-by
Justice Markandey Katju
The Fundamental Rights and Directive
Principles in the Indian Constitution and the case law thereon have been
discussed in detail in various books e.g. Basu’s ‘Shorter Constitution of
India’, etc. It is therefore not necessary to discuss the same again. What will
be discussed here are some specific issues relating thereto, particularly in
cases which I decided.
1. Preventive Detention
Article
22 (3)(b) of the Indian Constitution specifically permits preventive detention.
Preventive
detention permits the concerned authorities to detain a person in jail for a
specified period without a regular trial. It is therefore an anathema to
freedom loving people. From the time of issue of the Magna Carta it is a fundamental
requirement of the rule of law that a person cannot be kept in jail except
after giving him an opportunity of hearing in accordance with the criminal
procedure code. Even if a person is arrested after an offence he has a right to
apply for bail, and to get a fair trial. Preventive detention is therefore like
the lettres de cachet which the French kings and aristocrats used to issue to
put people in jail without trial. Voltaire was put in the Bastille in this
manner, and so was Dr. Manette, the fictional character in Charles Dickens’s
novel, ‘A Tale of Two Cities’.
In
cases of preventive detention no offence is proved, and the justification of
such detention is suspicion or reasonable probability. There is no conviction
which can only be warranted by legal evidence. Preventive detention is often
described as a ‘jurisdiction of suspicion’.
In
contrast to a regular trial, in preventive detention no lawyer is permitted,
and the detenue is not allowed to present his witnesses or cross examine the
witnesses against him. All that he is allowed is making a representation
against the detention order, which is decided by an Advisory Board. But without
the right to a lawyer, right to present his witnesses, and right to cross
examine the witnesses against him (which is necessary to test the veracity of
the prosecution witnesses) how will he get a fair hearing?
It
is said that preventive detention is preventive not punitive. But for the detenue
that makes no difference, as he is incarcerated without a fair trial, which in
substance amounts to a punishment.
Preventive
detention laws do not exist in democracies such as U.K. or U.S.A. (except
during wartime). In India, however, they exist even during peacetime.
I
have always held strong views in favour of freedom (see my article ‘The
Importance of Liberty and Democracy in India’ on my blog
justicekatju.blogspot.in) . Hence I have always been opposed to preventive
detention.
However,
since preventive detention is permitted by the Indian Constitution, it cannot
be held to be ipso facto illegal. But it can certainly be confined to narrow
limits, and that is what a three Judge bench over which I presided, Rekha vs.
State of Tamil Nadu, 2011, did.
Rekha’s
case
Article 21 gives the right to life and
liberty to all persons. In Rekha’s case we held that Article 22 (3)(b), which
permits preventive detention, must be held to be an exception to Article 21,
and it cannot ordinarily nullify the full force of the main rule, which is the
right to liberty in Article 21.
We
observed: “Article 21 is the most important of the fundamental rights
guaranteed by the Constitution of India. Liberty of a citizen is a most
important right won by our forefathers after long, historical and arduous
struggles. Our Founding Fathers realized its value because they had seen during
the freedom struggle civil liberties of our countrymen being trampled upon by
foreigners, and that is why they were determined that the right to individual
liberty be placed on the highest pedestal”. We further observed: “Therefore we
must confine the power of preventive detention to very narrow limits, otherwise
the great right to liberty won by our Founding Fathers, who were also freedom
fighters, after long, arduous, historical struggles will become nugatory.”
In
Rekha’s case (supra) the allegations against the detenue was that he, and the co-detenues,
used to collect expired pharmaceutical drugs, which used to be dumped by
medical shops in Chennai city and its suburbs at a dump yard. They then
tampered with the original labels and printed and pasted fresh labels to make
it appear as if they were not expired drugs, and these were then sold to the
public.
Criminal
prosecutions under various provisions of the Indian Drugs and Cosmetics Act,
1940 and the Indian Penal Code were initiated against the detenue, and while
these were going on, preventive detention orders under the Tamil Nadu
Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Forest
Offenders, Goondas etc Act 1982, a preventive detention law, were served on
them.
A
habeas corpus petition filed by a wife of one of the detenues was dismissed by
the Madras High Court, against which judgment an appeal came to the Supreme
Court.
We
allowed the appeal and set aside the detention order. A new principle was laid
down by us in this decision as follows:
“Whenever
an order under a preventive detention law is challenged, one of the questions
the court must ask in deciding its legality is: Was the ordinary law of the
land sufficient to deal with the situation? If the answer is in the
affirmative, the detention order will be illegal.”
In
Rekha’s case the court observed that the relevant provisions in the Drugs and
Cosmetics Act and Indian Penal Code were sufficient to deal with the situation,
and hence the preventive detention order was illegal.
No
doubt a Constitution Bench of the Supreme in Haradhan Saha vs. State of West
Bengal (1975) 3 S.C.C. 198 had held that even if a person is liable to be tried
in a criminal court for commission of a criminal offence, or is actually being
so tried, that does not debar the authorities from passing a detention order
under a preventive detention law even on the same allegations. However, we held
that this observation in Haradhan Saha’s case, to be understood correctly, must
be construed in the background of the constitutional scheme. We held that if a
person is liable to be tried, or is actually being tried for a criminal
offence, but the ordinary law of the land (the I.P.C. or other statute) was unable to deal with the situation, only
then can a preventive detention order be validly passed. Hence we held in
Rekha’s case that the observation in para 34 of Haradhan Saha’s case that even if
a criminal case is going on against a person, a preventive detention order can
be passed on the same allegations, cannot be regarded as an unqualified
statement.
Deepak
Bajaj vs. State of Maharashtra, 2008
In
this case the petitioner approached the court challenging a preventive
detention order before he had been arrested, and the question before us was
whether such a petition at the pre-execution stage could be entertained?
In
Addl. Secretary vs. Alka Subhash Gadia, 1990, (1992) S.C.C. Suppl (1) 496 a
three Judge Bench of the Supreme Court had mentioned 5 grounds on which a
habeas corpus petition against a preventive detention order could be
entertained at the pre-execution stage viz. (1) The order was not passed under
the Act under which it was purported to have been passed (2) It was sought to
be executed against a wrong person (3) It was passed for a wrong purpose, (4)
It was passed on vague, extraneous or
irrelevant ground, and (5) the authority which passed it had no authority to do
so. This decision was followed in other decisions of the Court.
In
Deepak Bajaj’s case we held that the 5 grounds mentioned in Alka Subhash
Gadia’s case were illustrative and not exhaustive. We observed: “If a person
against whom a preventive detention order has been passed can show to the court
that the detention order is clearly illegal why should he be compelled to go to
jail? To tell such a person that although such a detention order is illegal he
must yet go to jail although he will be released later is a meaningless and
futile exercise”.
We
held that if a person is sent to jail then even if he is subsequently released
his reputation may be irreparably tarnished. The reputation of a person has
been held by the court to be a facet of his right to life under Article 21.
2.
Closing
Slaughterhouse on Paryushan
I
have sometimes been asked which was the most difficult case I found to decide,
and my answer usually is: Hinsa Virodhak Sangh vs. Mirzapur Moti Kuresh Jamaat,
2008.
Usually
I did not have difficulty in deciding cases, because having spent 40 years in
the legal world, 20 years as a lawyer and 20 years as a Judge, I am broadly
conversant with legal principles. However, in this case I found it very
difficult to make up my mind. The Senior Judge on the bench, Justice H.K. Sema,
had asked me to write the judgment after we had heard arguments and reserved
the judgment, but for several weeks I just could not decide what view to take.
The
facts of the case were that the Ahmedabad Municipality in Gujarat had for
several years passed resolutions for closing down the Municipal slaughterhouse
during the 9 days Jain Paryushan festival. Since goats, lamb and other animals
could legally be slaughtered only in the Municipal slaughterhouse (for
sanitation, hygiene, etc) the result was that for 9 days in a year people of
Ahmedabad had to be vegetarians.
The
butchers association of Ahmedabad challenged this resolution before the High
Court on the ground that it violated their fundamental right of freedom of
trade and business guaranteed by Article 19 (1) (g) of the Constitution. The
residents of Ahmedabad pleaded that this resolution compelled them to become
vegetarians for 9 days in a year, and this violated their right of privacy
which had been held to be part of Article 21 in several decisions of the
Supreme Court.
Jains
are a community who follow the teachings of Lord Mahavir and other ‘Tirthankaras’.
They believe in Ahimsa or non-violence, and are strict vegetarians.
The
Paryushan festival is perhaps the most important one for Jains. During the 9
days period of the festival Jains do fasting and other spiritual acts e.g.
recitation of their scriptures.
There
is a large Jain community in Western India e.g. Gujarat, Rajasthan, Western
Madhya Pradesh, Delhi etc. For several years the Ahmedabad Municipality had
closed its slaughterhouse during Paryushan, and this was now challenged. The
High Court allowed the writ petition, and the matter came up on appeal before
us in the Supreme Court.
The
petitioners before the High Court (respondents before us) alleged that the
impugned resolutions of the Ahmedabad Municipality closing down the Municipal
slaughterhouse during Paryushan was an unreasonable restriction on the rights
of the butchers of Ahmedabad (the writ petitioners) to carry on trade and
business in livestock, mutton etc. It was also a violation of the right of non
vegetarians to eat meat. What one eats
is part of one’s right to privacy, which by judicial interpretation has been
included in Article 21 of the Indian Constitution.
As
mentioned above, for several weeks after reserving judgment in the case I could
not make up my mind what view to take. There was certainly a case in support of
the contentions of the writ petitioners (the butchers and non-vegetarian
section of society), which had been upheld by the High Court. After all, it is
one’s personal business what one eats. Why should a non-vegetarian be compelled
to become a vegetarian, even if for 9 days? Nobody was compelling the Jains or
other vegetarians to become non-vegetarians. Why then should it be vice versa?
This
argument at first appealed to my mind. I am a strong votary for freedom, and
the impugned resolution seemed to violate the rights of the butchers as well as
non-vegetarians.
However,
ultimately I decided to uphold the validity of the resolution and reverse the
judgment of the High Court.
What
persuaded me to do so were these factors:
(1)
The restriction was only for a short period
of 9 days. Had it been for a longer period, say, for several months, I would
certainly have held it to be violative of Articles 19 (1) (g) and 21 of the
Constitution.
(2)
There is a large Jain community in Western India, including Ahmedabad, and in a
country like India with such tremendous diversity of religions, castes,
languages, ethnic groups, etc we must respect the feelings of all communities.
(3)
The restriction was not a new one, but had been imposed every year for several
decades. Reference was made in the judgment to Emperor Akbar and his respect
for the Jains.
Taking all these considerations
cumulatively we upheld the restriction as being a reasonable one. We referred
to the Constitution Bench decision of the Supreme Court in State of Madras vs.
V.G. Row, 1952 in which the broad tests for determining reasonableness were
indicated. One of the tests laid down therein was whether the restriction was
excessive. In the present case we noted that the closure of the slaughterhouse
was only for a short duration of 9 days in a year, and hence it was not
excessive. We also referred to the decision of the Supreme Court in Government
of Andhra Pradesh vs. P. Laxmi Devi, 2008 in which it was held that the court
should exercise judicial restraint while judging the constitutional validity of
statutes, and the same principle would apply while adjudicating the
constitutional validity of delegated legislation.
3.
Mere
Membership of Banned Organization
In
certain statutes like the Terrorist and Disruptive Activities Act, 1987 (called
TADA) or the Unlawful Activities (Prevention) Act, 1967 mere membership of an
organization banned under that Act is a crime. Two cases came up before a bench
of the Supreme Court of India which I was the senior member relating to TADA.
These cases were Arup Bhuyan vs. State of Assam and Sri Indra Das vs. State of
Assam, both decided in 2011. The appellants in these cases were convicted as
they were members of ULFA, which was a banned organization under TADA.
We
held in these cases following the decision in State of Kerala vs. Raneef, 2011
that mere membership of a banned organization will not incriminate a person
unless he resorts to violence or incites people to violence or does an act
intended to create disorder or disturbance of public peace by resort to
violence.
In
Arup Bhuyan’s case we relied on the decision of the U.S. Supreme Court in Clarence
Brandenburg Vs. State of Ohio, 395 U.S. 444 (1969) in which the U.S. Supreme Court
held that mere advocacy or teaching the duty, necessity, or propriety of violence as a means of accomplishing
political or industrial reform, or publishing or circulating or displaying any
book or paper containing such advocacy, or justifying the commission of violent
acts with intent to exemplify, spread or advocate the propriety of the
doctrines of criminal syndicalism, or to voluntarily assemble with a group
formed to teach or advocate the doctrines of criminal syndicalism is not per se
illegal. It will become illegal only if it incites to imminent lawless
action. The statute under challenge was hence held to be unconstitutional
being violative of the First and Fourteenth Amendments to the U.S.
Constitution.
What
has to be noted is that Section 3 (5) of TADA makes mere membership of a banned
organization a crime. However, in Arup Bhuyan’s case (supra) we held that
Section 3 (5) cannot be read literally, otherwise it will violate Articles 19
and 21 of the Constitution. It is well settled that the Court should try to
take a view which upholds the Constitutional validity of a statute, even if
that requires reading down the plain language of the statute. In Sri Indra Das’
case we referred to several decisions where the language of a statute had been
read down by the court to sustain its constitutional validity.
In
Sri Indra Das case we referred in paragraphs 8 to 25 to various decisions of
the U.S. Supreme Court which held that mere membership of a banned organization
cannot be held to be a crime. In Scales vs. U.S. 367 U.S. 203 (229) a
distinction was made between a passive member and an active member. In that
decision Justice Harlan observed that there must be clear proof that the
accused specifically intended to accomplish the aims of the organization by
resort to violence. A person may be foolish, deluded or perhaps merely
optimistic, but that would not make him a criminal.
In
Noto vs. U.S. 367 US 290 Justice Harlan
observed:
“The
mere teaching of Communist Theory, including the teaching of the moral propriety
or even moral necessity for a resort to force and violence, is not the same as
preparing a group for violent action.”
In
Communist Party vs. Subversive Activities Control Board, 367 U.S.1 (1961) Mr.
Justice Hugo Black in his dissenting judgment observed:
“The
first banning of an association because it advocates hated ideas, whether that
association be called a political party or not, marks a fateful moment in the
history of a free country. That moment seems to have arrived for this country.
This whole Act – embarks this country, for the first time, on the dangerous
adventure of outlawing groups that preach doctrines that nearly all Americans
detest. When the practice of outlawing parties and various public groups
begins, no one can say where it will end. In most countries such a practice
once begun ends with a one party government”.
In
Whitney vs. California, Mr. Justice Brandeis, the celebrated Judge of the U.S.
Supreme Court, in his concurring judgment, which really reads like a dissent, observed:
“Fear
of serious injury cannot alone justify suppression of free speech and assembly.
Men feared witches and burned women. It is the function of free speech to free
men from the bondage of irrational fears. To justify suppression of free speech
there must be a reasonable ground to believe that the danger apprehended is
imminent. The wide difference between advocacy and incitement, between
preparation and attempt, between assembling and conspiracy, must be kept in
mind.”
In
India many people may join a banned organization only because they believe in
the ideology of that organization, but they may not be doing, or preparing to
do, or inciting or organizing, any act of violence. They are only passive, not
active members, and hence they cannot be convicted.
4.
The
Haj Subsidy case
In
Praful Goradia vs. Union of India, 2011, the grievance of the petitioner is
that he is a Hindu, but he has to pay taxes part of whose proceeds go for the
purpose of the Haj pilgrimage, which is only done by Muslims. His argument was
that Articles 14 and 27 of the Constitution were violated.
Under
the Haj Committee Act, 1959 (replaced by Haj Committee Act, 2002) pilgrims
selected by the Haj Committee for going for Haj are given a subsidy by the
Government of India in the air fare. It was submitted that the burden of this
subsidy fell on non-Muslims too.
Article
27 of the Constitution states: “No person shall be a compelled to pay taxes,
the proceeds of which are specifically appropriated in payment of expenses for
the promotion or maintenance of any particular religion or religious
denomination.”
The
court held in Praful Goradia’s case
that there was no violation of Article 27. The court observed:
“In
our opinion Article 27 would be violated if a substantial part of the entire
income tax collected in India, or a substantial part of the entire central excise
or the customs duty or sales tax or any other tax collected in India were to be
utilized for promotion or maintenance of any particular religion or religious
denomination.” It was also held that if only a very small part of any tax was
used for this purpose there would no violation of Article 27.
The
petitioner had not made any allegation that a substantial part of any
particular tax was used for subsidizing the Haj pilgrimage.
It
was pointed out by the government counsel that the government incurs expenditures
for Kumbh and Magh Melas, Mansarovar pilgrimage, etc. for Hindus, visits of
Sikhs to gurudwaras in Pakistan, etc. but these were small expenditures
compared to the total tax collected.
The
court observed that we must not be too rigid in these matters, and must give
some free play to the joints of the State machinery. A balanced view had to be
taken, and one could not say that if even a single paisa of government money is
spent for a particular religion there would violation of Article 27. As observed
by Justice Holmes of the U.S. Supreme Court, in Bain Peanut Co. vs. Pinson, 282
U.S. 499 (1931), “The interpretation of Constitutional principles must not be
too literal. We must remember that the machinery of the government would not
work if it were not allowed a little play in its joints.”
The
court also held that there was no violation of Article 14 and 15 of the
Constitution. Expenditures were incurred by the governments, Central and State,
for other religions too. Article 14 could not be interpreted in a doctrinaire
or dogmatic manner. It is not prudent or pragmatic for the court to insist on
absolute equality when there are diverse situations and contingencies. The
court also relied on the decision in Government of Andhra Pradesh vs. P. Laxmi
Devi, 2008 in which the court advised great restraint while deciding the
constitutionality of a statute.
5.
Right
of Muslims to Build Mosques
When
I was a Judge in the Allahabad High Court a petition came up before a division
bench (of which I was the senior member) in Mohd. Sharif Saifi vs. State of
U.P., Writ Petition 43403/1998 decided on 28.1.1999.
The
grievance of the petitioner was that he was not being allowed to build a mosque
on his land, and hence Article 25 of the Constitution was being violated.
Agreeing
with his contention, we allowed the petition and observed:
“This
is a free and secular country. Subject to public order, morality and health,
anybody is entitled under Article 25 of the Constitution to build any house of
worship, whether it is a mosque, church, temple, etc., on his own land or on
anyone else’s land with the consent of that person. Article 25 (1) of the
Constitution states:
“Subject
to public order, morality and heath and to the other provisions of this Part,
all persons are equally entitled to freedom of conscience and the right freely
to profess, practice and propagate religion”.
Hence,
we make it clear that the petitioner is fully entitled to make a mosque on his
own land or on someone else’s land with the permission of that person, and if
he does so the authorities will give him full protection, and take strong
action against anyone interfering with the petitioner’s right. No permission of
the D.M. is required for this.
However,
we would humbly suggest to the petitioner and others concerned that instead of
mosques, temples, etc., the country requires more schools, hospitals, technical
institutions, vocational training institutes, etc., for the country’s
scientific and technological development. Half of the population of the State
is illiterate and a large number of young people wish to get technical training
in order to get employment, and hence it is absolutely essential that there
should be more schools, technical institutes, vocational training institutes,
hospitals, etc., so that the country progresses, and the welfare of the people
is attended to. Hence instead of building temples, mosques, etc., we recommend
to all people (including the petitioner) to consider our suggestion, and follow
it if it appeals to them.
In
this connection we may also mention that Article 51-A (h) of the Constitution
makes it a fundamental duty of all citizens to develop the scientific temper.
However,
we again make it clear that this is only our humble suggestion, and the
petitioner is fully entitled to make a mosque on his own land, or on someone
else’s land with his consent, and the
authorities will give him full protection for doing so”.
6.
Right
of Muslims to Bury their Dead Bodies in their Graveyard
When
I was Chief Justice of the Madras High Court a writ petition, Mohamed Gani vs.
Superintendent of Police, Writ Petition 5202/1998 (decided on 14.7.2005) was
heard by a bench of myself and Justice Kalifulla (who is now a Judge of the
Supreme Court). The judgment can be seen online.
The
facts of the case were that in a certain village in the Dindigul district of
Tamil Nadu certain Harijans were not allowing the Muslims of the village to
take their dead bodies for burial through a certain public street.
We
allowed the petition, holding that this is a free, democratic and secular
country. In view of the tremendous diversity in our country, the only policy
that can work is secularism and equal respect to all communities.
We
held that the right to bury dead bodies in accordance with one’s religious
rites and customs is a part of Article 25 of the Constitution. One could
understand an objection to taking bodies through someone’s private land, but
here the bodies were sought to be taken through the public street. Hence there
could be no valid objection, and we directed the administration that they
should ensure that there was no obstruction.
In
paragraph 19 of the judgment we further observed:
“From
a perusal of the facts on record it appears that in village Balasamudram there
are about 5000 families, and of them, 1000 families are Muslims. Thus Muslims
are a minority in that village. It is the duty of the majority community in any
particular area in our country to protect the minorities, and see to it that
the members of the minority community (whether it is a religious minority or
caste, ethnic or lingual minority) are made to feel secure and live with
respect, and are not harassed in any way. Respect for minorities is a mark of a
civilized people in the modern world. Hence it is absolutely essential that
wherever in any particular place or region in our country any community is in
the minority, the majority community must see to it that the minority community
is made to feel secure and is not oppressed or in any way harassed, but can
live with respect and with equality with others”.
7. Protection to Minorities
Article 25 (1) of the Indian
Constitution states: “Subject to public order, morality and health and to the
other provisions of this Part, all persons
are equally entitled to freedom of conscience and the right freely to
profess, practice and propagate religion.”
I have always been a supporter of the
rights of religious minorities in India, because I firmly believe that a mark
of a civilized society is that minorities therein can live with dignity and
respect.
Christians are only about 2% of the
1.25 billion people in India. In January 2009 a case came up before a bench of
the Supreme Court of which I was a member, in which the allegations were that
Christians in Orissa were being persecuted by right wing Hindu groups. It was
alleged that about 50,000 Christians had fled from their homes, some had been
killed, their houses burnt, and they were living in camps or in the jungle.
During the hearing of the case I
remarked “We will not tolerate persecution of minorities. If the state
government is unable to protect them it should resign. Article 25 of the Indian
Constitution guarantees freedom of religion to all”.
These oral observations had their
effect, and the persecution of Christians in the State stopped, and
compensation was awarded to those whose properties had been destroyed or
damaged.
When I was a Judge of the Allahabad
High Court a case came before me pertaining to some village in U.P. In that
village the majority consisted of Muslims, while the minority were Hindu
Harijans. A Harijan girl was gang raped by some Muslim boys, who were
prosecuted. I awarded the accused harsh punishment, holding that since Muslims
were in the majority in that village it was their duty to see to it that Hindus
could live with dignity and respect, but the accused did just the opposite. In
India Hindus are a majority out of the total population, but they may be a minority
in a specific area. It is the duty of the majority in every specific area to
ensure that the minority lives with dignity and respect. So it is not only Muslim and Christian
minorities whom I have sought to protect, but also Hindus where they are in a
minority in a particular area.
8. Slaughter of Buffaloes
When I was a Judge of Allahabad High
Court a writ petition was filed before me, Banarsi vs. Abdul Ghani, second
appeal 2219/1985 decided on 12.5.1992, by a Hindu praying that the court should
prohibit slaughter of buffaloes. This was shortly before the Muslim festival of
Eid-ul-Zoha or Bakrid.
Ordinarily Muslims slaughter a goat or
lamb on this occasion, but there are many poor Muslims who cannot afford to buy
a goat. It is believed that by slaughtering one buffalo the spiritual benefit
goes to seven Muslims. So seven poor Muslims get together and slaughter one
buffalo, and thus the per head cost is much less than if each of them
slaughtered a goat.
I asked the petitioner’s counsel what
objection did he have to slaughter of a buffalo. He said that buffalo is the
‘sawari’ (carriage) of Lord Yamaraj (the god of death), and hence his religions
sentiments would be hurt and Article 25 of the Constitution violated if
buffaloes are slaughtered.
I asked that since a rat is the ‘sawari’ of Lord Ganesh, so should killing of
mice be prohibited? Similarly, almost every Hindu god had a sawari. Should
slaughter of all these be prohibited?
I held that this is a free and
democratic country, and it is open to a person to slaughter any animal unless
there is a law prohibiting it. The slaughter of cows and bull is prohibited by
the U.P. Prevention of Cow Slaughter Act, 1955, except as permitted by Section
3 and 4 thereof. The killing of wildlife is prohibited by the Wildlife (Protection)
Act. However, there is no law prohibiting slaughter of buffaloes. In fact even
some Hindus e.g. Gurkhas slaughter buffaloes as a ‘bali’. Of course there may
be municipal rules and regulations specifying the place of slaughter, for the
sake of hygiene and sanitation. There may also be municipal rules that the
slaughter should not be done within a certain distance of a place of worship or
a school or college. These were matters which could regulated by the
legislature or municipality, but apart from this there can be no prohibition or
restriction on the slaughter of buffaloes or other animals. Under Article 25 of
the Constitution every person has a fundamental right to freely practice his
religion, but this did not mean that one can force his religious views on
others.
This view was upheld by a division
bench of the High Court in Nisar Ahmed vs District Magistrate Kanpur, CMWP
13695/93 decided on 2.12.1993
9. Sex Workers
There
are possibly millions of sex workers (prostitutes) in our country. These girls
come into the flesh trade not because they enjoy it but because of abject
poverty. They become practically slaves of the brothel owners, and are
pitilessly exploited, and often brutally treated. Once they enter the flesh
trade they became social outcastes for the so called ‘decent’ society. Surely
it cannot be said they enjoy a life of dignity envisaged by Article 21 of the
Constitution.
Buddhadev
Karmaskar vs. State of West Bengal, Criminal Appeal No. 135 of 2010 was a case
which came up before a bench of the Supreme Court of which I was the senior
member. The appellant had brutally killed a sex worker, and we upheld his
conviction. However, having dismissed the appeal, we suo motu converted it into
a P.I.L. for rehabilitating sex workers.
We
were of the view that if sex workers were given some technical training they
could earn their bread through this technical skill, instead of by selling
their bodies. Hence we directed the Central and State Governments to prepare
schemes for rehabilitating the sex workers, and we also set up a Committee,
headed by a senior lawyer of the Supreme Court, to monitor this exercise. The
case is still going on.
10. The Son-of-the Soil Theory
Some
people in one State in India propounded the son-of-the soil (bhumiputra) theory.
They assaulted people of other states and vandalized their property.
When
a case came before a bench of the Supreme Court of which I was a member I
orally observed in court that we cannot permit balkanization of the country.
Article
19 (1) (e) of the Indian Constitution states:
“All
citizens shall have the right – (e) to reside and settle in any part of the
territory of India.”
Thus
it is a fundamental right of a person who is a native of State A to migrate to
State B, and people in State B cannot say that since the person is not a
bhumiputra of State B he is an ‘infiltrator’ and should be driven out. In
practically every State in India there are people who were natives of other
states, but had come there for trade or job opportunities or some other reason.
By virtue of Article 19 (1) (e) they have a fundamental right to migrate to and
settle down in any other state.
India
is one country, and the bhumiputra theory is totally unacceptable.
11. Right of Accused to Counsel
In
Md. Sukur Ali vs. State of Assam, 2011, the Gauhati High Court had dismissed a
criminal appeal in absence of his counsel.
Article
22 (1) of the Constitution states:
“No
person who is arrested shall be detained in custody without being informed, as
soon as may be, of the grounds for such arrest, nor shall he be denied the
right to consult, and to be defended by, a legal practioner of his choice.”
Though
this provision does not clearly say that a criminal case should not be decided
in the absence of the defendant’s counsel, in Md. Sukur Ali’s case we held that
a criminal case should not be decided in absence of the defendant’s counsel,
and in the absence of his counsel the court cannot dismiss his appeal but must
appoint an amicus curiae to appear for the appellant and defend him. The appeal
was hence allowed and the matter remanded to the High Court.
12. Right to Water
The right to water is surely part of
the right to life guaranteed by Article 21 of the Constitution, because one cannot
live without water, and it has been held to be so in certain decisions. But the
reality is that vast areas of our country suffer from water shortage. Hence in
M.K. Balakrishnan vs. Union of India, WP (c) No. 230 of 2001 a bench of which I
was the senior member by our order dated 28.4.2009 directed the Central Government
to form a Water Committee headed by the Union Secretary, Science and
Technology, whose task was to find out by scientific research methods of
solving the water shortage problems in various parts of India. The Water
Committee was accordingly constituted and is doing its work.
13.
Right to grant interim bail
An accused in a criminal case has a
right to apply to the Court for bail. What happens usually in practice, however,
is that when an accused applies for bail he must surrender before the court but
often the court does not decide the bail application the same day but adjourns
the case for a few days to enable the government counsel to get instructions.
In the meantime, the accused has to go to jail. Even if he is later granted
bail and acquitted his reputation may be irreparably tarnished, and the right
to reputation has been held to be part of the right to life guaranteed by
Article 21 of the Constitution (see Deepak Bajaj vs. State of Maharashtra).
Hence in Lal Kamlendra Pratap Singh
vs. State of U.P., 2009 and in several decisions thereafter it was held that
the court has power to grant interim bail pending final disposal of the bail
application. Of course it is the discretion of the court to grant interim bail
on the facts of the case, and it is not bound to do so. But grant of this power
to the court means that a person need not be sent to jail if the court on the
facts thinks that interim bail should be granted.
14. Right to Marry
Once a person becomes a major
according to the Indian Majority Act, 1875 (which is 18 years of age, vide
Section 3) he/she is deemed by the law to know what is in his/her interest.
Hence after crossing the age of 18 years no one can legally prevent a person
from marrying a person of his/her choice.
In Lata Singh vs. State of U.P., 2006
the facts were that the petitioner fell in love with a young man of a different
caste. This very much angered her brothers who started harassing the couple in
various ways, because of which she had to leave Lucknow where she had been
living. In the petition which came up before the Supreme Court in a bench of
which I was a member we observed:
“This is a free and democratic
country, and once a person becomes a major he or she can marry whomsoever he/she
likes. If the parents of the boy or girl do not approve of such inter caste or
inter religious marriage the maximum they can do is that they can cut off
social relations with the son or the daughter, but they cannot give threats or
commit or instigate acts of violence and cannot harass the person who undergoes
such inter caste or inter religious marriage”.
We directed the administration and
police to prevent harassment or violence on such couples, and those who do so
should be criminally prosecuted.
In my view the right to marry a person
of one’s choice is a part of the right to privacy, which has by judicial
interpretation been held to be part of Article 21 of the Constitution.
In Arumugam Servai vs. State of Tamil Nadu, 2011, the Supreme
Court condemned the shameful practice of ‘honour killing’ in some parts of
India, of young couples who enter into an inter caste or inter religious
marriage against the wishes of their parents or other relatives or
caste/community members. We directed criminal prosecution of those who commit
such crimes, and suspension of the administrative or police officers who do not
prevent them.
15. Insulting dalits
In Arumugam Servai’s case (supra) we
held that people should not insult dalits by addressing them as ‘pallan’, ‘parayam’
or ‘paraparayan’ or ‘chamar’ as it hurts their feelings, just as one should not
use the word ‘nigger’ or ‘negro’ for African Americans.
16. Article 14
Article 14 of the Constitution states:
“The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India”
This provision is directed against
inequality (though later by judicial interpretation, in Royappa’s case, 1974
and Maneka Gandhi’s case, 1978 it was also held to be directed against
arbitrariness in state action), and this is a bedrock of a modern
democracy.
Difficulties, however, arise in its
implementation. For instance, it has been held that it does not forbid rational
classification.
In two decisions by a bench of the
Supreme Court of which I was a member the court has clarified some issues
relating to it.
In Transport Dock Workers Union vs.
Mumbai Port Trust, 2010 the appellants filed a writ petition in the High Court
alleging violation of Article 14 on the ground that those Typist-cum-Computer
clerks appointed before 1.11.1996 have to work for six and half hours per day,
whereas those, like the appellants, appointed thereafter have to work for seven
and half hour a day. The reply of the respondents was that due to change in
technology and with introduction of privatization and setting up of private ports
with whom the respondent port had to compete, the respondent decided to have
uniform working hours for the personnel working in the indoor establishment and
outdoor establishment. From the beginning the personnel working in the outdoor
establishment had to work for seven and half hours a day, and hence by a policy
decision it was decided that to bring about uniformity in the duty hours all
personnel working in the indoor establishment were asked to work for seven and
half hours. However, in order to avoid litigation it was decided that the duty
hours of those appointed in the indoor establishment before 1.11.1996 will
remain unchanged, while new recruits had to work for seven and half hours a
day, and it was only on acceptance of this condition that they were appointed.
The court held that there was no
violation of Article 14 since there was a reasonable classification.
The court went into the question as to
what would be a ‘reasonable’ or ‘rational’ classification, and held that one of
the tests (though not the only one) would be: is the classification conducive
to the functioning of modern society? In the modern world businesses have to
face competition. To do so, they may have to have longer working hours and
introduce efficiency, while avoiding labour disputes. Looked at from this point
of view, the classification was held to be reasonable as it made the organization
more competitive and efficient. The court also held that Article 14 could not
be interpreted in a doctrinaire or dogmatic manner. Absolute and inflexible
concepts are an anathema to progress and change. As observed by Justice Holmes
of the U.S. Supreme Court, the machinery of the government would not work if it
were not allowed some free play in the joints. Differential treatment does not
per se violate Article 14. It violates Article 14 only when there is no
conceivable reasonable basis for the differentiation. In view of the complexity
of modern society, it was not prudent or pragmatic for the court to insist on
absolute equality when there are diverse situations and contingencies, as in
the present case.
The second decision, S.C. Chandra vs.
State of Jharkhand, (2007) 8 S.C.C. 279 pertaining to Article 14 relates to the
principle ‘equal pay for equal work’. In Dhirendra Chamoli vs. State of U.P.
(1986) 1S.C.C. 637, the Supreme Court granted to the casual and daily rated
employees the same pay scale as regular employees, as they were doing the same
work. It was subsequently realized that the application of the principle equal
pay for equal work was creating havoc. All over India different groups were
claiming parity in pay with other groups e.g. government employees of one state
were claiming parity with government employees of other States. Fixation of pay
scales is a delicate mechanism which required various considerations including
financial capacity, responsibilities, education qualifications, mode of
appointment, etc., and it had a cascading effect. Hence in subsequent decisions
of the Supreme Court the principle of equal pay for equal work had been
considerably watered down, and it had hardly ever been applied in recent decisions
of the court. Thus, in State of Haryana vs. Tilak Raj, AIR 2003 S.C. 2658 it
was held that the principle applied only if there is complete and wholesale
identity between the two groups i.e. in their mode of appointment, educational
qualifications, responsibilities, nature of work, experience, etc. Even if the
employees in the two groups are doing identical works they cannot be granted
equal pay if there is no complete and wholesale identity, e.g. a daily rated
employee may be doing the same work as a regular employee yet he cannot be
granted the same pay scale. Moreover, even for finding out whether there is
complete and wholesale identity the proper forum is an expert administrative
body, and not the writ court, vide State of Haryana vs. Charanjit Singh (2006)
9 S.C.C. 321. A mechanical interpretation of the principle of equal pay for
equal work creates great practical difficulties. Hence the court should
exercise judicial restraint and not interfere in such an executive function,
vide Indian Drug and Pharmaceuticals Ltd vs. The Workmen (vide parar34).
Fixation of pay or pay scales is an executive function, and the court should not
ordinarily encroach into this domain.
17. Reading Directive Principles
into the Fundamental Rights
Article 37 of the Constitution
specifically states that the Directive Principles of State Policy in the
Constitution are non-enforceable.
However, several decisions of the
Supreme Court have enforced certain Directive Principles by reading them into
certain fundamental rights. Thus, the right to education mentioned in Article
41 has been held to be part of Article 21 of the Constitution, vide
Unnikrishnan vs. State of Andhra Pradesh, AIR 1993 S.C. 2178 in which it was
held that every child is entitled to free education upto the age of 14 years,
and this right flowed from Article 21 of the Constitution. After the age of 14
years the right to education is subject to the limits of economic capacity and
development of the State (by the Constitutional Amendment of 2002 the right was
incorporated in Article 21 A). In effect this decision says that upto the age
of 14 years free education must be given to children whether the State has
the economic capacity or not. In this view correct?
It must be remembered that the
Founding Fathers deliberately made the Directive Principles unenforceable by
courts because India was a poor country and hence may not have the financial
resources to enforce the Directive Principles, however much the state wanted
to. A balanced and pragmatic view was therefore taken by making these Directive
Principles non-enforceable. No doubt it would be wonderful if the Directive Principles
would become a reality, but where are the finances for this? By reading
Directive Principles into the Fundamental Right is one not making Article 37
nugatory?
The Supreme Court has issued several directives
to the government and administrative authorities to implement the Directive
Principles. Thus, in Mukesh Advani vs. State of Madhya Pradesh, AIR 1985 SC
1383 (paragraphs 17 and 21) and Bandhua Mukti Morcha vs. Union of India, AIR
1984 SC 802 the court directed the
government to issue a notification under the Minimum Wages Act for the benefit
of bonded and other exploited labourers. In the same decisions the court set up
a Joint Committee of the Union of India and State Government as a machinery to
supervise and ensure that he poor and needy employees are not exploited by
unscrupulous contractors. In Sheela Barse vs. State of Maharashtra AIR 1983 SC
378 the court directed various steps for extending the benefit of Article 39A
to under trial prisoners. Various other such decisions can be cited.
With respect, I am of the opinion that
these decisions require reconsideration as Article 37 becomes redundant and
nugatory if Directive Principles are made enforceable in this indirect way.
