpler words, while the police does take cognizance of the concerned offence within India, the trial will under no conditions, proceed without the previous sanction acquired from the Central Government as has been postulated in the aforementioned provision.

It would be essential to note the case of Reg c. Benito Lopez, wherein the issue pertaining to jurisdiction was brought into regard with respect to offences that are committed on the high seas by the foreigners or those travelling to England borne ships. This decision led to the highlighting of several principles of International Law, in which it was contended that an individual irrespective of the place where the crime was committed, is liable to be punished of their offences. 

AN OVERVIEW OF THE TERRITORIAL JURISDICTION OF COURTS IN CONTEXT TO MATTERS RELATED TO ARBITRATION

The law under the Indian Arbitration & Conciliation Act, 1996 holds an essential role in defining the concept of a “court” under Section 2(1)(e) wherein the mentioned provision states the very purpose of the Principal Civil Court that functions in a particular district that exercises original civil jurisdiction and is regarded to be competent under the applicable law to exercise jurisdiction in relation to the subject matter of arbitration. In addition to the same, this provision also provides that the Court is inclusive or a High Court of the respective States, but however does not include a particular court that is inferior to a court of Small Causes or a Principal Civil Court. 

This law that has been specified in the Arbitration Act provides that any individual who is aggrieved from a particular arbitration award, or in circumstances where the person wants to challenge the award or in conditions, where it wishes to enforce the award can bring forth an arbitration petition to either the Learned Civil Court or the Hon’ble High Court, in accordance to the stipulated provisions of the Civil Procedure Code, 1908, that has enlisted such rules of original civil jurisdiction. 

Therefore, any particular party with reference to an arbitration agreement can file such an arbitration petition seeking or challenging the enforcement of the arbitration award under the following conditions:

• Either where the defendant carries on business or is seen to reside.
• Where part or whole of the cause of action arises.

If one were to contemplate the essential principles of Arbitration Law, one would ensure to mention the essence of arbitration proceedings which are governed by the Municipal Law of the Seat of Arbitration, in which Section 2(1)(e) is worthy of mention which, as has been elucidated before, has defined the court having jurisdiction pertaining to the “subject matter of arbitration.” The law therefore is witnessed to confer supervisory jurisdiction on the High Court or the Principal Civil Courts within the local limits of arbitration. It would be pertinent to take into cognizance, the case of BALCO v. Kaiser Services, wherein the Apex Court shed light on the aforementioned principle and used the phrase, “subject matter of arbitration.”

AN OVERVIEW OF THE TERRITORIAL JURISDICTION OF COURTS PERTAINING TO WRIT PETITIONS IN INDIA

The sheer nature of a Writ Petition brings into account the enforcement of Fundamental Rights that can be brought forth either before the Supreme Court under Article 32 of the Indian Constitution or the High Court under Article 226 of the Indian Constitution.

Article 226(1) of the Indian Constitution for instance, introspects and postulates that the High Court within whose jurisdiction the government, authority, or the individual is located would have the power of jurisdiction to entertain the said writ petition, directed against the defendant, irrespective of the place pertaining to the cause of action, provided that there was in fact, a cause of action to file the mentioned petition.

Furthermore, Article 226(2) of the Indian Constitution, provides that the High Court within whose local limits or jurisdiction a part or the whole of the cause of action is seen to arise shall have the jurisdiction to pass the required order(s) or direction(s), in order to ensure the enforcement of fundamental rights or any other right with respect to the same.

CONCLUDING REMARKS

In totality, it is highly essential to deliberate and get a critical understanding of the concept of jurisdiction, given a misinterpretation of the relevant provisions can culminate to costs and a time-consuming procedure in matters of litigation. Furthermore, it would be imperative to note that in circumstances, where there is an absence of jurisdiction, such a jurisdiction within the respective court/forum/tribunal cannot under any means, be created through a contract between the concerned parties.

The post A Critique On The Territorial Jurisdiction Of Courts In India appeared first on LexForti .

If one were to particularly deliberate on the importance of Article 20 of the Indian Constitution, one would essentially look into the protection of fundamental rights relating to the conviction of offences. In simpler words, the subject matter of Article 20 can be postulated under the following conditions:

• First and foremost, no individual can be convicted for an offence other than the law that is currently in place, wherein the said person cannot under any means be penalized with an enhanced punishment other than what was prescribed during the time of commission of the mentioned offence. 
• No individual should be convicted for the same offence more than once, taking into regard the facts and circumstances of the said offence. 
• Thirdly, no individual should be coerced or be compelled to produce evidence and disclose information that has the likelihood of being used against him/her during court proceedings.

In totality, Article 20 is considered to be one of the most vital provisions of the Indian Constitution, which cannot be set aside, even during times of Emergency.

AN ELABORATION ON ‘EX POST FACTO’ LAW: ARTICLE 20(1) OF THE INDIAN CONSTITUTION  

It would be imperative to take into consideration the first clause of the mentioned provision, which bars the retrospective applicability of criminal laws, in circumstances where a new offence has been committed. Such laws, that brings into light a new offence cannot be applied in retrospection, with the purpose of penalizing an individual for an offence that had been committed in the past, as it would culminate to being violative of Article 21 of the Indian Constitution (depriving the person of the right to life and liberty) and would also be against the very principle of justice, reasonableness, equity, good conscience alongside being perceived as a form of arbitrary legislation.

At this juncture, it would be pertinent to take into cognizance the role of various cases in interpreting the same. The landmark judgement of Kedar Nath v. State of West Bengal witnessed the Hon’ble Supreme Court stating that any act which is declared as a criminal offence or provides penalty with respect to the same by the legislature, will be regarded to be prospective in nature, wherein the same cannot be implemented in a retrospective manner, as has been covered under Article 20(1) of the Indian Constitution.

Likewise, in the case of Mohan Lal v. State of Rajasthan, the Hon’ble Court opined that Article 20(1) of the Indian Constitution only covers convictions and punishments and is not applicable to trials or matters of prosecution. That being stated, trials covered under a different procedure other than what formerly existed during the commission of the said offence doesn’t come under the ambit of the mentioned provision. 

An exception pertaining to the said provision has however been brought into cognizance through the case of Rattan Lal v. State of Punjab, in which the Hon’ble Supreme Court was seen to have permitted the retrospective implementation of Criminal Laws, which was related to the reduction of punishment in the said Act. 

ELABORATING THE DOCTRINE OF DOUBLE JEOPARDY: ARTICLE 20(2) OF THE INDIAN CONSTITUTION

Whilst the literal meaning of the concept identified as jeopardy, is regarded to be a trouble or a peril, but in Criminal Law, the same implies “punishment.” However, with regard to discussing the doctrine of “double jeopardy” the mentioned concept traces its evolution to American Jurisprudence which states that no individuals shall be punished and prosecuted for the same act/ offence more than once. In order to bring forth the applicability of this provision, it is imperative that the accused proves that he has been prosecuted and penalized earlier for the very same act in a quasi-judicial or judicial proceeding. If it comes to notice that the accused had been formerly prosecuted and acquitted under the same offence, the applicability of Article 20(2) of the Indian Constitution will however not apply. 

It would be pertinent to bring into light the case of Venkataraman v. Union of India, wherein the Hon’ble Supreme Court clarified on the notion that the aforementioned provision is only applicable to judicial punishments, wherein it must be ensured that the no person is prosecuted more than once for the same offence by the judicial authorities. Furthermore, there is also the presence of the case of Maqbool Hussain v. State of Bombay, which is a landmark judgement, that observed a situation where the individual accused was caught possessing a particular amount of gold, which was against the aspect of lex loci during that time, post which the said item was revoked by the customs authority. With the passage of time, there was in all eventuality, the confrontation of the question of whether the same amounts to the doctrine of double jeopardy. 

But the Hon’ble Supreme Court held that departmental proceedings are distinct and independent of trial proceedings by a Tribunal or a Judicial Court. The same principle was reiterated in the case of A.A. Mulla v. State of Maharashtra,wherein it was observed that the mentioned provision will not be brought into play, in circumstances, where the facts are seen to be distinct in a punishment or a subsequent offence. 

This aspect has been adequately covered under the ambit of Section 300(1) of the Criminal Procedure Code, 1973 which stipulates that any person who has been prosecuted or convicted by a competent Court for any particular offence will not bring in the liability of being prosecuted again, till the former acquittal or conviction is seen to remain in force. 

The applicability of the mentioned provision does however require certain conditions to be fulfilled, which include the following:

• It is essential that the accused in question is tried before a Court formerly, wherein the mentioned provision is concerned solely with proceedings and judicial prosecution.
• As has been elaborated above, it is crucial that the acquittal/conviction is in force and is not set aside by any form of appeal or re-trial proceedings. 
• It is also mandatory that the Court trying the concerned case is competent and is known to act under a jurisdiction which is competent and should ensure that it doesn’t exercise its power in a manner which is ultra vires in nature.
• In the subsequent trial, it must be noted that the accused is not tried for the same facts and offence. 
• Lastly, it is also essential that the previous court proceeding ended on conviction or acquittal and in cases, where it ended post inquiry, such cases would come under the ambit of Section 300(1) of the Criminal Procedure Code, 1973.

ELABORATING THE LAW AGAINST ‘SELF-INCRIMINATION’: ARTICLE 20(3) OF THE INDIAN CONSTITUTION

This particular provision introspects and prohibits an accused from giving any evidence or information against oneself. This protection is available at all stages and is seen to protect and bar the compulsion of the accused, both physically and mentally. It must however be noted that this protection is only with regard to the protection of personal knowledge. 

In the case of M.P. Sharma v. Satish Chandra, it was observed that irrespective of the concerned individual being an accused or a mere suspect, the protection that has been covered under the ambit of Article 20(3) of the Indian Constitutionwill by all means, be brought into effect. In the mentioned case, it has however been stated that if the said individual voluntarily decides to discloses information, Article 20(3) will however not apply. This provision does not give protection to witnesses under Article 20(3) of the Indian Constitution, wherein the said category of persons get protection under Section 132 of the Indian Evidence Act, 1872.

Furthermore, in the case of State of Bombay v. Kathi Kalu Oghad, this principle was clarified wherein it was stipulated that the said protection is only applicable, taking into regard the facts and circumstances of the concerned case, based upon which, the personal knowledge of the individual (meaning the accused) will be protected. 

The landmark judgement of Nandini Satpathy v. P L Dani, brought into light the prohibitive scope of Article 20(3) of the Indian Constitution, wherein it was postulated that this provision arises at the preliminary stages of investigation, and the protection comes into effect at the stages of enquiry, investigation and trial. Section 161 of the Criminal Procedure Code, 1973 alongside Section 313 and 315 brings into light the stages of protection. More importantly, it was also held that Article 20(3) is considered to be in consonance with Section 161(2) of The Criminal Procedure Code, 1973.

CONCLUDING REMARKS

All in all, it can be stated that the sheer applicability of Article 20 has been brought into existence to protect individuals against the very excess of legislature, executive and the judiciary, bringing into light the importance of the doctrine, identified as the separation of powers. Such protections are not just available to Indians, but also foreigners and is thus, considered to be the bedrock of the Indian Constitution, as it ensures basic human rights to the accused and the convicted individuals.    

The post An Overview Of Article 20 Of The Indian Constitution appeared first on LexForti .

When one brings into mind the relevancy of Maneka Gandhi v. Union of India, one essentially and by all means, brings into consideration the basic principles pertaining to natural justice which have been enshrined in the Indian Constitution via the support of fundamental rights that have been guaranteed under Article 21 and 14 respectively. Having mentioned the same, post the period of Emergency, this case was considered to be one of the most vital judgements that have so far been passed by the Hon’ble Supreme Court, that have held a special role in shedding light on the liberal tendencies that have gone through a major shift towards ensuring the protection of personal liberty. 

Ever since the passing of this landmark judgement, the Apex Court ensured to display tremendous amount of diligence towards the sheer protection and enforcement of fundamental rights. In addition to the same, this pioneering case also held an extravagant role in overturning and overruling the precedent that had been brought about in the case of A. K. Gopalan v. State of Madras.

A FACTUAL SUMMARY OF THE CASE

The petitioner in the mentioned case was a journalist whose passport had been seized under Section 10(3)(c) of the Passport Act, 1967 wherein the said Act as per the stipulated provision empowers the authorities to seize the passport of the individual, with respect to the sovereignty and the integrity of India. It is however imperative to mention that the reasons pertaining to such an impoundment be communicated with the affected parties, wherein an exception can be made by taking into consideration the interests of the general public. After questioning the reasons relating to the confiscation of her Passport, the Ministry of External Affairs repudiated their intentions to produce any reason, by claiming that the same was being done “in the interests of the general public.” 

In pursuance to the said event, a writ petition under the applicability of Article 32 of the Indian Constitution was filed by the petitioner before the Hon’ble Supreme Court wherein the claims related to the violation and the need for the enforcement of fundamental rights with respect to the arbitrary action of the mentioned authorities was brought into light, by taking into regard the applicability of Articles 14, with further amendments involving the applicability of Article 21 (right to life and personal liberty), Article 19(1)(a) emphasizing on the right to freedom of speech and expression, and most importantly, Article 19(1)(g) of the Indian Constitution, that concentrates upon the right to freedom of movement. 

RELEVANT ISSUES OF THE CASE

It would be pertinent to mention the various issues that were contemplated in the present case, which can be elucidated under the following:

• Whether there is any nexus with respect to the rights that have been guaranteed under Articles 14, 19 and 21 of the Indian Constitution? 
• Whether there is any scope related to the “procedure established by law?”
• Whether the concept of Fundamental Rights can be regarded as conditional or absolute or whether there is a necessity to determine the same that has been provided to citizens by the Indian Constitution?
• Whether Section 10(3)(c) of the Passport Act, 1967 can be witnessed in violation of Fundamental Rights and if it fulfills the same, whether such a legislation can be regarded as a concrete law?
• Whether there has been a contravention of the principles pertaining to natural justice in the Impugned Order of the Regional Passport Officer as per the provision stipulated under the mentioned Act? 
• Whether there has been a protection of the “right to travel abroad” under Article 21 of the Indian Constitution? 

A DELIBERATION ON THE CONTENTIONS THAT WERE RAISED IN THIS CASE

CONTENTIONS THAT WERE RAISED BY THE PETITIONER

Several contentions were raised by the Petitioner with regard to the facts and the circumstances of the present case, which can be noted under the following:

• That the Central Government, by all means, acted in sheer violation of Article 21 of the Indian Constitution wherein the petitioner was deprived of the basic opportunity to be heard. 
• That the aspect pertaining to the “right to travel abroad” can be considered as a derivative of the right known as the right to personal liberty and no citizen, under any means can be deprived of the said right, except according to procedure established by law. On the other hand, while the Passports Act, 1967 has not prescribed a particular method for confiscating or revoking the passport of its rightful holder, such actions by the mentioned authorities are arbitrary and reasonable. 
• It would be imperative to mention that any procedure that has been established by law, must act in compliance with the requisite principles of natural justice. 
• An essential principle pertaining to the principles of natural justice, is ‘’Audi Alteram Partem,’’ wherein every citizen is given the chance to be heard, which was however not granted to the Petitioner. 
• Furthermore, the postulated provisions of Articles 14, 19 and 21 of the Indian Constitution must be essentially read in synchronization wherein a conglomerated reading of the same will give effect to the spirit of not just the makers of the Indian Constitution, but also the extraordinary legal document, known as the Constitution of India. 
• In furtherance to the same, with respect to the impugned order relating to the impoundment of Passport on the 4th of July, 1977, it was contended that the respondent had not just violated the Petitioner’s right to freedom of movement, but had also encroached on the petitioner’s right(s) to freedom of speech and expression, her right to life and personal liberty alongside the right to travel abroad. 

CONTENTIONS THAT WERE RAISED BY THE RESPONDENT

The contentions that were raised by the respondent can be elaborated under the following:

• The respondent after reiterating the principles specified in the case of A. K. Gopalan v. State of Madras, contended that the concept of law with reference to Article 21 of the Indian Constitution cannot be comprehended by taking into regard the principles related to natural justice. 
• Furthermore, the Attorney General of India stated that the right to travel abroad, was never in actuality, covered under the Clauses postulated under Article 19(1) of the Indian Constitution, and therefore, Article 19 can be regarded to be independent, thereby proving the reasonable nature of the actions undertaken by the Central Government. 
• In addition to the same, it was further contended by the respondent that the principles related to natural justice are ambiguous and vague. Therefore, the Indian Constitution should avoid reading such ambiguous and vague provisions as a part of the same.
• Having stated the same, it was further contended that the ambit of Article 21 of the Indian Constitution is in general, very wide that is inclusive of provisions known as Article 14 and 21. However, any particular law can be regarded to be unconstitutional with reference to Article 21, when it is witnessed to directly violate Articles 14 and 19. 
• Their reliance on Article 21 of the Indian Constitution must be noted wherein it was stated that the language containing “procedure established by law” need not pass the constitutional test of reasonability, because of which the same should not be seen in conformity with Articles 14 and 19 of the Indian Constitution.
• That the sheer spirit and the mind of the framers must be respected and protected, wherein the Constitutional makers while drafting the Indian Constitution had debated at various lengths on the American pattern relating to the “due process of law” and the British procedure that has been established by law. Therefore, it was stipulated that the conspicuous absence of such a due process of law with respect to the Constitutional provisions is seen to reflect the framers and the mind of the Indian Constitution. 

A BRIEF OVERVIEW OF THE JUDGEMENT: A CRITICAL ANALYSIS

This landmark judgement that was delivered on the 25th of January, 1978 changed the landscape of the Indian Constitution, as it not just expanded the scope of Article 21 of the Indian Constitution, but also went back to making India a true, welfare state as has been promised as per the Preamble of the Indian Constitution. 

The major views and findings of the Hon’ble Court can be elaborated under the following:

• It was held by the Hon’ble Court that with reference to the phrase that was utilized for the interpretation pertaining to Article 21 of the Indian Constitution that is in context to “procedure established by law” in place of “due process of law,” it was held that it is imperative that the procedure be free from any kind of irrationality and arbitrariness. 
• Furthermore, the Hon’ble Court also held that the very scope of personal liberty must not be construed in a strict and narrow sense, wherein the same should be understood in a liberal and broader sense. In totality, Article 21 was given a wider meaning, which was added on by the insistence of the Hon’ble Court towards obligating future courts to expand the mentioned horizons as has been identified under Article 21 to ensure the coverage of all Fundamental Rights instead of construing it in a narrow sense. 
• That being brought under one’s attention, the Hon’ble Supreme Court also overruled the precedent that had been set in the case of A.K. Gopalan v. State of Madras by emphasizing that there should, by all means be a unique dynamic of the provisions known as Article 14, 19 and 21 of the Indian Constitution, wherein it is pertinent that every law passes the test of the mentioned provisions. 
• Furthermore, it was also held that the provision as has been postulated under Section 10(3)(c) of the Passport Act, 1967 should not be violative of Article 21 of the Indian Constitution or Articles 19(1)(a) and 19(1)(g) for that matter and also later went on to clarify that the aforementioned provision had not contradicted Article 14 of the Indian Constitution. Given the mentioned provision, provides for an adequate opportunity to be heard, the Hon’ble Court therefore rejected the contentions raised by the Petitioner that the phrase, that is “in the interests of the general public” is not vague. 
• In furtherance to the aforementioned view, the Hon’ble Supreme Court however contended and held that Section 10(3)(c) and 10(5) is essentially an administrative order, and is henceforth open to challenge, with respect to the order being of a nature that is male fide, culminating to the denial of natural justice, and is not just unreasonable but is also ultra vires of the Indian Constitution. 
• The Apex Court, while reiterating the principles that were laid out in the case of Satwant Singh Sawhney v. D. Ramarathnam, observed that while taking into regard the ambit of personal liberty, one must also consider the right to travel abroad, which must act in synchronization with the said concept. All in all, under no conditions can an individual be deprived of their rights, except in accordance to a procedure that has been established by law. The confiscation or the revocation of the petitioner’s passport is violative of Article 21 of the Indian Constitution, wherein the said grounds being arbitrary and unchallenged, is also violative of Article 14 of the Constitution of India.
• It would be crucial to mention that in context to Section 10(3)(c) of the Passports Act, 1967 that is in circumstances where the State finds it imperative to confiscate the passport or do any particular activity that acts against the interests of the integrity or the sovereignty of the nation, its friendly relations with other countries, its security or with regard to the interests of the general public, it is important for the respective authorities to provide or record the adequate reasons in writing, and also furnish a copy of that particular record to the passport holder. 

THE REPERCUSSIONS OF THE MANEKA GANDHI JUDGEMENT: CONCLUDING REMARKS

All in all, it must be acknowledged that few judgements that have been passed in the Indian Legal History, that have had a life-changing effect as the Maneka Gandhi judgement has had so far. Apart from being such a well-written and balanced judgement, it also greatly established the interlinking of Articles 14, 15 and 19 of the Indian Constitution, which particularly specified that whilst it is of sole importance to secure the Fundamental Rights of every citizen, it must also be made sure that the procedure is not irrational or arbitrary. 

After the passing of the mentioned judgement, the Hon’ble Supreme Court restored its position of being looked at as the watchdog of democracy and also showed its intentions of safeguarding the thought processes of the Constitution makers. In fact, what makes this judgement all the more appealing is the aspect provided by a majority of judges wherein it was stipulated that for any legislation or provision to be declared as bonafide, reasonable and just, it is pertinent that the said law or provision be devoid of any kind of arbitrariness. Having mentioned the same, the greatest repercussion of this judgement is that today’s unanswered questions and problems of the Indian Parliament have been solved with lucid attention, in consideration to the interpretation pertaining to Article 21 of the Indian Constitution that has been derived in the mentioned case.

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Introduction

The present article discusses in detail Article 12 of the Indian Constitution, which defines ‘State’. The definition of State provided under Article 12 is inclusive but not exhaustive and there are certain authorities and instrumentalities that though not clearly mentioned under the said article, can be brought within the purview of the definition of the state.

The fundamental rights guaranteed by the Indian Constitution have been laid down in Part III of the constitution, starting from Article 12 to Article 35.

The first article under Part III is Article 12, which does not guarantee any right but specifies the authorities and the bodies, that are deemed to be “state” and against whom the fundamental rights can be enforced.

Article 12 states that the Central Government, the Parliament, State Government, and State Legislatures come within the definition of “state”. Apart from these, certain local authorities and other authorities are also said to be “state”.

The apex court of the country through its various landmark judgments has laid down the tests for determining whether a body would fall within the meaning of the term local authorities and other authorities and hence would be considered “state” or not.

It has also been laid down that judiciary in the exercise of its administrative functions can come under the definition of “state” but not in the exercise of its judicial function. All of these are discussed below in detail.

Definition

Article 12 states

The authorities that are expressly included within the definition of Article 12 are as follows:

1. Government and Parliament of India;
2. Government and Legislature of each of the States;

These legislative and executive wings of the Union and the States are expressly and specifically mentioned in the concerned article.

However, the other two categories i.e., “local authorities” and “other authorities” are not quite specific. The bodies that come under these two categories have been analyzed by the Supreme Court through its various judgments.

Local Authorities

The expression “local authorities” usually refers to authorities such as municipalities, District Boards, Panchayats, mining settlement boards, etc. Anybody functioning under the state; owned; controlled and managed by the “state” and carrying out a public function is a local authority and comes within the definition of the state.

The Supreme Court in the case of Union of India v. R.C. Jain laid down the test for determining which bodies would be considered as a local authority under the definition of state enshrined under Article 12 of the constitution. The issue in this case broadly was ‘Whether Delhi Development Authority (DDA) is a local authority or not?’ The Court held that if an authority:

1. Has a separate legal existence
2. Functions in a defined area
3. Has the power to raise funds on its own
4. Enjoys autonomy i.e., self rule and
5. Is entrusted by statute with functions which are usually entrusted to municipalities, then such authorities would come under ‘local authorities’ and hence would be ‘state’ under Article 12 of the Constitution.

Other Authorities

The term ‘other authorities’ under Article 12 encompasses those authorities that do not fall within the first three categories. ‘Other Authorities’ though not defined in the constitution has been widely interpreted through various judgments and now includes a number of authorities under it.

The Supreme Court in the case of Rajasthan Electricity Board v. Mohan Lal laid down the conclusive test for determining the bodies that would come under the ambit of ‘other authorities’. The court held that if an authority

1. has the power to issue directions and any offense against them is punishable by law
2. has the power to make rules that would have statutory effect
3. is an agency or instrumentality of state for carrying out trade or business which otherwise would have been carried out by the state departments, such authorities would come within the purview of ‘other authorities’ and hence would be considered ‘state’.

In the case of Sukhdev Singh v. Bhagatram, the question before the court was ‘whether ONGC (Oil and Natural Gas Corporation), LIC (Life Insurance Corporation of India) and IFC (International Finance Corporation) created by statutes would come under the purview of ‘state’ under Article 12.’

The court, in this case, followed the test laid down by the court in the case of Rajasthan Electricity Board and held these authorities to be ‘state’ as they came within the meaning of ‘other authorities’ under Article 12.

Another case, Sabhajit Tewary v. Union of India was decided by the same bench and on the same day on which Sukhdev Singh’s case was decided.

The question before the court, in this case, was whether the Council of Industrial and Scientific Research(CISR), which is registered under the Societies Registration Act, 1898 would come within the definition of ‘state’ under Article 12. The Supreme Court observed that a body would be ‘state’ if :

1. It is performing essential state function and
2. It is under the pervasive control of the Government.

The court held CISR not to be ‘state’ as per the above said requirement.

In the case of R.D.Shetty v. The International Airport Authority of India, a similar question was raised before the court that whether International Airport Authority is a state. The court through J.Bhagwati laid down the following test to determine whether a body is included within ‘other authorities’ and comes within the definition of ‘state’ :

1. The financial assistance given by the State and magnitude of such assistance;
2. If any usual or extraordinary assistance is provided by the State’;
3. Nature and extent of control of management and policies of the corporation by the state;
4. The state conferred or state protected monopoly status;
5. The function carried out by the corporation would ascertain whether the body is an instrumentality or agency of the state or not;
6. If one of the body is transferred to the government.

The above-said parameters broadly determine whether an authority is ‘other authority’ as per the definition of ‘state’ under Article 12. Considering these tests, International Airport Authority was held to be ‘state’.

Again, in the case of Ajay Hasia v. Khalid Mujib, a similar question arose before the court that whether a college that was established by a registered society would come under the definition of ‘state’ or not.

The court, in this case, approved the tests for determining ‘other authorities’ as laid down in the case of R.D.Shetty. The court further observed that

The court further held that on considering the factors mentioned in the case of R.D.Shetty, if a corporation is an instrumentality or agency of the government, it must become within the meaning of ‘other authority’ and would be ‘state’.

The next case that came before the court on a similar issue was Pradeep Kumar Biswas v. the Indian Institute of Chemical Biology. The question before the court was whether CISR was an instrumentality of the state or comes within ‘other authorities’ under Article 12 or not.

It was held that there is no strict rule that every registered society having any connection with the government, to be declared as ‘state’. If any of the objective tests laid down in the case of Ajay Hasia is not fulfilled, then the check must be whether the body is functionally, financially, and administratively held by the government. If this condition is fulfilled, then also the body would come under ‘other authority’ and hence would be ‘state’ under Article 12.

The case of Pradeep Kumar Biswas acts as a precedent for all further cases related to the interpretation of ‘other authorities’.

Further, in the case of Zee Telefilms v. Union of India, when the issue came before the court whether BCCI is a state or not, the court again applied the tests laid down in Ajay Hasia and Pradeep Kumar’s case and held BCCI, not a state.

It must be noted that Article 12 of the Constitution does not specifically talk about Judiciary. The answer to the question of whether the judiciary is a state or not is discussed below in detail.

Whether Judiciary is a state or not ?

Judiciary, though an organ of the state, is not specifically mentioned in Article 12, unlike the executive and the legislature. Whether the judiciary comes under the definition of ‘state’ or not depends on the type of function carried out by the courts.

In the exercise of non-judicial functions such as administrative or legislative, the courts fall within the definition of ‘state’. However, in the exercise of judicial functions, the courts cannot be brought within the definition of the state.

In the case of Naresh Sridhar Mirajkar v. the State of Maharashtra, the issue before the court was whether a judicial order could be in violation of fundamental rights and if such judicial order amenable to writ?

The court, in this case, held that

Therefore, the judiciary for discharge of its judicial functions cannot come under the definition of ‘state’ and is not amenable to the writ.

Further, in A.R.Antulay v. R.S.Naik, the court held that

Considering these factors,court held that judiciary in exercise of its judicial functions does not come within the definition of ‘state’ under Article 12.

In the case of Riju Prasad Sarma v. State of Assam, it was held by the Supreme Court that when a court is acting in its judicial capacity, it cannot be considered as ‘state’. However, its administrative action is amenable to writ.

Conclusion

As per the interpretation of Article 12 by the apex court of the country, it can be concluded that Article 12 though inclusive is not exhaustive. Apart from the executive and the legislative organs of the state, it also includes certain authorities, which fulfills the condition of ‘local authorities’ and ‘other authorities’ within the definition of the state.

The scope of ‘other authorities’ has witnessed a drastic change. Judiciary has time and again tried to include more and more bodies within the definition of state so that maximum people can enforce their fundamental rights. Further, it has been held that the judiciary in the exercise of its judicial functions is not a state.

However, the judiciary is stated with respect to its administrative functions, and writs for enforcement of fundamental rights can be filed if the action of the judiciary is in contravention of it.

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Introduction

The Constitution of India provided certain guidelines for the State to follow to protect its citizens. It mentions the responsibility of the State to its citizens and that is called as Directive Principles of State Policy (Hereinafter “DPSP”). Part IV of the Constitution constitutes the DPSP. The aim of this part is to guarantee social, economic, and political justice. This DPSP shall help in achieving the Welfare State.

DPSP and the Constitution

Part IV of the Constitution consists of 15 DPSP. This begins from Article 36 to Article 51 of the Constitution. The Government of India before framing any laws or policies shall keep these articles in mind. This part of the Constitution consists of the obligations that a State must carry on.

The Preamble of the Constitution explicitly states that it shall secure justice, liberty, equality, and fraternity to all of its citizens. The only way to achieve this aim of the Constitution is through DPSP. That is why some scholars consider DPSP as the kernel of the Constitution. Further, it is a well-known fact that India aims to adopt the ideal of the welfare state. DPSP is the means to achieve the same.

Fundamental Rights, DPSP, and Fundamental Duties

The Constitution of India not only imposes obligations on the State but also provides rights and duties for its citizens. And such rights and duties are known as Fundamental rights and fundamental duties. The former is enshrined in Part III of the Constitution and the latter is in Part IV A of the Constitution. The relationship between these three can be explained through judicial precedents.

1. It has to be noted that when the actions of the legislative and executive violate the Fundamental Rights of the Constitution, then the same action shall be declared void. For example, when the legislature passes a law and it violates Article 14, 19, and 21 of the Constitution, then it shall be declared unconstitutional. However, an exception to this rule was affirmed in I.C. Golak Nath & Ors. v. State of Punjab & Anr.. The Court held that if the law framed is in line with the DPSP and it violates the above-mentioned articles, then the same law will and shall not be declared unconstitutional only based on those grounds.
2. Golak Nath’s case was overruled in the case of Kesavananda Bharati v. State of Kerala & Anr. In this case, the court held that fundamental rights and DPSP are meant to supplement one another.
3. In State of Kerala v. N. M. Thomas, the court held that Constitution should be read in harmony with the DPSP.
4. In the case of Javed v. State of Haryana, the Supreme Court held that Fundamental rights should be read along with the Chapter on Directive Principles of State Policy and the Fundamental Duties.
5. In Ashok Kumar Thakur v. UOI, the court held that Fundamental Rights represent civil and political rights and DPSP’s represent social and economic rights. And DPSP’s are not subordinate even though they are non-justiciable by the Judicial process.
6. In N.K. Bajpai v. Union of India, the court advised examining the constitutional aspects of fundamental rights, DPSP, and fundamental duties while interpreting any provisions.

There are various other cases in India that mention the relationship between fundamental rights, DPSP, and fundamental duties. All of these cases emphasize the fact that neither of the supreme to each other but complementary.

Enforceability of DPSP

The enforceability of DPSP is a major question in citizen’s minds. The answer to that is no. DPSP is not enforceable as it is a moral obligation upon the State and not a legal obligation.  The State is not legally liable if they don’t follow DPSP. The same goes for fundamental duties. However, fundamental rights are enforceable.

Article 37 of the Constitution explicitly states that Part IV of the Constitution shall not be enforceable by any court of law. However, it is important to note that even though the DPSP is not justiciable by the court, it is justiciable by itself. This was reiterated in the case of Air India Statutory Corporation v. United Labour Union & Ors.

Conclusion

In conclusion, DPSP is considered to be fundamental in the governance of the country. Dr. Ambedkar referred to these principles as the novel features of the Constitution because of their non-enforceability. It is important to note that DPSP being non-enforceable does not make it useless as it provides guidelines to achieve the concept of welfare.

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