INTRODUCTION

Part III of the Constitution of India guarantees certain fundamental rights to all of its citizens, these rights include the right to freedom (as illustrated by article 19 ), the right to equality (as can be seen by articles 14 and 15 ), right against exploitation (as enumerated in articles 23 and 24 ), etc. These rights play a major role in helping preserve and promote the rights of the individuals, as well as promoting equality. But simply declaring these rights would not be able to ensure that they continue to exist through the trials and tribulations of political life, the makers of the Constitution realized that if these rights were to be truly made available to the people, it was crucial that it made these rights enforceable by the judiciary in order to prevent the laws from remaining mere paper laws. It is with this realization that a right without a remedy is nothing more than a meaningless formality that the right to constitutional remedies was brought about in India.
This right to constitutional remedy is talked about in article 32 of the Constitution, meaning it is a fundamental right in itself, making it a provision that is unique to the Constitution of India. Under this article, if a person believes that they have been deprived of any of their fundamental rights, they have the right to approach the supreme court in order to get the required legal remedies and get their rights enforced. Further, it gives the Supreme Court, or any other court empowered by parliament, the power to enforce these fundamental rights of the people through relevant instruments such as the issuance of writs. The right to Constitutional Remedies is something that has been described in Ram Singh V. State of Delhi as a privilege and duty of the court in order to ensure that the “rights intended to be fundamental are kept fundamental”, similar sentiments were echoed by the court in State Of Madras vs V.G. Row. It was also stated in Romesh Thappar V State of Madras that the protection of the liberties of the people lies at the very center of preserving a democratic way of life. The only exception to the right to constitutional remedies that exists is- in a situation where the President declares a national emergency under Article 352 of the Constitution then this right gets suspended for the people, this means that even if someone believes that their fundamental rights have been infringed, they will be unable to approach the Supreme Court to enforce the same.
Even though this exception has been widely criticized, the makers of the Constitution believed that it is a necessary evil because the interests of the individual cannot be allowed to interfere with, or harm, the interests of the state at large, and in pursuance of the same the right to constitutional remedy can be curtailed in such exceptional circumstances.
Article 32 can also be used by the courts to award adequate compensation, the court reasoned that by providing monetary compensation, any similar acts will be deterred in the future. The court used Article 32 to provide compensation in cases such as Rudul Shah V. Union of India and Bhim Singh V. State of Jammu and Kashmir and reiterated that if they are not allowed to do so under Article 32 then it would render the article useless in M.C Mehta.

WRITS

As we have already discussed, in order to be able to enforce the fundamental rights of the people, the courts have been armed with certain instruments. The most important one of them being the power to issue writs.
A writ refers to a written order by a court with relevant jurisdiction which the court uses to command a particular body to perform a specified act or abstain from performing an act. As we have already seen, the Supreme Court retains the right to issue writs under Article 32, but this power is not exclusive to the apex court. The High Courts of appropriate jurisdiction also have the power to issue writs as provided by Article 226 of the Indian Constitution, and this power is not to be conferred to the High Courts in derogation of Article 32.
With regards to the jurisdiction of the High Court to use Article 226 to issue writs, it had initially been laid down in the Khajoor Singh case as well as the Saka Venkata Rao case that the authority or government against whom the writ is to be issued need to be located within the territorial jurisdiction of the High Court. This position was altered by the 11th Amendment of 1961 which stated that any high court within whose jurisdiction the cause of action arose would be allowed to issue writs.
The power to issue writs is wider for the High Courts than it is for the Supreme Court, this can be seen from the fact that while the Supreme Court can only use its writ jurisdiction to enforce the fundamental rights of the people, the High Courts have been given the power to issue writs to uphold not only fundamental rights but other Constitutional as well as legal rights. An instance of the High Courts using their writ jurisdiction to enforce constitutional rights can be seen in the case of Narayan Prasad V. State of Chhattisgarh when two brothers were denied No Objection Certificates for the transfer of their property by the special tribunal. They approached the High Court to enforce their right as provided by Article 300-A of the Constitution, and this was upheld by the court who stated that they ought to be granted the same since it is a constitutional right that has been granted to them.

The writs are classified into five types; these are discussed below:

1. The Writ of Habeas Corpus: The literal translation of the writ is “to have the body”. This is used by the court to set free someone who, in the eyes of the court, has been wrongfully detained. It was held in Narayan V. Ishwarlal, that the question of whether the writ is civil or criminal would depend upon the procedures in which the detention was executed.

An important feature of the writ is that in the case of habeas corpus, the doctrine of locus standi has been relaxed. This doctrine states that only that person who has a direct connection to the case at hand shall be permitted to approach the court for relief. In the case of this writ, this doctrine was eased by the court in the case of Sheela Barse V. State of Maharashtra, this was done in court because if there is a situation where a detained person is unable to plead, any other party such as their family should be allowed to file a writ petition on their behalf.

In addition to this, even if someone who has been detained writes a letter to a judge, it can be used as sufficient grounds to file the writ, this was held in Sunil Batra V. Delhi Administration. Finally, the courts also have the power to take suo moto cognizance and file a writ themselves. While dealing with a habeas corpus petition, the courts may also look into the legality of the detention without having the person so detained, produced before them. This was seen in the case of Kanu Sanyal V. District Magistrate.

Once the writ is issued by the court, the person who has been wrongfully detained is produced before the court, and if the court finds that the detention was not justified then it orders their release. They can deem the detention to be illegal on grounds of due procedure established by law not being followed, or that the detention was not made in accordance with the law. In certain cases, the courts may even go so far as to award exemplary damages, such as was seen in the case of Bhim Singh.

This writ can, however, not be invoked in cases such as where the detention is a result of a judicial proceeding, the person has been put into restraint under a constitutionally valid law, or if it is deemed that the court does not have the appropriate territorial jurisdiction.

2. The Writ of Mandamus: Mandamus literally means, ‘we order’, this writ is a form of command by the courts to other bodies, which could be constitutional, statutory, or non-statutory, or by a higher court to a lower court, to perform a specific act, or stop them from performing a certain act which falls outside the scope of their powers, these acts need to be mandatory in nature and not discretionary.

It is important to remember that this writ cannot be filed against a private party who does not have a legal duty to perform the function, it can also not be used against the President, as held in the S.P Gupta case, or governors, as said in C.G Govindan V State of Gujrat. It can also not be brought against inferior officers who are bound by the directions provided by their seniors. It can however be filed against a private person if it can be shown that they acted in collusion with a public authority, this was laid down in the cases of The Praga Tools Corporation v. C.V. Imanual, and Sohanlal v. Union of India. The court has also stated that the rule of locus standi is to be followed while issuing this writ.

Courts can issue the writ in a situation where there exists some legal right of the petitioner that has been infringed due to the non-performance of a duty that a party, be it a public authority or a private party, was legally bound to perform but has not done so.

Some cases where this writ was used by the court include the case of Rashid Ahmad V. Municipal Board where the court held that even if an adequate alternative remedy is available, it cannot serve as a bar towards issuing the writ even if it might be taken into consideration by the court. Even in PUCL V. Union of India, the courts issued a continuing mandamus, which means that the state was required to appear before the court at regular intervals and show that they were taking necessary steps to provide the right to food under Article 21 of the constitution. Here the continuing mandamus was used by the court to continuously monitor the state for many years after the initial suit was brought in 2001.

3. The Writ of Certiorari: Certiorari means ‘to certify’. This writ is used by higher courts as a form of a command to a lower court or some lower quasi-judicial body to send the records of a proceeding that is pending before it to the higher court. This is usually done when it is believed that the lower court does not have the necessary jurisdiction as was seen in Rafiq Khan V. State of U.P where the Allahabad HC quashed an order by the sub-divisional magistrate who had modified the order by the Panchayati Adalat to convict the accused under the relevant sections of the IPC on the grounds that the magistrate lacked the required jurisdiction to be able to modify orders.

It is also used if the lower court violates the principle of natural justice while giving its judgment, or if there is an error of law made by the lower court that is apparent on the face of it, i.e., they have clearly disregarded certain statutory provisions, this was seen in the case T.C Basappa V. T. Nagappa. The writ cannot be issued if the decision by the lower court is made due to an error in facts, and it can only be filed against a lower court and not against a higher court or a court of equal standing, this was clarified in Surya Dev Rai V. Ram Chander Rai.

It is important to remember that the higher court only has an advisory jurisdiction while issuing this writ, and it cannot be used in the form of appellate jurisdiction. It also follows the doctrine of locus standi to a very stringent degree.

4. The Writ of Prohibition: This is also known as a stay order, under this writ used by a higher court to forbid a lower court from continuing proceedings or acting beyond their scope of powers. The main aim behind the writ is to prevent courts from acting outside their scope of jurisdiction, as was seen in East India Company Ltd. V. The Collector of Customs as well as the Bengal Immunity Co. Ltd case, and it is available while the proceedings are pending and before an order has been made.

4. The Writ of Quo Warranto: This writ is used to look into the legality of a claim made by a person or an authority to act in some public office, it seeks to check whether they are entitled to the position or not by examining the actions of the appointing authority. The basic idea behind having this writ is to prevent someone from holding a public office that they are not entitled to in order to prevent harm from coming to the public. This writ can be issued by anyone, the conditions for issuing the writ are that the office cannot be private and must be a public one (this was stated in Jamalpur Arya Samaj V. Dr. D. Ram ) which was created either by a Statute or by the Constitution. Further, it must be a permanent office and the writ has to be issued against a person who is currently holding the office or is someone who was disqualified from the office but refuses to vacate. This writ falls completely on the discretion of the courts.

CONSTITUTIONAL REMEDIES THROUGH PUBLIC INTEREST LITIGATION

A PIL refers to litigation that is undertaken in order to address grievances of the public and can be filed by anyone. A PIL is filed under Article 32 in the Supreme Court, Article 226 in the High Court, and Section 133 of the Code of Criminal Procedures in a magistrate. The courts can also initiate the process on the reception of a report, email, letter, etc. The PIL can be treated in the same way as a writ petition and once the court is satisfied that the letter is from the aggrieved party, it can initiate proceedings. It is a critical part of the Constitutional Remedies since it helps promote equality as well as protection of personal liberties of the people who might be unable to stand up for themselves. Furthermore, due to its inexpensive nature, it can be made available to more people and helps the courts in upholding the rights of the minorities and raising public awareness.
While the intention behind introducing PIL’s was to help make justice more accessible to all sections of society, it has also drawn criticism. Some of the criticism leveled towards PIL’s include the fact that the courts have misused PIL’s to overstep their bounds and breach the separation of powers by making policies on subjects such as pollution and sexual harassment. Further, due to the sheer volume of PIL’s that get filed due to their inexpensive nature, not only does it lead to an increase in the burden of the courts, oftentimes they spend time on frivolous PIL’s while ignoring more pressing concerns.
When it was seen that there was rampant abuse of PIL’s taking place, guidelines were laid down with regards to PIL’s in the State of Uttaranchal V. Balwant Singh where the court stated that any person who files a frivolous PIL ought to be fined up to Rs. 1 Lakh. It further said that the courts must verify the credentials of the petitioner before they take up a PIL, and they must ensure that the PIL contains a substantial question of interest to the public at large.

CONSTITUTIONAL REMEDIES AND RES JUDICATA

Res Judicata roughly translates into a matter that has been decided. The doctrine states that if a matter has already been decided by a court of competent jurisdiction, it is binding on the parties unless overturned via appeal or revision. The question thus arises, will an application under Article 32 be maintainable if a similar petition has been rejected by the High Court under Article 226. The rule is not only a mere technicality, it finds its roots in the promotion of public policy.
The court held in Daryao V. State of Uttar Pradesh that the doctrine of res judicata would remain a bar on the maintainability of a petition under Article 32 before the Supreme Court if the same has been decided by the High Court under Article 226. Further, it is important to note that in a situation where a writ petition is pending before a High Court, it cannot be filed before the Supreme Court, this was laid down in PN Kumar V. Municipal Corporation of Delhi, if such a situation were to arise then the party must only be allowed to move to the Supreme Court on appeal.

CONCLUSION

Articles 32 and 226 have played a monumental role in giving the courts the power to make justice more accessible to all sections of society. Through the regular judicial review, they have made the Constitution into a dynamic document that is better adjusted to modern times. Providing constitutional remedies to the people through the medium of PIL’s has vastly helped the disadvantaged raise their voice against the wrongs committed against them.
It is for these reasons that Article 32 has been deemed to be a cornerstone of our democracy by former CJI BP Gajendragadkar, M V Pylee noted that the first three sections of Article 32 help make the fundamental rights real, and this, in turn, makes them the “crowning part of the entire chapter”.
While these articles do equip the judiciary with great powers to be able to aid the public, it is critical that regular checks be maintained on the usage of this power by the courts, it has to be seen that the Judiciary work with a level of restraint and do not overstep their bounds. After all, with great power comes great responsibilities.

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SHREYA SINGHAL V. UNION OF INDIA, AIR 2015 SC 1523

MATERIAL FACTS

Shaheen Dhada and Rinu Srinivasan were arrested by the Mumbai police in 2012 for posting comments showing their dissent at a bandh organized following the Death of Shiv Sena Chief Bala Saheb Thackery, on their Facebook profile. Even though the two arrested girls were later discharged and criminal charges against them were dropped, a nationwide protest was started based on the presumption that the police abused their power by invoking Section 66A and that Section 66A was infringing the Fundamental Right of Speech and Expression. Moreover, in January 2013, the central government brought an advisory under which no person can be arrested without the police having prior approval of the inspector general of police or any other senior officials to him/her. A writ PIL was filed under Article 32 of the Indian Constitution seeking to declare Section 66A, Section 69, and Section 79 of the IT Act, 2000, by the Petitioner. Under a single PIL case known as “Shreya Singhal v. Union of India,” the Apex Court compiled the whole petition pertaining to the constitutional legitimacy of the information technology act or any provision within it.

ISSUES

1. Whether sections 66(A), 69, and 79 of the IT Act, 2002 and section 118(d) of the Kerela Police Act are required to be declared unconstitutional for violating Article 19(1)(a) of the Constitution of India?
2. Whether Section 66A arbitrarily, excessively, and disproportionately invades the right to Freedom of Speech and Expression? And if it creates a chilling effect on Freedom of Speech and Expression.
3. Whether Section 66A of the IT Act, 2002 is protected under article 19(2) as a reasonable restriction to freedom of speech and expression?
4. Whether Section 66A infringes Article 14?

ARGUMENTS BY THE PARTIES

It was contended by the petitioner that Section 66A infringes the Right to the Freedom of Speech and Expression guaranteed under Article 19(1)(a) and shall not be protected by the reasonable restrictions provided under Article 19(2). And that it creates a ‘Chilling effect’ on the Right of Freedom of Speech and Expression. And that there is no difference provided between, discussion, accuracy, and incitement of an expression. Section 66A is vague in nature, as it does not specifically define the terminology used in the law. Thus, it can be misused easily and arbitrarily. In addition, Article 14 has been violated as there is no intelligible differentia between information transmitted through the internet and other traditional sources. Thus, sections 66A, 69, and 79 of the Information Technology Act are in clear violation of fundamental rights given under Article 12-35 of the Constitution of India.
On the other hand, the respondent contended that there is at present no requirement of Courts to step in, and would be required only when a law is clearly violative of Part III and that there is a presumption in favor of the constitutionality of the law in question. Mere probability of abuse of provision cannot be a ground to declare a provision unconstitutional and that provision cannot be declared unconstitutional merely based on it being vague, also, the language is liberal in nature for the greater good.

JUDGEMENT

The Supreme Court of India repealed Section 66 of the Information Technology Act, in Toto, for violation of Article 19(1) (a) of the Indian Constitution and maintained that it cannot be guarded under Article 19 (2) anymore. Section 69A and the Information Technology Rules, 2009, were held to be within the legal powers of the Constitution and constitutionally valid. Contingent to the interpretation of Section 79(3)(b) of the IT Act, Section 79 was declared to be valid and lawful. The Hon’ble Court also annulled section 118(d) of the Kerala Police Act.

ANALYSIS

The right conferred by Art 19(1) (a) is neither absolute nor unchecked and it features rights with permissible restrictions. Each sub-clause of Art 19(1) is subjected to different kinds of restrictions, which are reasonable in nature. These restrictions are the rights and interests of others, which are also fundamental in nature. While the rights reflect claims of the individual, the limitation protects claims of other individuals, society, and the State. All citizens are fundamentally equal, and thus the welfare of each citizen is of equal importance to the society, meaning that an individual’s rights cannot override or transcend the rights of others in an ordered society. It’s the nature of democracy that needs Freedom of Speech and expression. Freedom of speech consists of several aspects, including the right to express one’s opinion unimpeded, by the fear of reprisal. It is one of the most fundamental elements of a wholesome democracy. It allows individuals to openly engage in the economic, social, and political decisions of their nation, but not at the cost of others’ rights.

CONCLUSION

The court acknowledged that the words used in 66A are entirely unrestricted and ambiguous and are not protected under Article 19(2) of the Constitution of India. In fact, Section 66A had no immediate relation with inflicting disruption to law and order or provocation to perpetrate an offense and was thus knocked down by the court.

The mechanism followed by the court was to secure the constitutional right to freedom of speech and expression, and by demanding the safeguard pursuant to Article 19(2) of the Constitution; the law could in no way undermine this right. Also, the court has abrogated only those parts which were ambiguous and contentious in nature by incorporating the law of severability. It is not necessary to hold the entire legislation void or unconstitutional.

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INDEPENDENT THOUGHT v. UNION OF INDIA and ANOTHER (2017) 10 SCC 800; AIR 2017 SC 4904

FACTS OF THE CASE:

The Petitioner in the present Public Interest Litigation is a society registered on 6th August 2009 and provides technical and hand to hand support to non-governmental organizations and governmental organizations for child welfare. Society is also involved in legal research, social issues regarding children, and their rights.
The Petitioner approaches this Hon’ble Court under Article 32 of the Constitution of India with a view to draw attention to the violation of the rights of girls who are married between the ages of 15 and 18 years i.e., Marital Rape.
The Petition contains that according to Section 375 of Indian Penal Code, 1872 (hereinafter IPC) sexual intercourse with a girl below 18 years; with or without consent, is a statutory offense of Rape. Almost every statute recognizes a girl below 18 years as a minor/child. Unfortunately, Exception 2 of Section 375 of IPC says that if a girl child between 15 and 18 years of age is married, her husband can have non-consensual sexual intercourse with her, without being penalized under the IPC, only because she is married to him and for no other reason. It further contended that the right of a girl child is taken away by the provision and non-consensual sexual intercourse with her husband is not an offense under the IPC and it is in violation of Article 14, 15, and 21 of the Constitution of India.

ISSUE:

Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape?

RULE OF LAW:

• Exception 2 of Section 375 of IPC, 1872
• Article 14, 15 and 21 of Constitution of India, 1950

OBSERVATIONS:

The petition was heard by a division bench consists of Justice Madan B Lokur and Justice Deepak Gupta.
The Madan B Lokur, J. concurred that Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not. Exception creates an unnecessary and artificial distinction between a married child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved. An artificial distinction is arbitrary and discriminatory and is not in the best interest of the girl child. An artificial distinction is contrary to the philosophy and ethos of Article 15(3)1 of the Constitution and the commitments in international conventions. It is also contrary to the philosophy behind some statutes, bodily integrity of girl child and her reproductive choice.
Furthermore, Deepak Gupta, J. observed that Exception 2 of Section 375 IPC insofar as it relates to girl child below 18 years is liable to be struck down on the following grounds:
(i) It is arbitrary, capricious, whimsical and violative of rights of a girl child and not fair, just and reasonable and, therefore, violative of Articles 14,15 and 21 of Constitution of India;
(ii) It is discriminatory and violative of Article 14 of the Constitution of India;
(iii) It is inconsistent with provisions of POSCO, protection of children from sexual offenses which must prevail.

JUDGEMENT:

The division bench allowed the petition and struck down the Exception 2 of Section 375 of IPC, 1872 as being contrary to the Article 14,15 and 21 and other statutes and opined that it be read as “Sexual intercourse or sexual acts by a man with his wife, wife not being 18 years, is not rape”.

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Amita vs Union Of India & Anr on 11 August 2005

Introduction

This case is a writ petition filed by a visually challenged girl in the Supreme Court of India on the grounds of her being rejected on the basis of her disability for the post of probationary officer in the Banking services recruitment board, Chennai.

Facts

An advertisement was released by the Banking services recruitment board Chennai for the appointment of a probationary officer. Seeing the advertisement, Amita, a visually challenged girl applied for the post. The criteria for the post were as follows.

1. The candidate must be a graduate from any recognized university.
2. The candidate should not be less than 21 years of age and not more than 30 years of age.
   These criteria also included any other qualifications mentioned by the government of India.
   The petitioner sent her application along with a demand draft. She mentioned in her application that she is visually impaired so that the board can make the necessary arrangements regarding providing of scribe for the examination. After a few days her application was returned to her and it was mentioned there that ‘As we don’t hire visually challenged candidates for the post of probationary officer, your application is rejected.’ Aggrieved by the decision of the board, Amita filed a writ petition in the supreme court of India under Article 32 of the constitution of India.
   The petitioner was also allowed to amend her petition in which she prayed for the following reliefs.
3. An order of mandamus should be passed in order to allow her to sit for the entrance examination.
4. The board in the instant case has not given her an equal opportunity which is a violation of articles 14, 16, 19, and 21.
5. An order of mandamus should be passed whereby a proper action should be taken keeping in view the rights of persons with a disability, equal opportunities Act 1995.

Arguments on behalf of the petitioner

The learned counsel on behalf of the petitioner argued that the denial of opportunity by the Board only on the ground of her disability is erroneous on the face as the advertisement only mentioned that the candidates applying for the post should be more than 21 and less than 30 years of age and should be a graduate. The petitioner had fulfilled these criteria. The order of the Board has violated article 14, 16, 19, and 21 of the constitution.

Arguments on behalf of the respondent

The learned counsel on behalf of the respondent argued that the post of a probationary officer is not earmarked for the visually challenged so the rejection of application of the writ petitioner is valid.

Judgment

It was held that the order of the Board cannot be sustained as the writ petitioner has fulfilled all the criteria mentioned in the advertisement, hence she cannot be rejected only on the grounds of her visual impairment. It was also found that the petitioner also applied for the same post in Bangalore and she was given the admit card for the entrance test even after mentioning that she is visually impaired. This clearly proves that visual impairment cannot be a reason for the rejection of the application.

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Amar Chandra Chakraborty Vs Collector of Excise (1972)

Abstract

This case is a landmark decision taken by the Supreme Court of India. It was an important case with respect to the subject matter of interpretation of statutes. The principle of ejusdem generis was defined by the court and it also stated the applicability of this principle. The word ‘ejusdem generis’ means denoting a principle for interpreting legal texts that assume that, if there is a general term accompanying a list of specific terms, then the general term is restricted to things of the same character as the specific terms. With the help of this case court laid down some ground rules regarding the application of this rule.

Facts of the Case

The plaintiff in the petition had obtained a license under the Tripura Excise Rule 1962 as he engaged in Excise Wholesale Contractor for Country Liquor. There was an agreement entered by the plaintiff and the Government of Tripura thereupon he was appointed as the Contractor of the warehouse for supply and rectified spirit for Government of Tripura for a period of 5years. He fulfilled all the necessary conditions of the license as well as the agreement made between the parties. But before the expiry of the license granted the Collector of Excise (respondent) allegedly wrongfully withdrew the license granted to the plaintiff as new provisions were added in the Tripura Excise rules 1962. The respondent claimed that the plaintiff had to pay the government due when the plaintiff tried to secure the deposit he had made initially as a condition of the agreement.

Judgment

The plaintiff had filed the petition challenging the order passed by the Judicial Commissioner who stated that:
• The Excise Commissioner officer who had granted the license had full authority to withdraw the license under the interpretation of Sec 42 and Sec 43 of the Act.
• It laid down that the principle of ejusdem generis is applied if …. (1) the statute contains an enumeration of specific words; (2) the subjects, of the enumeration constitute- a class or category; (3) that class or, the category is not exhausted by the enumeration; (4) the general term follows the enumeration and (5) there is no
indication of a different legislative intent…..”
• It also stated that as trade and business are considered under a special category therefore it cannot be considered under Article 14 stating the freedom of trade and business.
These observations were considered to be conforming to the facts that were made during the legal proceeding in the apex court. The Supreme Court stated in its judgment that there was no scope for the appellant to challenge the decision made by the Judicial Commissioner under Art. 136. The court conferred to the observation made by the JC thus the appeal was dismissed.

Case analysis

• This particular case gave a clear interpretation of the rule of ejusdem generis. In the aforesaid case, the plaintiff questioned the power of the Excise Commissioner to withdraw the license. The contention made by the plaintiff was that the interpretation of “any cause other than” in Sec 43 had an arbitrariness that challenged the expression.
• It should be observed that the rule of interpretation states that the meaning of a certain section or a provision should be understood by keeping the intention of the legislature in mind.
• The numerous clauses of Sec.42 cannot be easily construed as constituted by one class or group.
• In the order passed by the Hon’ble court, it states that Liquor business having been governed under special regulatory laws and excise privilege cannot be considered under Art.14 as it may be pointed out, that it forbids class legislation but reasonable classification does not come within the prohibition. Thus the Excise authority has reasonable power to make a decision regarding this subject matter.

Conclusion

Interpretation of Statutes is important as these remove the ambiguity in construing the meaning that confers the object of the Act passed by the government. It is the rightful duty of the court to interpret and understand the purpose of the provisions and the words in the provision, to impart justice and fairness to the public. This case gave a vivid understanding of the applicability of an important principle.

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Birla Institute Of Technology Mesra Ranchi Vs. Yamini Shukla And Ors.

FACTS:

In this case, the respondent who has filed an appeal before the high court of Allahabad against Birla Institute of Technology Ranchi had applied for the entrance exam of the MCA course of the same institute and a call letter was issued to her implying that she has passed the entrance exam. Soon, a list of candidates who were admitted to the MCA course was displayed on the Notice Board of the Administrative Department of the Institute at Ranchi and her name was missing from that list. She also alleged that the candidates who were placed below her were present on the list put up on the notice board. The respondent could not present the graduation certificate and suspects that it was the reason she was not given admission but stated that it should not have been a reason for rejection as it was not deemed compulsory.

ISSUE:

Article 14 and Article 226 of the Indian Constitution.

PETITIONER CONTENTION:

It was contended by the petitioner that the applicant did not possess the requisite qualification at the relevant time for admission to the MCA course and also argued that it was a prerequisite that the petitioner should have cleared the qualifying examination before appearing for the interview. Since she failed to obtain the required certification her application was rejected.

RESPONDENT CONTENTION:

The respondent contended that, she never received any information about the compulsory requirement of mark-sheet and it should have been written in the brochure or conveyed to her. Also, a student with the same circumstances was admitted in the same college recently and she was allowed with the condition that her mark sheet be provided soon. So if the institute allowed the other candidate to take the admission and why was the respondent not allowed the same. It is further clarified that at the time of the interview, the petitioner knew that no mark sheet was submitted by the respondent and the college had full knowledge of it. No objection was taken by the college at that point.

JUDGEMENT:

The bench of Justice Brijesh Kumar and Justice K.C. Bhargava said that:

“According to two clauses of Art. 226 of the Constitution it is clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution which gives the fundamental rights. It can also do so if the cause of action, (wholly/partly), had risen in relation to which it exercises jurisdiction”.

The court said that it has some arbitrary power to take decisions on such issues and mentioned that since it is a specialized course, the authorities concerned must always endeavor to select the most suitable and meritorious persons. Lastly, the court declared that the respondent is to be admitted in the college with reasonable facilities to cover the lost period of the semester and the appeal by the petitioners be dismissed.

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Chennai Hoardings Associations Vs The Secretary To Government Of Tamil Nadu

FACTS:

In this case, the petitioners- Chennai Hoarding Association filed a writ petition in the High court of madras against a law which did not allow the municipal corporations to place hoardings in the land which did not belong to them, which meant that the organisations or association who did the work of erecting hoardings had lost their business completely as their rights were taken away by the above mentioned amendment of the law. The petitioner had the concern that this was taking away his constitutional right of practicing any trade he wants as this amendment was not allowing him to do so and it was a violation under Article 19 of the Indian Constitution. 

ISSUE:

Whether mentioning “Belonging to corporation” is a violation of article 14 under the Constitution of India and whether it is a violation of Article 19 of the Indian Constitution by not allowing the petitioner to practice any trade?

PETITIONER CONTENTION:

The petitioner contended that the amendment which was made in the Section 410-A of the Coimbatore City Municipal Corporation Act, 1981 does not hold any rational value as the amendment itself is illogical as it prevents the placing of hoardings in any building wall, structure or any land which does not belong to the municipal corporation and which is visible to the public eye. The petitioner further said that the extent of powers that are of privilege to the Municipal Corporations and Municipal Bodies is enough to protect any given hazard or environmental violation or being contrary to the ambience of a town and city.

RESPONDENT CONTENTION:

The respondent contended that, it would help in keeping track of the hoardings put up and regulates the whole process, there is not restriction of trade as alleged by the Chennai Hoarding association as it does not stop them from conducting their trade and business. The respondent further said that the amendment was made for a valid reason and there are no irregularities in it., they said that the amendment defines only the places where hoardings can or should be set up for advertisement, which is in purview with the policy that was adopted after consulting experts and after examining such material that was relevant for the particular purpose.

JUDGMENT:

The bench said that “There is no rationality in totally excluding private land or State government land or otherwise the land belonging to the Central government like the Railways. The choice to grant licence or otherwise is still there and any violation of the restrictions imposed can still be a matter of application by the municipal corporation.” Further the court emphasized that only the Phrase “belonging to the corporation” is a violation of article 14 of the Indian Constitution and that should be removed by the Chennai Hoarding Association, and concluded that the ban should be lifted but with the exception that they cannot be permitted to put up hoardings in land which they are not permissible to do so.

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INTRODUCTION

Citizenship signifies the relationship between the person and the country. Each country grants citizenship to a foreigner who is residing in a country for a specific time. Some nations grant dual citizenship and some single citizenship. The citizenship grants permission to the person to live legally in the country. There are various rules and regulations under which a person is granted citizenship of the country he/ she is residing.

       Citizenship in India is under the Union List of Constitution of India. India follows the rule of single citizenship. The Citizenship of India is governed under different laws such as the Citizenship Act, 1955, Foreigners Act, 1946, and  Passport (Entry into India), 1920. Earlier, there were two principles based on which the citizenship was granted: jus soli– based on birth and jus sanguinis-on the basis of blood relations. After the enactment of the Citizenship Act, 1955, a person can apply for Indian citizenship in five ways: by birth, by registration, by descent, by naturalisation and by incorporation of territory in India. There were many amendments made to this law but the Amendment made in 2019 created a new history in the area of law. 

In December 2019, Home Minister Amit presented the Citizenship Amendment Bill, 2019 in the Parliament stating that citizenship will be granted to the illegal migrants who entered India on or before 31^st December 2014. The illegal migrants who were Hindu, Sikhs, Buddhists, Jains, Christians, and Parsis from Muslim majority countries Bangladesh, Pakistan, and faced religious persecution in these three countries will be granted Indian citizenship. Both the Houses of Parliament had passed the Bill and went for the assent of the President. On 12^th December 2019 gave the assent for the Citizenship Amendment Bill, 2019, and turned into a Citizenship Amendment Act, 2019. The amended Act included only the non-Muslim minority people and neglected the Muslim minority people though Muslim is the largest minority group in India.  Amit Shah also announced the application of the National Registry of Citizens (NRC) in the country. The Government of India will maintain the NRC of the country. Amit Shah stated that the deadline for NRC India will be before the 2024 elections. The main aim of the implementation of NRC is to filter out the citizens of India and deport the illegal migrants from the country so that citizens can use resources of India.

NATIONAL UNREST IN INDIA

There was national unrest in the country soon after the enactment of the Citizenship Amendment Act, 2019. The people of India showed unity by protesting against the Government and CAA. People especially the youths came on the streets in cities, towns, and villages for protesting against the law. The citizens believed that the law is unconstitutional and it is violating Article 14 of the Indian Constitution. Many public and private properties were damaged and destroyed, people were injured and some died during these riots. Leaders of various religious communities led many riots and protests in different parts of the country. There were many rallies conducted by the opposition political parties. The tension in the country rose after a few weeks due to the riots, the police officers were also not able to control the riots in the state. The majority of the riots took place in the capital of India. The police officers had to use tear gas to bring the situation under control in many states. The condition was so worse in Delhi that the Government declared an internet shutdown in the Union Territory, many Metro stations were closed in Delhi. Section 144, CrPC was invoked in the Red Fort area to stop the protest against CAA. It was observed that the condition in Delhi was worse than the Emergency in India. The protests continued for a few months, the Delhi police came up with the decision to arrest the anti-CAA activists and file FIR against them. On 14^th December 2019, a group of local women started a protest against CAA in Shaheen Bagh, Delhi. A large number of people joined into this protest within ten days protest increased in 1 km. The protestors included children, parents, mothers, and youths. The sit-in protest continued for many months and was observed as the longest protest in modern India.  

During all the protest, there were many petitions were filed in the Supreme Court challenging the Citizenship Amendment Act, 2019 and stating that it is unconstitutional. In January, the Supreme Court heard more than 140 petitions regarding the matters of the controversial Act. 

MISCONCEPTIONS ABOUT CAA AND NRC

 Many protests and rallies took place after the enactment of the Citizenship Amendment Act, 2019. The law created a fear in the minds of the Indian Muslims that they will be deported from the country. There were many questions and confusion among the Indian citizens regarding CAA, NRC, whether they are related to each other, will affect any Indian citizens, and many other queries. Therefore, the Ministry of Home Affairs released all the answers and cleared all the doubts regarding the law.

• What is Citizenship Amendment Act, 2019 (CAA), and NRC?

All the illegal non-Muslim migrants who are residing in India from three countries Bangladesh, Afghanistan, and Pakistan on or before 31^st December 2014 will be granted Indian citizenship under the new law. 

National Register of Citizens is an official record of the Indian citizens in the country and deport the illegal migrants back to their country. 

• Will Indians be affected by CAA?

None of the Indian citizens will be affected by CAA irrespective of the religion. Indian citizens will enjoy their fundamental rights. 

• Why does CAA include only non-Muslims?

The CAA includes non-Muslims who faced persecution in the three countries viz. Bangladesh, Pakistan, and Afghanistan and entered India without a visa or any other legal document on or before 31^st December 2019. The law does not apply to any other foreigner as well as Muslims from another country.

• Will illegal Muslims will be deported back to their country?

The CAA does not speak about the deportation of any illegal migrants from other countries. The deportation will take place under the two laws Foreigners Act, 1946, and Passport (Entry into India), 1920. CAA only states about granting citizenship to migrants of six religions from the three countries. 

• Can Hindus facing persecutions in other than three countries can apply for citizenship under CAA?

Hindus facing persecutions in other countries except the three countries cannot apply for citizenship under CAA. They have to apply for citizenship with the usual process as per the laws. They will not get preference under the Citizenship Amendment Act, 1955, even after CAA.

• Is there a relation between CAA and NRC?

The Government stated that there is no link between CAA and NRC. NRC is a part of the Citizenship Act, 1955 since December 2004. Also, there are certain specific statutory rules of 2003 to operationalise these legal provisions. They govern the process of registration of Indian citizens and grand them a national identity card.

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Ajoy Debbarma v. State of Tripura (SC)

Facts: 

In the state of Tripura advertisements for recruitment to the posts of teachers were issued in the years- 2002, 2006 and 2009, the qualifications criteria for these posts were kept low to attract more applicants which led to the State of Tripura appointing 10,323 teachers between 2010-2014, many writ petitions were filed before the Guwahati High Court challenging the appointments on various grounds. The High Court in what is known as the Tanmoy Nath case, held that the appointments were contrary to the guidelines issued by the National Council for Teacher Education (NCTE) Act, 1993 and some other relevant provisions, they were held to arbitrary, illegal and the selections were found to be illogical and backed by favouritism and nepotism. The High Court criticized the manner in which the interview board made selections and stated that in interview-based selections there should be more transparency, guidelines are to be issued on how the candidates are to be marked, proper record should be maintained, etc which was not followed in the present case. The High Court to ensure that children’s education is not severely impacted directed the teachers whose selection was set aside to continue working in their present posts till 31-12-2014 (end of academic session), the state was directed to complete fresh selection of teachers in all categories by 31-12-2014 which was to be done in accordance with the New Education Policy (NEP) the state was to frame within two months. Appeal against the Tanmoy Nath case decision were filed before the Supreme Court who rejected the same in its order dated 29-03-2017 however issued certain modifications in the directions issued in para 123 of the High Court judgement such as the directing the state to frame the NEP by 30^th April 2017, advertisements for filling up vacancies to be issued by 31^st May 2017, fresh selections to be completed by 31^stDecember 2017 among other things. The State Govt. in 2017, created 12,000 non-teaching posts in Group-C category which led to the filing of a contempt petition before the apex court who in its order dated 4-10-2017 stated that it found prima-facie merit in the allegations and restrained the sate of Tripura from filling up the 12,000 new posts and adjourned the matter, when it was heard again the State Govt. assured the court that its object was to continue in service all those whose appointments were terminated and that only after completing the fresh selection of teachers they would go ahead with the selections for the non-teaching staff posts, the court ordered the State govt. to file an affidavit comprising of the court’s direction after which the contempt proceeding was dismissed. The services of the ad-hoc teachers were finally terminated at the end of 2019-2020 academic session; some of the teachers appointed in 2010-2014 approached the High Court who was to consider if their writ petitions to reopen the issues decided by it in the Tanmoy Nath case can be allowed. The apex court in its order dated 29-03-2017 had observed that the termination of teachers was illegal as it violated the principles of natural justice as they were not made parties nor issued notice to the proceedings protecting their services and questioned if the memorandum extending their services on ad-hoc basis and rejecting them representation should be quashed or not, however the High Court observed that information regarding the same was widely circulated through print (newspapers) as well as electronic media throughout the stated. The High Court dismissed the writ petitions on the grounds that it required review of its own judgment in the Tanmoy Nath case which would be illegal, an abuse of power and gives rise to doctrine of merger, this decision of the High Court dated 3-10-2019 is challenged before the Supreme Court by Special Leave Petition.

Issues:

1. Whether the termination of teachers was illegal, and if they will receive additional advantages for selection in the fresh selection process.
2. Whether the alternative employment offered by the State of Tripura is degrading for the teachers.

Legal Provisions:

• Constitution of India articles 14 and 16.

Petitioner’s Contention:

The petitioner’s contended that some of the teachers terminated after the academic session of 2019-2020 are eligible and qualified to be appointed as teachers and they may miss out on this opportunity as they may not fall within the prescribed age-bracket, they prayed for relaxation of age-bar for such teachers. On an application to file additional documents was permitted according to which there were 20,165 vacant posts of teachers in the state out which only 4300 were appointed in various categories, in light of these vacancies the petitioner’s stated that the terminated teachers be re-employed. They contended that the alternative employment for terminated teachers will not consider their past service, they will have to start from the ground up in the new job and the employments offered in Group-C/ Group-D categories will be degrading for the teachers. Some teachers wished to be employed in the vacant posts of teachers, some stated employment in Group-C/Group-D category will be a degradation while some others were willing to accept such employment.

Respondent’s contention:

The respondent contented that the teachers terminated at the end of the academic session had participated in the fresh selection process with the State Government affording them age-relaxation and was also planning to provide alternative employment to others. They stated that the State Govt. was taking necessary steps as per the court’s direction, on which the apex court asked them to submit an affidavit, which mentioned that in compliance of the court orders the state govt. had issued advertisements on 27-05-2017 for filling up vacancies, age-relaxation provided to teachers who participated in 2010-2014 recruitment process, it also sated the 10,618 vacant posts created in different departments under Group-C/Group-D categories for which the State Govt. seeks permission along with permission for providing age-relaxation for appointments in theses posts. The respondents further contended that since the High Court in Tanmoy Nath case had held the selection and appointments as illegal and arbitrary, the past service of such teachers cannot be recognised and that the State Govt. took adequate measures to provide them alternative employment with age-relaxation. They also stated that the figure of 20,165 vacant posts is incorrect as it also takes into account the 12,000 posts in Group-C/Group-D category the State Govt. attempted to create in the year 2017.

Observations of the Court:

The court accepted the findings of the court in the Tanmoy Nath case and dismissed the appeals arising therefrom. It stated that the service of the ad-hoc teachers which was extended numerous times now stands terminated. The State of Tripura is directed to conduct the selection process as per the directions in the Tanmoy Nath case whereby the concerned candidates can participate in with age-relaxation which is afforded to the state in all selections till 31-03-2023. The court observed that since the selection and appointments were found to be illegal and illogical, the candidates cannot be given any other advantage and the alternative employment being offered by the State Govt. is by no means degrading but is sought to provide relief to those who do not succeed in selection to the teacher posts, the court does not view it as a degradation.

Judgement:

The appeal was dismissed without any order to costs.

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