Supreme Court of India Archives - B&B Associates LLP Law Firm | Lawyers | Advocates Thu, 26 Nov 2020 09:16:15 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.3 https://bnblegal.com/wp-content/uploads/2020/02/cropped-BNB-LEGAL-Favicon-32x32.png Supreme Court of India Archives - B&B Associates LLP 32 32 Joseph Shine Vs Union of India https://bnblegal.com/landmark/joseph-shine-vs-union-of-india/ https://bnblegal.com/landmark/joseph-shine-vs-union-of-india/#respond Thu, 26 Nov 2020 09:14:39 +0000 https://bnblegal.com/?post_type=landmark&p=257948 IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION WRIT PETITION (CRIMINAL) NO. 194 OF 2017 Joseph Shine …Petitioner(s) VERSUS Union of India …Respondent(s) J U D G M E N T Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.) The beauty of the Indian Constitution is that it includes ‘I‘ ‘you‘ and ‘we‘. […]

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]]> IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 194 OF 2017

Joseph Shine …Petitioner(s)
VERSUS
Union of India …Respondent(s)

J U D G M E N T

Dipak Misra, CJI (For himself and A.M. Khanwilkar, J.)

The beauty of the Indian Constitution is that it includes ‘I‘ ‘you‘ and ‘we‘. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the SignaturebNoteVeraifieduty of the Constitution as conceived of. In such a situation, Digitally signed by CHETAN KUMAR Date: 2018.09.27 14:10:12 ItSThe essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity. And, it is time to say that a husband is not the master. Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written. It is advisable to remember what John Stuart Mill had observed:-

“The legal subordination of one sex to another – is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a system of perfect equality, admitting no power and privilege on the one side, nor disability on the other.”1

We are commencing with the aforesaid prefatory note as we are adverting to the constitutional validity of Section 497 of the Indian Penal Code (IPC) and Section 198 of the Code of Criminal Procedure (CrPC).

2. At this juncture, it is necessary to state that though there is necessity of certainty of law, yet with the societal changes and more so, when the rights are expanded by the Court in respect of certain aspects having regard to the reflective perception of the organic and living Constitution, it is not apposite to have an inflexible stand on the foundation that the concept of certainty of law should be allowed to prevail and govern. The progression in law and the perceptual shift compels the present to have a penetrating look to the past.

3. When we say so, we may not be understood that precedents are not to be treated as such and that in the excuse of perceptual shift, the binding nature of precedent should not be allowed to retain its status or allowed to be diluted. When a constitutional court faces such a challenge, namely, to be detained by a precedent or to grow out of the same because of the normative changes that have occurred in the other arenas of law and the obtaining precedent does not cohesively fit into the same, the concept of cohesive adjustment has to be in accord with the growing legal interpretation and the analysis has to be different, more so, where the emerging concept recognises a particular right to be planted in the compartment of a fundamental right, such as Articles 14 and 21 of the Constitution. In such a backdrop, when the constitutionality of a provision is assailed, the Court is compelled to have a keen scrutiny of the provision in the context of developed and progressive interpretation. A constitutional court cannot remain entrenched in a precedent, for the controversy relates to the lives of human beings who transcendentally grow. It can be announced with certitude that transformative constitutionalism asserts itself every moment and asserts itself to have its space. It is abhorrent to any kind of regressive approach. The whole thing can be viewed from another perspective. What might be acceptable at one point of time may melt into total insignificance at another point of time. However, it is worthy to note that the change perceived should not be in a sphere of fancy or individual fascination, but should be founded on the solid bedrock of change that the society has perceived, the spheres in which the legislature has responded and the rights that have been accentuated by the constitutional courts. To explicate, despite conferring many a right on women within the parameters of progressive jurisprudence and expansive constitutional vision, the Court cannot conceive of women still being treated as a property of men, and secondly, where the delicate relationship between a husband and wife does not remain so, it is seemingly implausible to allow a criminal offence to enter and make a third party culpable.

4. We may presently state the nature of the lis.

5. The instant writ petition has been filed under Article 32 of the Constitution of India challenging the validity of Section 497 IPC. A three-Judge Bench, on the first occasion, taking note of the authorities in Yusuf Abdul Aziz v. State of Bombay2, Sowmithri Vishnu v. Union of India and another3, V. Revathi v. Union of India and others4 and W. Kalyani v. State through Inspector of Police and another5 and appreciating the submissions advanced by the learned counsel for the petitioner, felt the necessity to have a re-look at the constitutionality of the provision. At that juncture, the Court noted that:-

“Prima facie, on a perusal of Section 497 of the Indian Penal Code, we find that it grants relief to the wife by treating her as a victim. It is also worthy to note that when an offence is committed by both of them, one is liable for the criminal offence but the other is absolved. It seems to be based on a societal presumption. Ordinarily, the criminal law proceeds on gender neutrality but in this provision, as we perceive, the said concept is absent. That apart, it is to be seen when there is conferment of any affirmative right on women, can it go to the extent of treating them as the victim, in all circumstances, to the peril of the husband. Quite apart from that, it is perceivable from the language employed in the Section that the fulcrum of the offence is destroyed once the consent or the connivance of the husband is established. Viewed from the said scenario, the provision really creates a dent on the individual independent identity of a woman when the emphasis is laid on the connivance or the consent of the husband. This tantamounts to subordination of a woman where the Constitution confers equal status. A time has come when the society must realise that a woman is equal to a man in every field. This provision, prima facie, appears to be quite archaic. When the society progresses and the rights are conferred, the new generation of thoughts spring, and that is why, we are inclined to issue notice.”

That is how the matter has been placed before us.

6. At this stage, one aspect needs to be noted. At the time of initial hearing before the three-Judge Bench, the decision in Yusuf Abdul Aziz (supra) was cited and the cited Law Report reflected that the judgment was delivered by four learned Judges and later on, it was noticed, as is reflectible from the Supreme Court Reports, that the decision was rendered by a Constitution Bench comprising of five Judges of this Court.

7. The said factual discovery will not detain us any further. In Yusuf Abdul Aziz (supra), the Court was dealing with the controversy that had travelled to this Court while dealing with a different fact situation. In the said case, the question arose whether Section 497 contravened Articles 14 and 15 of the Constitution of India. In the said case, the appellant was being prosecuted for adultery under Section 497 IPC. As soon as the complaint was filed, the husband applied to the High Court of Bombay to determine the constitutional question under Article 228 of the Constitution. The Constitution Bench referring to Section 497 held thus:-

“3. Under Section 497 the offence of adultery can only be committed by a man but in the absence of any provision to the contrary the woman would be punishable as an abettor. The last sentence in Section 497 prohibits this. It runs—

“In such case the wife shall not be punishable as an abettor.” It is said that this offends Articles 14 and 15.

The portion of Article 15 on which the appellant relies is this:

“The State shall not discriminate against any citizen on grounds only of … sex.”

But what he overlooks is that that is subject to clause (3) which runs—

“Nothing in this article shall prevent the State from making any special provision for women ”

The provision complained of is a special provision and it is made for women, therefore it is saved by clause (3).

4. It was argued that clause (3) should be confined to provisions which are beneficial to women and cannot be used to give them a licence to commit and abet crimes. We are unable to read any such restriction into the clause; nor are we able to agree that a provision which prohibits punishment is tantamount to a licence to commit the offence of which punishment has been prohibited.

5. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code.

6. The appellant is not a citizen of India. It was argued that he could not invoke Articles 14 and 15 for that reason. The High Court held otherwise. It is not necessary for us to decide this question in view of our decision on the other issue.”

On a reading of the aforesaid passages, it is manifest that the Court treated the provision to be a special provision made for women and, therefore, saved by clause (3) of Article 15. Thus, the Court proceeded on the foundation of affirmative action.

8. In this context, we may refer to the observation made by the Constitution Bench in Central Board of Dawoodi Bohra Community and another v. State of Maharashtra and another6 while making a reference to a larger Bench. The said order reads thus:-

“12. Having carefully considered the submissions made by the learned Senior Counsel for the parties and having examined the law laid down by the Constitution Benches in the above said decisions, we would like to sum up the legal position in the following terms:

(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on any subsequent Bench of lesser or coequal strength.

(2) A Bench of lesser quorum cannot disagree or dissent from the view of the law taken by a Bench of larger quorum. In case of doubt all that the Bench of lesser quorum can do is to invite the attention of the Chief Justice and request for the matter being placed for hearing before a Bench of larger quorum than the Bench whose decision has come up for consideration. It will be open only for a Bench of coequal strength to express an opinion doubting the correctness of the view taken by the earlier Bench of coequal strength, whereupon the matter may be placed for hearing before a Bench consisting of a quorum larger than the one which pronounced the decision laying down the law the correctness of which is doubted.

(3) The above rules are subject to two exceptions: (i) the abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power of framing the roster and who can direct any particular matter to be placed for hearing before any particular Bench of any strength; and (ii) in spite of the rules laid down hereinabove, if the matter has already come up for hearing before a Bench of larger quorum and that Bench itself feels that the view of the law taken by a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then by way of exception (and not as a rule) and for reasons given by it, it may proceed to hear the case and examine the correctness of the previous decision in question dispensing with the need of a specific reference or the order of the Chief Justice constituting the Bench and such listing. Such was the situation in Raghubir Singh7 and Hansoli Devi8.”

In the light of the aforesaid order, it was necessary to list the matter before a Constitution Bench consisting of five Judges. As noted earlier, considering the manner in which we intend to deal with the matter, it is not necessary to refer to a larger Bench.

9. Sections 497 and 498 of IPC read thus:-

“Section 497 : Adultery

Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Section 498 : Enticing or taking away or detaining with criminal intent a married woman Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

10. Section 198 of CrPC provides for prosecution for offences against marriage. Section 198 is reproduced below:-

“198. Prosecution for offences against marriage.—(1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that-

(a) Where such person is under the age of eighteen years or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub- section (4) may make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable under section 494 or section 495 of the Indian Penal Code (45 of 1860 ) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father’ s or mother’ s brother or sister 2, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.

(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.

(6) No Court shall take cognizance of an offence under section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under 3 [eighteen years of age], if more than one year has elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.”

11. On a perusal of the aforesaid provision, it is clear that the husband of the woman has been treated to be a person aggrieved for the offences punishable under Sections 497 and 498 of the IPC. The rest of the proviso carves out an exception as to who is entitled to file a complaint when the husband is absent. It may be noted that the offence is non-cognizable.

12. The three-Judge Bench, while referring the matter, had briefly dwelled upon the impact of the provision. To appreciate the constitutional validity, first, we shall deal with the earlier pronouncements and the principles enunciated therein and how we can have a different perspective of such provisions. We have already referred to what has been stated in Yusuf Abdul Aziz (supra).

13. In Sowmithri Vishnu (supra), a petition preferred under Article 32 of the Constitution challenged the validity of Section 497 IPC. We do not intend to advert to the factual matrix. It was contended before the three-Judge Bench that Section 497 confers upon the husband the right to prosecute the adulterer but it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery; that Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and that Section 497 does not take in cases where the husband has sexual relations with an unmarried woman with the result that husbands have a free licence under the law to have extramarital relationships with unmarried women. That apart, the submission was advanced that Section 497 is a flagrant instance of ‘gender discrimination‘, ‘legislative despotism‘ and ‘male chauvinism‘. At first blush, it may appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of “romantic paternalism” which stems from the assumption that women, like chattels, are the property of men.

14. The Court referred to the submissions and held thus:-

“…..The argument really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Were such an argument permissible, several provisions of the penal law may have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough. For example, an argument could be advanced as to why the offence of robbery should be punishable with imprisonment for ten years under Section 392 of the Penal Code but the offence of adultery should be punishable with a sentence of five years only: “Breaking a matrimonial home is no less serious a crime than breaking open a house.” Such arguments go to the policy of the law, not to its constitutionality, unless, while implementing the policy, any provision of the Constitution is infringed. We cannot accept that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the Legislature to consider whether Section 497 should be amended appropriately so as to take note of the “transformation” which the society has undergone….”

Proceeding further, the three-Judge Bench held that the offence of adultery as defined in that Section can only be committed by a man, not by a woman. Indeed, the Section expressly provides that the wife shall not be punishable even as an abettor. No grievance can then be made that the Section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in Section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, the same point is reverted to; who can prosecute whom for which offence depends, firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute.

15. The Court further held:-

“…..Since Section 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard, the section is said to be bad. Counsel is right that Section 497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. But, that does not justify the proposition that she is not entitled to be heard at the trial. We have no doubt that if the wife makes an application in the trial court that she should be heard before a finding is recorded on the question of adultery, the application would receive due consideration from the court. There is nothing, either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to be adversely affected, directly and immediately, by the decision of the court. In fact, instances are not unknown in criminal law where, though the prosecution is in the charge of the Public Prosecutor, the private complainant is given permission to oversee the proceedings. One step more, and the wife could be allowed a hearing before an adverse finding is recorded that, as alleged by her husband, the accused had committed adultery with her. The right of hearing is a concomitant of the principles of natural justice, though not in all situations. That right can be read into the law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not contained in Section 497 cannot render that section unconstitutional as violating Article 21.”

After so stating, the Court placed reliance on Yusuf Abdul Aziz (supra) and held that the same does not offend Articles 14 and 15 of the Constitution and opined that the stability of marriages is not an ideal to be scorned. Being of this view, the Court dismissed the petition.

16. In V. Revathi v. Union of India and others9, the Court analysed the design of the provision and ruled:-

“…..Thus the law permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her. Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law. The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband…..”

It placed heavy reliance on the three-Judge Bench in Sowmithri Vishnu (supra) and proceeded to state that the community punishes the ‘outsider‘ who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring ‘man‘ alone can be punished and not the erring woman. It further went on to say that it does not arm the two spouses to hit each other with the weapon of criminal law. That is why, neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail. There is no discrimination based on sex. While the outsider who violates the sanctity of the matrimonial home is punished, a rider has been added that if the outsider is a woman, she is not punished. There is, thus, reverse discrimination in “favour” of the woman rather than “against” her. The law does not envisage the punishment of any of the spouses at the instance of each other. Thus, there is no discrimination against the woman insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 198(2) does not permit her to do so. In the ultimate analysis, the law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus, no discrimination has been practised in circumscribing the scope of Section 198(2) CrPC and fashioning it in such a manner that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer. Expressing this view, the Court held that the provision is not vulnerable to the charge of hostile discrimination.

17. In W. Kalyani v. State Thro’ Inspector of Police and another10, the Court held:-

“10. The provision is currently under criticism from certain quarters for showing a strong gender bias for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the section that only a man can be proceeded against and punished for the offence of adultery. Indeed, the section provides expressly that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charge of adultery and she cannot be proceeded against for that offence.”

Be it noted, the issue of constitutional validity did not arise in the said case.

18. At this juncture, we think it seemly to state that we are only going to deal with the constitutional validity of Section 497 IPC and Section 198 CrPC. The learned counsel for the petitioner submits that the provision by its very nature is arbitrary and invites the frown of Article 14 of the Constitution. In Shayara Bano v. Union of India and others11, the majority speaking through Nariman, J., ruled thus :-

“60. Hard as we tried, it is difficult to discover any ratio in this judgment, as one part of the judgment contradicts another part. If one particular statutory enactment is already under challenge, there is no reason why other similar enactments which were also challenged should not have been disposed of by this Court. Quite apart from the above, it is a little difficult to appreciate such declination in the light of Prem Chand Garg (supra). This judgment, therefore, to the extent that it is contrary to at least two Constitution 346 Bench decisions cannot possibly be said to be good law.

61. It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act insofar as it seeks to enforce Triple Talaq as a rule of law in the Courts in India.

62. Article 14 of the Constitution of India is a facet of equality of status and opportunity spoken of in the Preamble to the Constitution. The Article naturally divides itself into two parts- (1) equality before the law, and (2) the equal protection of the law. Judgments of this Court have referred to the fact that the equality before law concept has been derived from the law in the U.K., and the equal protection of the laws has been borrowed from the 14th Amendment to the Constitution of the United States of America. In a revealing judgment, Subba Rao, J., dissenting, in State of U.P. v. Deoman Upadhyaya, (1961) 1 SCR 14 at 34 further went on to state that whereas equality before law is a negative concept, the equal protection of the law has positive content. The early judgments of this Court referred to the “discrimination” aspect of Article 14, and evolved a rule by which subjects could be classified. If 347 the classification was “intelligible” having regard to the object sought to be achieved, it would pass muster under Article 14‘s anti- discrimination aspect. Again, Subba Rao, J., dissenting, in Lachhman Das v. State of Punjab, (1963) 2 SCR 353 at 395, warned that:

“50……Overemphasis on the doctrine of classification or an anxious and sustained attempt to discover some basis for classification may gradually and imperceptibly deprive the Article of its glorious content.”

He referred to the doctrine of classification as a “subsidiary rule” evolved by courts to give practical content to the said Article.

63. In the pre-1974 era, the judgments of this Court did refer to the “rule of law” or

“positive” aspect of Article 14, the concomitant of which is that if an action is found to be arbitrary and, therefore, unreasonable, it would negate the equal protection of the law contained in Article 14 and would be struck down on this ground. In S.G. Jaisinghani v. Union of India, (1967) 2 SCR 703, this Court held:

“In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, 348 discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey — “Law of the Constitution” — 10th Edn., Introduction cx). “Law has reached its finest moments”, stated Douglas, J. in United States v. Wunderlick [342 US 98],

“9…..when it has freed man from the unlimited discretion of some ruler…. Where discretion, is absolute, man has always suffered”. It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes [(1770) 4 Burr. 2528 at 2539],

“…..means sound discretion guided by law. It must be governed by rule, not by humour: it must not be arbitrary, vague, and fanciful. “.”

This was in the context of service rules being seniority rules, which applied to the Income Tax Department, being held to be violative of Article 14 of the Constitution of India.”

19. Thereafter, our learned brother referred to the authorities in State of Mysore v. S.R. Jayaram12, Indira Nehru Gandhi v. Raj Narain13, E.P. Royappa v. State of Tamil Nadu14, Maneka Gandhi v. Union of India15, A.L. Kalra v. Project and Equipment Corporation of India Ltd.16, Ajay Hasia v. Khalid Mujib Sehravardi17, K.R. Lakshmanan v. State of T.N.18 and two other Constitution Bench judgments in Mithu v. State of Punjab19 and Sunil Batra v. Delhi Administration20 and, eventually, came to hold thus:-

“It is, therefore, clear from a reading of even the aforesaid two Constitution Bench judgments that Article 14 has been referred to in the context of the constitutional invalidity of statutory law to show that such statutory law will be struck down if it is found to be “arbitrary”.”

And again:-

“…..The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”

20. We respectfully concur with the said view.

21. In Yusuf Abdul Aziz (supra), the Court understood the protection of women as not discriminatory but as being an affirmative provision under clause (3) of Article 15 of the Constitution. We intend to take the path of expanded horizon as gender justice has been expanded by this Court.

22. We may now proceed to test the provision on the touchstone of the aforesaid principles. On a reading of the provision, it is demonstrable that women are treated as subordinate to men inasmuch as it lays down that when there is connivance or consent of the man, there is no offence. This treats the woman as a chattel. It treats her as the property of man and totally subservient to the will of the master. It is a reflection of the social dominance that was prevalent when the penal provision was drafted.

23. As we notice, the provision treats a married woman as a property of the husband. It is interesting to note that Section 497 IPC does not bring within its purview an extra marital relationship with an unmarried woman or a widow. The dictionary meaning of “adultery” is that a married person commits adultery if he has sex with a woman with whom he has not entered into wedlock. As per Black‘s Law Dictionary, ‘adultery‘ is the voluntary sexual intercourse of a married person with a person other than the offender‘s husband or wife. However, the provision has made it a restricted one as a consequence of which a man, in certain situations, becomes criminally liable for having committed adultery while, in other situations, he cannot be branded as a person who has committed adultery so as to invite the culpability of Section 497 IPC. Section 198 CrPC deals with a “person aggrieved”. Sub-section (2) of Section 198 treats the husband of the woman as deemed to be aggrieved by an offence committed under Section 497 IPC and in the absence of husband, some person who had care of the woman on his behalf at the time when such offence was committed with the leave of the court. It does not consider the wife of the adulterer as an aggrieved person. The offence and the deeming definition of an aggrieved person, as we find, is absolutely and manifestly arbitrary as it does not even appear to be rational and it can be stated with emphasis that it confers a licence on the husband to deal with the wife as he likes which is extremely excessive and disproportionate. We are constrained to think so, as it does not treat a woman as an abettor but protects a woman and simultaneously, it does not enable the wife to file any criminal prosecution against the husband. Indubitably, she can take civil action but the husband is also entitled to take civil action. However, that does not save the provision as being manifestly arbitrary. That is one aspect of the matter. If the entire provision is scanned being Argus-eyed, we notice that on the one hand, it protects a woman and on the other, it does not protect the other woman. The rationale of the provision suffers from the absence of logicality of approach and, therefore, we have no hesitation in saying that it suffers from the vice of Article 14 of the Constitution being manifestly arbitrary.

24. Presently, we shall address the issue against the backdrop of Article 21 of the Constitution. For the said purpose, it is necessary to devote some space with regard to the dignity of women and the concept of gender equality.

25. In Arun Kumar Agrawal and another v. National Insurance Company Limited and others21, the issue related to the criteria for determination of compensation payable to the dependents of a woman who died in road accident. She did not have a regular income. Singhvi, J. rejected the stand relating to determination of compensation by comparing a house wife to that of a house keeper or a servant or an employee who works for a fixed period. The learned Judge thought it unjust, unfair and inappropriate. In that context, the learned Judge stated:-

“26. In India the courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer‘s work for particular hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.”

26. Ganguly, J., in his concurring opinion, referred to the Australian Family Property Law and opined that the said law had adopted a very gender sensitive approach. The learned Judge reproduced:-

“the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of a homemaker or parent.”

27. In State of Madhya Pradesh v. Madanlal22, the Court held:-

“Dignity of a woman is a part of her non- perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and we say with emphasis that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error.”

28. In Pawan Kumar v. State of Himachal Pradesh23, the Court, dealing with the concept of equality and dignity of a woman, observed:-

“47 …in a civilized society eve-teasing is causing harassment to women in educational institutions, public places, parks, railways stations and other public places which only go to show that requisite sense of respect for women has not been socially cultivated. A woman has her own space as a man has. She enjoys as much equality under Article 14 of the Constitution as a man does. The right to live with dignity as guaranteed under Article 21 of the Constitution cannot be violated by indulging in obnoxious act of eve-teasing. It affects the fundamental concept of gender sensitivity and justice and the rights of a woman under Article 14 of the Constitution. That apart it creates an incurable dent in the right of a woman which she has under Article 15 of the Constitution. One is compelled to think and constrained to deliberate why the women in this country cannot be allowed to live in peace and lead a life that is empowered with a dignity and freedom. It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognized. It has to be socially respected. No one can compel a woman to love. She has the absolute right to reject.

48. In a civilized society male chauvinism has no room. The Constitution of India confers the affirmative rights on women and the said rights are perceptible from Article 15 of the Constitution. When the right is conferred under the Constitution, it has to be understood that there is no condescendation. A man should not put his ego or, for that matter, masculinity on a pedestal and abandon the concept of civility. Egoism must succumb to law. Equality has to be regarded as the summum bonum of the constitutional principle in this context.”

29. Lord Keith in R v. R24 declared:-

“marriage is in modern times regarded as a partnership of equals, and no longer one in which the wife must be the subservient chattel of the husband.”

30. Lord Denning25 states:-

“A wife is no longer her husband‘s chattel. She is beginning to be regarded by the laws as a partner in all affairs which are their common concern.”

31. In Shamima Farooqui v. Shahid Khan26, the Court ruled:-

“Chivalry, a perverse sense of human egotism, and clutching of feudal megalomaniac ideas or for that matter, any kind of condescending attitude have no room. They are bound to be sent to the ancient woods, and in the new horizon people should proclaim their own ideas and authority.”

And again:-

“Any other idea floated or any song sung in the invocation of male chauvinism is the proposition of an alien, a total stranger – an outsider. That is the truth in essentiality.”

32. In Voluntary Health Association of Punjab v. Union of India27, one of us (Dipak Misra, J.), in his concurring opinion, stated that women have to be regarded as equal partners in the lives of men and it has to be borne in mind that they have equal role in the society, that is, in thinking, participating and leadership. The issue related to female foeticide and it was stated thus:-

“21. When a female foeticide takes place, every woman who mothers the child must remember that she is killing her own child despite being a mother. That is what abortion would mean in social terms. Abortion of a female child in its conceptual eventuality leads to killing of a woman. Law prohibits it; scriptures forbid it; philosophy condemns it; ethics deprecate it, morality decries it and social science abhors it. Henrik Ibsen emphasised on the individualism of woman. John Milton treated her to be the best of all God‘s work. In this context, it will be appropriate to quote a few lines from Democracy in America by Alexis de Tocqueville:

“If I were asked … to what the singular prosperity and growing strength of that people [Americans] ought mainly to be attributed, I should reply: To the superiority of their women.”

22. At this stage, I may with profit reproduce two paragraphs from Ajit Savant

Majagvai v. State of Karnataka28: (SCC pp. 113-14, paras 3 & 4)

“3. Social thinkers, philosophers, dramatists, poets and writers have eulogised the female species of the human race and have always used beautiful epithets to describe her temperament and personality and have not deviated from that path even while speaking of her odd behaviour, at times. Even in sarcasm, they have not crossed the literary limit and have adhered to a particular standard of nobility of language. Even when a member of her own species, Madame De Stael, remarked ‘I am glad that I am not a man; for then I should have to marry a woman‘, there was wit in it. When Shakespeare wrote, ‘Age cannot wither her; nor custom stale, her infinite variety‘, there again was wit. Notwithstanding that these writers have cried hoarse for respect for ‘woman‘, notwithstanding that Schiller said ‘Honour women! They entwine and weave heavenly roses in our earthly life‘ and notwithstanding that the Mahabharata mentioned her as the source of salvation, crime against ‘woman‘ continues to rise and has, today undoubtedly, risen to alarming proportions.

4. It is unfortunate that in an age where people are described as civilised, crime against ‘female’ is committed even when the child is in the womb as the ‘female’ foetus is often destroyed to prevent the birth of a female child. If that child comes into existence, she starts her life as a daughter, then becomes a wife and in due course, a mother. She rocks the cradle to rear up her infant, bestows all her love on the child and as the child grows in age, she gives to the child all that she has in her own personality. She shapes the destiny and character of the child. To be cruel to such a creature is unthinkable. To torment a wife can only be described as the most hated and derisive act of a human being.”

[Emphasis supplied]

And again:-

“23. In Madhu Kishwar v. State of Bihar29 this Court had stated that Indian women have suffered and are suffering discrimination in silence.

“28. … Self-sacrifice and self-denial are their nobility and fortitude and yet they have been subjected to all inequities, indignities, inequality and discrimination.” (SCC p. 148, para 28)

24. The way women had suffered has been aptly reflected by an author who has spoken with quite a speck of sensibility:

“Dowry is an intractable disease for women, a bed of arrows for annihilating self-respect, but without the boon of wishful death.”

25. Long back, Charles Fourier had stated:

“The extension of women‘s rights is the basic principle of all social progress.”

26. Recapitulating from the past, I may refer to certain sayings in the Smritis which put women in an elevated position. This Court

in Nikku Ram case4 had already reproduced the first line of the shloka. The second line of the same which is also significant is as follows:

Yatra tastu na pujyante sarvastatraphalah kriyah

A free translation of the aforesaid is reproduced below:

“All the actions become unproductive in a place, where they are not treated with proper respect and dignity.”

27. Another wise man of the past had his own way of putting it:

Bhartr bhratr pitrijnati swasruswasuradevaraih Bandhubhisca striyah pujyah bhusnachhadanasnaih

A free translation of the aforesaid is as follows:

“The women are to be respected equally on a par with husbands, brothers, fathers, relatives, in-laws and other kith and kin and while respecting, the women gifts like ornaments, garments, etc. should be given as token of honour.”

28. Yet again, the sagacity got reflected in following lines:

Atulam yatra tattejah sarvadevasarirajam Ekastham tadabhunnari vyaptalokatrayam tvisa

A free translation of the aforesaid is reproduced below:

“The incomparable valour (effulgence) born from the physical frames of all the gods, spreading the three worlds by its radiance and combining together took the form of a woman.”

29. From the past, I travel to the present and respectfully notice what Lord Denning had to say about the equality of women and their role in the society:

“A woman feels as keenly, thinks as clearly, as a man. She in her sphere does work as useful as man does in his. She has as much right to her freedom — to develop her personality to the full as a man. When she marries, she does not become the husband‘s servant but his equal partner. If his work is more important in life of the community, her‘s is more important of the family. Neither can do without the other. Neither is above the other or under the other. They are equals.”

33. In Charu Khurana and others v. Union of India and others30, speaking about the dignity of women, the Court held:-

“33. … Be it stated, dignity is the quintessential quality of a personality and a human frame always desires to live in the mansion of dignity, for it is a highly cherished value. Clause (j) has to be understood in the backdrop that India is a welfare State and, therefore, it is the duty of the State to promote justice, to provide equal opportunity to all citizens and see that they are not deprived of by reasons of economic disparity. It is also the duty of the State to frame policies so that men and women have the right to adequate means of livelihood. It is also the duty of the citizen to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.”

34. In Shakti Vahini v. Union of India and others31, the lis was in a different context. The Court reproduced a passage from Joseph J. Ellis which is also relevant for the present purpose. It reads:-

“We don‘t live in a world in which there exists a single definition of honour anymore, and it‘s a fool that hangs onto the traditional standards and hopes that the world will come around him.”

35. In the said case, a contention was advanced that the existence of a woman is entirely dependent on the male view of the reputation of the family, the community and the milieu. The Court, in that context, observed:-

“5. …The collective behaves like a patriarchal monarch which treats the wives, sisters and daughters subordinate, even servile or self-sacrificing, persons moving in physical frame having no individual autonomy, desire and identity. The concept of status is accentuated by the male members of the community and a sense of masculine dominance becomes the sole governing factor of perceptive honour.”

36. We have referred to the aforesaid as we are of the view that there cannot be a patriarchal monarchy over the daughter or, for that matter, husband‘s monarchy over the wife. That apart, there cannot be a community exposition of masculine dominance.

37. Having stated about the dignity of a woman, in the context of autonomy, desire, choice and identity, it is obligatory to refer to the recent larger Bench decision in K.S. Puttaswamy and another v. Union of India and others32 which, while laying down that privacy is a facet of Article 21 of the Constitution, lays immense stress on the dignity of an individual. In the said judgment, it has been held:-

“108. Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well-being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).

xxx xxxx xxx

119. To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society in which constitutional values would be attained by emphasising, among other freedoms, liberty and dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence ”

xxx xxx xxx

“298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably inter-twined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realization of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self- determination.”

xxx xxx xxx

“525. But most important of all is the cardinal value of fraternity which assures the dignity of the individual.359 The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorized use of such information. It is clear that Article 21, more than any of the other Articles in the fundamental rights chapter, reflects each of these constitutional values in full, and is to be read in consonance with these values and with the international covenants that we have referred to. In the ultimate analysis, the fundamental right of privacy, which has so many developing facets, can only be developed on a case to case basis. Depending upon the particular facet that is relied upon, either Article 21 by itself or in conjunction with other fundamental rights would get attracted.”

38. In this context, we may profitably refer to National Legal Services Authority v. Union of India and others33 wherein A.K. Sikri, J., in his concurring opinion, emphasizing on the concept of dignity, has opined:-

“The basic principle of the dignity and freedom of the individual is common to all nations, particularly those having democratic set up. Democracy requires us to respect and develop the free spirit of human being which is responsible for all progress in human history. Democracy is also a method by which we attempt to raise the living standard of the people and to give opportunities to every person to develop his/her personality. It is founded on peaceful co-existence and cooperative living. If democracy is based on the recognition of the individuality and dignity of man, as a fortiori we have to recognize the right of a human being to choose his sex/gender identity which is integral his/her personality and is one of the most basic aspect of self-determination dignity and freedom. In fact, there is a growing recognition that the true measure of development of a nation is not economic growth; it is human dignity.”

39. Very recently, in Common Cause (A Registered Society) v. Union of India and another34, one of us has stated:-

“… Human dignity is beyond definition. It may at times defy description. To some, it may seem to be in the world of abstraction and some may even perversely treat it as an attribute of egotism or accentuated eccentricity. This feeling may come from the roots of absolute cynicism. But what really matters is that life without dignity is like a sound that is not heard. Dignity speaks, it has its sound, it is natural and human. It is a combination of thought and feeling, and, as stated earlier, it deserves respect even when the person is dead and described as a “body”. ”

And again:-

“The concept and value of dignity requires further elaboration since we are treating it as an inextricable facet of right to life that respects all human rights that a person enjoys. Life is basically self-assertion. In the life of a person, conflict and dilemma are expected to be normal phenomena. Oliver Wendell Holmes, in one of his addresses, quoted a line from a Latin poet who had uttered the message, “Death plucks my ear and says, Live- I am coming” . That is the significance of living. But when a patient really does not know if he/she is living till death visits him/her and there is constant suffering without any hope of living, should one be allowed to wait? Should she/he be cursed to die as life gradually ebbs out from her/his being? Should she/he live because of innovative medical technology or, for that matter, should he/she continue to live with the support system as people around him/her think that science in its progressive invention may bring about an innovative method of cure? To put it differently, should he/she be “guinea pig for some kind of experiment? The answer has to be an emphatic “Not because such futile waiting mars the pristine concept of life, corrodes 139 the essence of dignity and erodes the fact of eventual choice which is pivotal to privacy.”

In Mehmood Nayyar Azam v. State of Chhattisgarh and others, a two-Judge Bench held thus:-

“1…… Albert Schweitzer, highlighting on Glory of Life, pronounced with conviction and humility, “the reverence of life offers me my fundamental principle on morality”. The aforesaid expression may appear to be an individualistic expression of a great personality, but, when it is understood in the complete sense, it really denotes, in its conceptual essentiality, and connotes, in its macrocosm, the fundamental perception of a thinker about the respect that life commands. The reverence of life is insegragably associated with the dignity of a human being who is basically divine, not servile. A human personality is endowed with potential infinity and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, ‘a brief candle’, or ‘a hollow bubble’. The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of “creative intelligence”

40. In the said judgment, A.K. Sikri, J. reproduced a passage from Professor Upendra Baxi‘s lecture in First Justice H.R. Khanna Memorial Lecture which reads as follows:-

“I still need to say that the idea of dignity is a metaethical one, that is it marks and maps a difficult terrain of what it may mean to say being ‘human’ and remaining ‘human’, or put another way the relationship between ‘self’, ‘others’, and ‘society’. In this formulation the word ‘respect’ is the keyword: dignity is respect for an individual person based on the principle of freedom and capacity to make choices and a good or just social order is one which respects dignity via assuring ‘contexts’ and ‘conditions’ as the ‘source of free and informed choice’. Respect for dignity thus conceived is empowering overall and not just because it, even if importantly, sets constraints state, law, and regulations.”

41. From the aforesaid analysis, it is discernible that the Court, with the passage of time, has recognized the conceptual equality of woman and the essential dignity which a woman is entitled to have. There can be no curtailment of the same. But, Section 497 IPC effectively does the same by creating invidious distinctions based on gender stereotypes which creates a dent in the individual dignity of women. Besides, the emphasis on the element of connivance or consent of the husband tantamounts to subordination of women. Therefore, we have no hesitation in holding that the same offends Article 21 of the Constitution.

42. Another aspect needs to be addressed. The question we intend to pose is whether adultery should be treated as a criminal offence. Even assuming that the new definition of adultery encapsules within its scope sexual intercourse with an unmarried woman or a widow, adultery is basically associated with the institution of marriage. There is no denial of the fact that marriage is treated as a social institution and regard being had to various aspects that social history has witnessed in this country, the Parliament has always made efforts to maintain the rights of women. For instance, Section 498-A IPC deals with husband or relative of husband of a woman subjecting her to cruelty. The Parliament has also brought in the Protection of Women from Domestic Violence Act, 2005. This enactment protects women. It also enters into the matrimonial sphere. The offences under the provisions of the said enactment are different from the provision that has been conceived of under Section 497 IPC or, for that matter, concerning bringing of adultery within the net of a criminal offence. There can be no shadow of doubt that adultery can be a ground for any kind of civil wrong including dissolution of marriage. But the pivotal question is whether it should be treated as a criminal offence. When we say so, it is not to be understood that there can be any kind of social licence that destroys the matrimonial home. It is an ideal condition when the wife and husband maintain their loyalty. We are not commenting on any kind of ideal situation but, in fact, focusing on whether the act of adultery should be treated as a criminal offence.

In this context, we are reminded of what Edmund Burke, a famous thinker, had said, “a good legislation should be fit and equitable so that it can have a right to command obedience”. Burke would like to put it in two compartments, namely, ‘equity‘ and ‘utility‘. If the principle of Burke is properly understood, it conveys that laws and legislations are necessary to serve and promote a good life.

43. Dealing with the concept of crime, it has been stated in “Principles of Criminal Liability”35 thus :-

“1. Definition of crime.—There is no satisfactory definition of crime which will embrace the many acts and omissions which are criminal, and which will at the same time exclude all those acts and omissions which are not. Ordinarily a crime is a wrong which affects the security or well- being of the public generally so that the public has an interest in its suppression. A crime is frequently a moral wrong in that it amounts to conduct which is inimical to the general moral sense of the community. It is, however, possible to instance many crimes which exhibit neither of the foregoing characteristics. An act may be made criminal by Parliament simply because it is criminal process, rather than civil, which offers the more effective means of controlling the conduct in question.”

44. In Kenny’s Outlines of Criminal Law, 19th Edn., 1966 by

J.W. Cecil Turner, it has been stated that:-

“There is indeed no fundamental or inherent difference between a crime and a tort. Any conduct which harms an individual to some extent harms society, since society is made up of individuals; and therefore although it is true to say of crime that is an offence against society, this does not distinguish crime from tort. The difference is one of degree only, and the early history of the common law shows how words which now suggest a real distinction began rather as symbols of emotion than as terms of scientific classification.”

And again:-

“So long as crimes continue (as would seem inevitable) to be created by government policy the nature of crime will elude true definition. Nevertheless it is a broadly accurate description to say that nearly every instance of crime presents all of the three following characteristics: (1) that it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; (2) that among the measures of prevention selected is the threat of punishment; (3) that legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so.”

45. Stephen defines a “crime” thus:-

“A crime is an unlawful act or default which is an offence against the public, rendering the person guilty of such act or default liable to legal punishment. The process by which such person is punished for the unlawful act or default is carried on in the name of the Crown; although any private person, in the absence of statutory provision to the contrary, may commence a criminal prosecution. Criminal proceedings were formerly called pleas of the Crown, because the King, in whom centres the majesty of the whole community, is supposed by the law to be the person injured by every infraction of the public rights belonging to that community. Wherefore he is, in all cases, the proper prosecutor for every public offence.”

46. Blackstone, while discussing the general nature of crime, has defined crime thus:-

“A crime, or misdemeanour, is an act committed or omitted, in violation of a public law, either forbidding or commanding it. This general definition comprehends both crimes and misdemeanours; which, properly speaking, are mere synonym terms: though, in common usage, the word “crimes” is made to denote such offences as are of a deeper and more atrocious dye; while smaller faults, and omissions of less consequence, are comprised under the gentler name of “misdemeanours” only.”

47. In this regard, we may reproduce a couple of paragraphs from Central Inland Water Transport Corporation Limited and another v. Brojo Nath Ganguly36. They read as under:-

“25. The story of mankind is punctuated by progress and retrogression. Empires have risen and crashed into the dust of history. Civilizations have nourished, reached their peak and passed away. In the year 1625, Carew, C.J., while delivering the opinion of the House of Lords in Re the Earldom of Oxford in a dispute relating to the descent of that Earldom, said:

“… and yet time hath his revolution, there must be a period and an end of all temporal things, finis rerum, an end of names and dignities, and whatsoever is terrene ”

The cycle of change and experiment, rise and fall, growth and decay, and of progress and retrogression recurs endlessly in the history of man and the history of civilization. T.S. Eliot in the First Chorus from “The Rock” said:

O perpetual revolution of configured stars,
O perpetual recurrence of determined seasons,
O world of spring and autumn, birth and dying;
The endless cycle of idea and action,
Endless invention, endless experiment.”

26. The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith, said: “When I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool.” The law must, therefore, in a changing society march in tune with the changed ideas and ideologies.”

48. Reproducing the same, the Court in Common Cause (A Registered Society) (supra), has observed :-

“160. The purpose of saying so is only to highlight that the law must take cognizance of the changing society and march in consonance with the developing concepts. The need of the present has to be served with the interpretative process of law. However, it is to be seen how much strength and sanction can be drawn from the Constitution to consummate the changing ideology and convert it into a reality. The immediate needs are required to be addressed through the process of interpretation by the Court unless the same totally falls outside the constitutional framework or the constitutional interpretation fails to recognize such dynamism.”

49. We have referred to the aforesaid theories and authorities to understand whether adultery that enters into the matrimonial realm should be treated as a criminal offence. There can be many a situation and we do not intend to get into the same. Suffice it to say, it is different from an offence committed under Section 498-A or any violation of the Protection of Women from Domestic Violence Act, 2005 or, for that matter, the protection conceived of under Section 125 of the Code of Criminal Procedure or Sections 306 or 304B or 494 IPC. These offences are meant to sub-serve various other purposes relating to a matrimonial relationship and extinction of life of a married woman during subsistence of marriage. Treating adultery an offence, we are disposed to think, would tantamount to the State entering into a real private realm. Under the existing provision, the husband is treated as an aggrieved person and the wife is ignored as a victim. Presently, the provision is reflective of a tripartite labyrinth. A situation may be conceived of where equality of status and the right to file a case may be conferred on the wife. In either situation, the whole scenario is extremely private. It stands in contradistinction to the demand for dowry, domestic violence, sending someone to jail for non-grant of maintenance or filing a complaint for second marriage. Adultery stands on a different footing from the aforesaid offences. We are absolutely conscious that the Parliament has the law making power. We make it very clear that we are not making law or legislating but only stating that a particular act, i.e., adultery does not fit into the concept of a crime. We may repeat at the cost of repetition that if it is treated as a crime, there would be immense intrusion into the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce. For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely, dignity of husband and wife, as the case may be, and the privacy attached to a relationship between the two. Let it be clearly stated, by no stretch of imagination, one can say, that Section 498-A or any other provision, as mentioned hereinbefore, also enters into the private realm of matrimonial relationship. In case of the said offences, there is no third party involved. It is the husband and his relatives. There has been correct imposition by law not to demand dowry or to treat women with cruelty so as to compel her to commit suicide. The said activities deserve to be punished and the law has rightly provided so.

50. In this regard, we may also note how the extramarital relationship cannot be treated as an act for commission of an offence under Section 306 IPC. In Pinakin Mahipatray Rawal v. State of Gujarat37, the Court has held :-

“27. Section 306 refers to abetment of suicide which says that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment for a term which may extend to 10 years and shall also be liable to fine. The action for committing suicide is also on account of mental disturbance caused by mental and physical cruelty. To constitute an offence under Section 306, the prosecution has to establish that a person has committed suicide and the suicide was abetted by the accused. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and the accused abetted the commission of suicide. But for the alleged extra- marital relationship, which if proved, could be illegal and immoral, nothing has been brought out by the prosecution to show that the accused had provoked, incited or induced the wife to commit suicide.”
[Emphasis added]

51. In the context of Section 498-A, the Court, in Ghusabhai Raisangbhai Chorasiya v. State of Gujarat38, has opined that even if the illicit relationship is proven, unless some other acceptable evidence is brought on record to establish such high degree of mental cruelty, the Explanation (a) to Section 498-A IPC, which includes cruelty to drive the woman to commit suicide, would not be attracted. The relevant passage from the said authority is extracted below :-

“21. …True it is, there is some evidence about the illicit relationship and even if the same is proven, we are of the considered opinion that cruelty, as envisaged under the first limb of Section 498-A IPC would not get attracted. It would be difficult to hold that the mental cruelty was of such a degree that it would drive the wife to commit suicide. Mere extra-marital relationship, even if proved, would be illegal and immoral, as has been said in Pinakin Mahipatray Rawal, but it would take a different character if the prosecution brings some evidence on record to show that the accused had conducted in such a manner to drive the wife to commit suicide. In the instant case, the accused may have been involved in an illicit relationship with Appellant 4, but in the absence of some other acceptable evidence on record that can establish such high degree of mental cruelty, the Explanation to Section 498- A IPC which includes cruelty to drive a woman to commit suicide, would not be attracted.”
[Emphasis added]

52. The purpose of referring to the aforesaid authorities is to highlight how adultery has not been granted separate exclusive space in the context of Sections 306 and 498-A IPC.

53. In case of adultery, the law expects the parties to remain loyal and maintain fidelity throughout and also makes the adulterer the culprit. This expectation by law is a command which gets into the core of privacy. That apart, it is a discriminatory command and also a socio-moral one. Two individuals may part on the said ground but to attach criminality to the same is inapposite.

54. We may also usefully note here that adultery as a crime is no more prevalent in People‘s Republic of China, Japan, Australia, Brazil and many western European countries. The diversity of culture in those countries can be judicially taken note of. Non-criminalisation of adultery, apart from what we have stated hereinabove, can be proved from certain other facets. When the parties to a marriage lose their moral commitment of the relationship, it creates a dent in the marriage and it will depend upon the parties how they deal with the situation. Some may exonerate and live together and some may seek divorce. It is absolutely a matter of privacy at its pinnacle. The theories of punishment, whether deterrent or reformative, would not save the situation. A punishment is unlikely to establish commitment, if punishment is meted out to either of them or a third party. Adultery, in certain situations, may not be the cause of an unhappy marriage. It can be the result. It is difficult to conceive of such situations in absolute terms. The issue that requires to be determined is whether the said ‘act‘ should be made a criminal offence especially when on certain occasions, it can be the cause and in certain situations, it can be the result. If the act is treated as an offence and punishment is provided, it would tantamount to punishing people who are unhappy in marital relationships and any law that would make adultery a crime would have to punish indiscriminately both the persons whose marriages have been broken down as well as those persons whose marriages are not. A law punishing adultery as a crime cannot make distinction between these two types of marriages. It is bound to become a law which would fall within the sphere of manifest arbitrariness.

55. In this regard, another aspect deserves to be noted. The jurisprudence in England, which to a large extent, is adopted by this country has never regarded adultery as a crime except for a period of ten years in the reign of Puritanical Oliver Cromwell. As we see the international perspective, most of the countries have abolished adultery as a crime. We have already ascribed when such an act is treated as a crime and how it faces the frown of Articles 14 and 21 of the Constitution. Thinking of adultery from the point of view of criminality would be a retrograde step. This Court has travelled on the path of transformative constitutionalism and, therefore, it is absolutely inappropriate to sit in a time machine to a different era where the machine moves on the path of regression. Hence, to treat adultery as a crime would be unwarranted in law.

56. As we have held that Section 497 IPC is unconstitutional and adultery should not be treated as an offence, it is appropriate to declare Section 198 CrPC which deals with the procedure for filing a complaint in relation to the offence of adultery as unconstitutional. When the substantive provision goes, the procedural provision has to pave the same path.

57. In view of the foregoing analysis, the decisions in Sowmithri Vishnu (supra) and V. Revathi (supra) stand overruled and any other judgment following precedents also stands overruled.

58. Consequently, the writ petition is allowed to the extent indicated hereinbefore.

.………………………….CJI.
(Dipak Misra)

.…………………………….J.
(A.M. Khanwilkar)

New Delhi; September 27, 2018

FOOTNOTE

1 On the Subjection of Women, Chapter 1 (John Stuart Mill, 1869)
2 1954 SCR 930 : AIR 1954 SC 321
3 (1985)Supp SCC 137 : AIR 1985 SC 1618
4 (1988)2 SCC 72
5 (2012) 1 SCC 358
6 (2005) 2 SCC 673
7 Union of India and Anr. v. Raghubir Singh (dead) by Lrs. etc., (1989) 2 SCC 754
8 Union of India & Anr. v. Hansoli Devi & Ors., (2002) 7 SCC 273
9 (1988) 2 SCC 72
10 (2012) 1 SCC 358
11 (2017) 9 SCC 1
12 (1968) 1 SCR 349
13 (1975) Supp SCC 1
14 (1974) 4 SCC 3
15 (1978) 1 SCC 248
16 (1984) 3 SCC 316
17 (1981) 1 SCC 722
18 (1996) 2 SCC 226
19 (1983) 2 SCC 277
20 (1978) 4 SCC 494
21 (2010) 9 SCC 218
22 (2015) 7 SCC 681
23 (2017) 7 SCC 780
24 [1991] 4 All ER 481 at p. 484
25 The Due Process of Law (London, Butterworths, 1980, at page 212)
26 (2015) 5 SCC 705
27 (2013) 4 SCC 1
28 (1997) 7 SCC 110
29 (1996) 5 SCC 125
30 (2015) 1 SCC 192
31 (2018) 7 SCC 192
32 (2017) 10 SCC 1
33 (2014) 5 SCC 438
34 (2018) 5 SCC 1
35 Halsbury’s Laws of England, 4th Edn., Vol. 11 p.11,
36 (1986) 3 SCC 156
37 (2013) 10 SCC 48
38 (2015) 11 SCC 753

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 194 OF 2017

JOSEPH SHINE … PETITIONER
VERSUS
UNION OF INDIA … RESPONDENT

J U D G M E N T

R.F. Nariman, J. (Concurring)

1. What is before us in this writ petition is the constitutional validity of an archaic provision of the Indian Penal Code (“IPC”), namely, Section 497, which makes adultery a crime. Section 497 appears in Chapter XX of the IPC, which deals with offences relating to marriage. Section 497 reads as follows:-

“497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

The offence of bigamy, which is contained in Section 494 in the same Chapter, is punishable with a longer jail term which may extend to 7 years, but in this case, the husband or the wife, as the case may be, is liable to be prosecuted and convicted. Section 494 reads as follows:

“494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Exception.—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”

It will be noticed that the crime of adultery punishes only a third- party male offender as against the crime of bigamy, which punishes the bigamist, be it a man or a woman. What is therefore punished as ‘adultery‘ is not ‘adultery‘ per se but the proprietary interest of a married man in his wife.

Almost all ancient religions/civilizations punished the sin of adultery. In one of the oldest, namely, in Hammurabi‘s Code, death by drowning was prescribed for the sin of adultery, be it either by the husband or the wife. In Roman law, it was not a crime against the wife for a husband to have sex with a slave or an unmarried woman. The Roman lex Iulia de adulteriis coercendis of 17 B.C., properly so named after Emperor Augustus‘ daughter, Julia, punished Julia for adultery with banishment. Consequently, in the case of adulterers generally, both guilty parties were sent to be punished on different islands, and part of their property was confiscated.

2. In Judaism, which again is an ancient religion, the Ten Commandments delivered by the Lord to Moses on Mount Sinai contains the Seventh Commandment – “Thou shalt not commit adultery” – set out in the book of Exodus in the Old Testament.1 Equally, since the wages of sin is death, the book of Leviticus in the Old Testament prescribes the death penalty for the adulterer as well as the adulteress.2

3. In Christianity, we find adultery being condemned as immoral and a sin for both men and women, as is evidenced by St. Paul‘s letter to the Corinthians.3 Jesus himself stated that a man incurs sin the moment he looks at a woman with lustful intent.4 However, when it came to punishing a woman for adultery, by stoning to death in accordance with the ancient Jewish law, Jesus uttered the famous words, “let him who has not sinned, cast the first stone.”5

4. In this country as well, in the Manusmriti, Chapters 4.1346 and 8.3527 prescribes punishment for those who are addicted to intercourse with wives of other men by punishments which cause terror, followed by banishment. The Dharmasutras speak with different voices. In the Apastamba Dharmasutra, adultery is punishable as a crime, the punishment depending upon the class or caste of the man and the woman.8 However, in the Gautama Dharmasutra, if a man commits adultery, he should observe a life of chastity for two years; and if he does so with the wife of a vedic scholar, for three years.9

5. In Islam, in An-Nur, namely, Chapter 24 of the Qur‘an, Verses 2 and 6 to 9 read as follows:

“2. The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not pity for them detain you from obedience to Allah, if you believe in Allah and the Last Day, and let a party of believers witness their chastisement.”10

xxx xxx xxx

“6. And those who accuse their wives and have no witnesses except themselves, let one of them testify four times, bearing Allah to witness, that he is of those who speak the truth.

7. And the fifth (time) that the curse of Allah be on him, if he is of those who lie.

8. And it shall avert the chastisement from her, if she testify four times, bearing Allah to witness, that he is of those who lie.

9. And the fifth (time) that the wrath of Allah to be on her, if he is of those who speak the truth.”11

What is interesting to note is that if there are no witnesses other than the husband or the wife, and the husband testifies four times that his wife has committed adultery, which is met by the wife testifying four times that she has not, then earthly punishment is averted. The wrath of Allah alone will be on the head of he or she who has given false testimony – which wrath will be felt only in life after death in the next world.

6. In sixth-century Anglo-Saxon England, the law created “elaborate tables of composition” which the offended husband could accept in lieu of blood vengeance. These tables were schemes for payment of compensation depending upon the degree of harm caused to the cuckolded husband. However, as Christianity spread in England, adultery became morally wrong and therefore, a sin, as well as a wrong against the husband. Post 1066, the Normans who took over, viewed adultery not as a crime against the State, but rather as an ecclesiastical offence dealt with by the Church. The common law of England prescribed an action in tort for loss of consortium based on the property interest a husband had in his wife. Thus, the action for conversation, which is compensation or damages, usually represented a first step in obtaining divorce in medieval England. In fact, adultery was the only ground for divorce in seventeenth-century England, which had to be granted only by Parliament. Interestingly enough, it was only after King Charles I was beheaded in 1649, that adultery became a capital offence in Cromwell‘s Puritanical England in the year 1650, which was nullified as soon as King Charles II came back in what was known as the ‘restoration of the monarchy‘. It will be seen therefore, that in England, except for an eleven-year period when England was ruled by the Puritans, adultery was never considered to be a criminal offence. Adultery was only a tort for which damages were payable to the husband, given his proprietary interest in his wife.12 This tort is adverted to by a 1904 judgment of the Supreme Court of the United States in Charles A. Tinker v. Frederick L. Colwell, 193 US 473 (1904), as follows:

“…… We think the authorities show the husband had certain personal and exclusive rights with regard to the person of his wife which are interfered with and invaded by criminal conversation with her; that such an act on the part of another man constitutes an assault even when, as is almost universally the case as proved, the wife in fact consents to the act, because the wife is in law incapable of giving any consent to affect the husband‘s rights as against the wrongdoer, and that an assault of this nature may properly be described as an injury to the personal rights and property of the husband, which is both malicious and willful……

The assault vi et armis is a fiction of law, assumed at first, in early times, to give jurisdiction of the cause of action as a trespass, to the courts, which then proceeded to permit the recovery of damages by the husband for his wounded feelings and honour, the defilement of the marriage bed, and for the doubt thrown upon the legitimacy of children.”13

“We think that it is made clear by these references to a few of the many cases on this subject that the cause of action by the husband is based upon the idea that the act of the defendant is a violation of the marital rights of the husband in the person of his wife, and so the act of the defendant is an injury to the person and also to the property rights of the husband.”14

To similar effect is the judgment in Pritchard v. Pritchard and Sims, [1966] 3 All E.R. 601, which reconfirmed the origins of adultery or criminal conversation as under:

“In 1857, when marriage in England was still a union for life which could be broken only by private Act of Parliament, there existed side by side under the common law three distinct causes of action available to a husband whose rights in his wife were violated by a third party, who enticed her away, or who harboured her or who committed adultery with her. …… In the action for adultery known as criminal conversation, which dates from before the time of BRACTON, and consequently lay originally in trespass, the act of adultery itself was the cause of action and the damages punitive at large. It lay whether the adultery resulted in the husband‘s losing his wife‘s society and services or not. All three causes of action were based on the recognition accorded by the common law to the husband‘s propriety interest in the person of his wife, her services and earnings, and in the property which would have been hers had she been feme sole.”15

7. In England, Section LIX of the Divorce and Matrimonial Causes Act, 1857 abolished the common law action for criminal conversation while retaining, by Section XXXIII of the same Act, the power to award the husband damages for adultery committed by the wife. This position continued right till 1923, when the Matrimonial Causes Act, 1923 made adultery a ground for divorce available to both spouses instead of only the husband. The right of a husband to claim damages for adultery was abolished very recently by the Law Reforms (Miscellaneous Provisions) Act, 1970.16

8. In the United States, however, Puritans who went to make a living in the American colonies, carried with them Cromwell‘s criminal law, thereby making adultery a capital offence. Strangely enough, this still continues in some of the States in the United States. The American Law Institute, however, has dropped the crime of adultery from its Model Penal Code as adultery statutes are in general vague, archaic, and sexist. None of the old reasons in support of such statutes, namely, the controlling of disease, the preventing of illegitimacy, and preserving the traditional family continue to exist as of today. It was also found that criminal adultery statutes were rarely enforced in the United States and were, therefore, referred to as “dead letter statutes”. This, plus the potential abuses from such statutes continuing on the statute book, such as extortion, blackmail, coercion etc. were stated to be reasons for removing adultery as a crime in the Model Penal Code.17

9. When we come to India, Lord Macaulay, in his draft Penal Code, which was submitted to the Law Commissioners, refused to make adultery a penal offence. He reasoned as follows:

“The following positions we consider as fully established: first, that the existing laws for the punishment of adultery are altogether inefficacious for the purpose of preventing injured husbands of the higher classes from taking the law into their own hands; secondly, that scarcely any native of the higher classes ever has recourse to the Courts of law in a case of adultery for redress against either his wife, or her gallant; thirdly, that the husbands who have recourse in cases of adultery to the Courts of law are generally poor men whose wives have run away, that these husbands seldom have any delicate feelings about the intrigue, but think themselves injured by the elopement, that they consider their wives as useful members of their small household, that they generally complain not of the wound given to their affections, not of the stain on their honor, but of the loss of a menial whom they cannot easily replace, and that generally their principal object is that the woman may be sent back. The fiction by which seduction is made the subject of an action in the English Courts is, it seems, the real gist of most proceedings for adultery in the Mofussil. The essence of the injury is considered by the sufferer as lying in the “per quod servitium amisit.” Where the complainant does not ask to have his wife again, he generally demands to be reimbursed for the expenses of his marriage.

These things being established it seems to us that no advantage is to be expected from providing a punishment for adultery. The population seems to be divided into two classes- those whom neither the existing punishment nor any punishment which we should feel ourselves justified in proposing will satisfy, and those who consider the injury produced by adultery as one for which a pecuniary compensation will sufficiently atone. Those whose feelings of honor are painfully affected by the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less delicate will be satisfied by a payment of money. Under such circumstances we think it best to treat adultery merely as a civil injury.”

xxx xxx xxx

“These arguments have not satisfied us that adultery ought to be made punishable by law. We cannot admit that a Penal code is by any means to be considered as a body of ethics, that the legislature ought to punish acts merely because those acts are immoral, or that because an act is not punished at all it follows that the legislature considers that act as innocent. Many things which are not punishable are morally worse than many things which are punishable. The man who treats a generous benefactor with gross in gratitude and insolence, deserves more severe reprehension than the man who aims a blow in a passion, or breaks a window in a frolic. Yet we have punishments for assault and mischief, and none for ingratitude. The rich man who refuses a mouthful of rice to save a fellow creature from death may be a far worse man than the starving wretch who snatches and devours the rice. Yet we punish the latter for theft, and we do not punish the former for hard-heartedness.”

xxx xxx xxx

“There is yet another consideration which we cannot wholly leave out of sight. Though we well know that the dearest interests of the human race are closely connected with the chastity of women, and the sacredness of the nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of the women of this country is unhappily very different from that of the women of England and France. They are married while still children. They are often neglected for other wives while still young. They share the attentions of a husband with several rivals. To make laws for punishing the inconstancy of the wife while the law admits the privilege of the husband to fill his zenana with women, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law an evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow, but we trust the certain operation of education and of time. But while it exists, while it continues to produce its never failing effects on the happiness and respectability of women, we are not inclined to throw into a scale already too much depressed the additional weight of the penal law. We have given the reasons which lead us to believe that any enactment on this subject would be nugatory. And we are inclined to think that if not nugatory it would be oppressive. It would strengthen hands already too strong. It would weaken a class already too weak. It will be time enough to guard the matrimonial contract by penal sanctions when that contract becomes just, reasonable, and mutually beneficial.”18

10. However, when the Court Commissioners reviewed the Penal Code, they felt that it was important that adultery be made an offence. The reasons for so doing are set out as follows:

“353. Having given mature consideration to the subject, we have, after some hesitation, come to the conclusion that it is not advisable to exclude this offence from the Code. We think the reasons for continuing to treat it as a subject for the cognizance of the criminal courts preponderate. We conceive that Colonel Sleeman is probably right in regarding the difficulty of proving the offence according to the requirement of the Mohammedan law of evidence, which demands an amount of positive proof that is scarcely ever to be had in such a case, as having some effect in deterring the Natives from prosecuting adulterers in our courts, although the Regulations allow of a conviction upon strong presumption arising from circumstantial evidence. This difficulty, if it has had the effect supposed, will be removed, should the Code be adopted. Colonel Sleeman‘s representation of the actual consequences of the present system, which, while it recognizes the offence, renders it, in the opinion of the Natives, almost impossible to bring an offender to justice, it will be observed, coincides with and confirms practically Mr. Livingstone‘s view of the result to be expected when the law refuses to punish this offence. The injured party will do it for himself; great crimes, assassinations, poisonings, will be the consequence. The law here does not refuse, but it fails to punish the offence, says Colonel Sleeman, and poisonings are the consequence.

354. Colonel Sleeman thinks that the Commissioners have wrongly assumed that it is the lenity of the existing law that it is complained of by the Natives, and believes that they would be satisfied with a less punishment for the offence than the present law allows; viz. imprisonment for seven years, if it were certain to follow the offender. He proposes that the punishment of a man “convicted of seducing the wife of another” shall be imprisonment which may extend to seven years, or a fine payable to the husband or both imprisonment and fine. The punishment of a married woman “convicted of adultery” he would limit to imprisonment for two years. We are not aware whether or not he intends the difference in the terms used to be significant of a difference in the nature of the proof against the man and the woman respectively.

355. While we think that the offence of adultery ought not to be omitted from the Code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in Note Q, regarding the condition of a women of this country, in deference to it we would render the male offender alone liable to punishment. We would, however, put the parties accused of adultery on trial together, and empower the Court, in the event of their conviction, to pronounce a decree of divorce against the guilty woman, if the husband sues for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine. By Mr. Livingstone‘s Code, the woman forfeits her “matrimonial gains”, but is not liable to other punishment.

356. We would adopt Colonel Sleeman‘s suggestion as to the punishment of the male offender, limiting it to imprisonment not exceeding five years, instead of seven years allowed at present, and sanctioning the imposition of a fine payable to the husband as an alternative, or in addition.

357. The punishment prescribed by the Code of Louisiana is imprisonment not more than six months, or fine not exceeding 2,000 dollars, or both. By the French Code, the maximum term of imprisonment is two years, with fine in addition, which may amount to 2,000 francs.

358. If the offence of adultery is admitted into the Penal Code, there should be a provision in the Code of Procedure to restrict the right of prosecuting to the injured husband, agreeably to Section 2, Act II of 1845.”19

(emphasis supplied)

These are some of the reasons that led to the enactment of Section 497, IPC.

11. At this stage, it is important to note that by Section 199 of the Code of Criminal Procedure, 1898, it was only the husband who was to be deemed to be aggrieved by an offence punishable under Section 497, IPC. Thus, Section 199 stated:

“199. Prosecution for adultery or enticing a married woman.— No Court shall take cognizance of an offence under section 497 or section 498 of the Indian Penal Code (XLV of 1860), except upon a complaint made by the husband of the woman, or, in his absence, by some person who had care of such woman on his behalf at the time when such offence was committed.”

12. Even when this Code was replaced by the Code of Criminal Procedure (“CrPC”), 1973, Section 198 of the CrPC, 1973 continued the same provision with a proviso that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf. The said Section reads as follows:

“198. Prosecution for offences against marriage.— (1) No Court shall take cognizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence:
Provided that—

(a) where such person is under the age of eighteen years, or is an idiot or a lunatic, or is from sickness or infirmity unable to make a complaint, or is a woman who, according to the local customs and manners, ought not to be compelled to appear in public, some other person may, with the leave of the Court, make a complaint on his or her behalf;

(b) where such person is the husband and he is serving in any of the Armed Forces of the Union under conditions which are certified by his Commanding Officer as precluding him from obtaining leave of absence to enable him to make a complaint in person, some other person authorised by the husband in accordance with the provisions of sub-section (4) may make a complaint on his behalf;

(c) where the person aggrieved by an offence punishable under Section 494 or Section 495 of the Indian Penal Code (45 of 1860) is the wife, complaint may be made on her behalf by her father, mother, brother, sister, son or daughter or by her father‘s or mother‘s brother or sister, or, with the leave of the Court, by any other person related to her by blood, marriage or adoption.

(2) For the purposes of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code:

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.

(3) When in any case falling under clause (a) of the proviso to sub-section (1), the complaint is sought to be made on behalf of a person under the age of eighteen years or of a lunatic by a person who has not been appointed or declared by a competent authority to be the guardian of the person of the minor or lunatic, and the Court is satisfied that there is a guardian so appointed or declared, the Court shall, before granting the application for leave, cause notice to be given to such guardian and give him a reasonable opportunity of being heard.

(4) The authorisation referred to in clause (b) of the proviso to sub-section (1), shall be in writing, shall be signed or otherwise attested by the husband, shall contain a statement to the effect that he has been informed of the allegations upon which the complaint is to be founded, shall be countersigned by his Commanding Officer, and shall be accompanied by a certificate signed by that Officer to the effect that leave of absence for the purpose of making a complaint in person cannot for the time being be granted to the husband.

(5) Any document purporting to be such an authorisation and complying with the provisions of sub-section (4), and any document purporting to be a certificate required by that sub-section shall, unless the contrary is proved, be presumed to be genuine and shall be received in evidence.

(6) No Court shall take cognizance of an offence under Section 376 of the Indian Penal Code (45 of 1860), where such offence consists of sexual intercourse by a man with his own wife, the wife being under eighteen years of age, if more than one year has elapsed from the date of the commission of the offence.

(7) The provisions of this section apply to the abetment of, or attempt to commit, an offence as they apply to the offence.”

At this stage, it is important to advert to some of the judgments of the High Courts and our Court. In Yusuf Abdul Aziz v. State, 1952 ILR Bom 449, a Division Bench of the Bombay High Court, consisting of M.C. Chagla, C.J. and P.B. Gajendragadkar, J. held that Section 497 of the IPC did not contravene Articles 14 and 15 of the Constitution. However, in an instructive passage, the learned Chief Justice stated:

“…… Mr. Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their husbands. The very fact that this offence is only cognizable with the consent of the husband emphasises that point of view. It may be argued that Section 497 should not find a place in any modern Code of law. Days are past, we hope, when women were looked upon as property by their husbands. But that is an argument more in favour of doing away with Section 497 altogether.”20

An appeal to this Court in Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930, (“Yusuf Abdul Aziz”), met with the same result.

This Court, through Vivian Bose, J., held that the last part of Section 497, which states that the wife shall not be punishable as an abettor of the offence of adultery, does not offend Articles 14 and 15 in view of the saving provision contained in Article 15(3), being a special provision made in favour of women.

This is an instance of Homer nodding. Apart from a limited ratio based upon a limited argument, the judgment applies a constitutional provision which is obviously inapplicable as Article 15(3), which states that, “nothing in this article shall prevent the State from making a special provision for women”, would refer to the “State” as either Parliament or the State Legislatures or the Executive Government of the Centre or the States, set up under the Constitution after it has come into force. Section 497 is, in constitutional language, an “existing law” which continues, by virtue of Article 372(1), to apply, and could not, therefore, be said to be a law made by the “State”, meaning any of the entities referred to above.

13. We have noticed a judgment of the Division Bench of the Bombay High Court in Dattatraya Motiram More v. State of Bombay, AIR 1953 Bom 311, in which the Division Bench turned down a submission that Article 15(3) is confined to laws made after the Constitution of India comes into force and would also apply to existing law thus:

“8. An argument was advanced by Mr. Patel that Art. 15(3) only applies to future legislation and that as far as all laws in force before the commencement of the Constitution were concerned, those laws can only be tested by Art. 15(1) and not by Art. 15(1) read with Art. 15(3). Mr. Patel contends that Art. 15(3) permits the State in future to make a special provision for women and children, but to the extent the laws in force are concerned Art. 15(1) applies, and if the laws in force are inconsistent with Art. 15(1), those laws must be held to be void. Turning to Art. 13(1), it provides:

“All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.”

Therefore, before a law in force can be declared to be void it must be found to be inconsistent with one of the provisions of Part III which deals with Fundamental Rights, and the fundamental right which is secured to the citizen under Art. 15 is not the unlimited right under Art. 15(1) but the right under Art. 15(1) qualified by Art. 15(3). It is impossible to argue that the Constitution did not permit laws to have special provision for women if the laws were passed before the Constitution came into force, but permitted the Legislature to pass laws in favour of women after the Constitution was enacted. If a law discriminating in favour of women is opposed to the fundamental rights of citizens, there is no reason why such law should continue to remain on the statute book. The whole scheme of Art. 13 is to make laws, which are inconsistent with Part III, void, not only if they were in force before the commencement of the Constitution, but also if they were enacted after the Constitution came into force. Mr. Patel relies on the various provisos to Art. 19 and he says that in all those provisos special mention is made to existing laws and also to the State making laws in future. Now, the scheme of Art. 19 is different from the scheme of Art. 15. Provisos to Art. 19 in terms deal with law whether existing or to be made in future by the State, whereas Art. 15(3) does not merely deal with laws but deals generally with any special provision for women and children, and therefore it was not necessary in Art. 15(3) to mention both existing laws and laws to be made in future. But the exception made to Art. 15(1) by Art. 15(3) is an exception which applies both to existing laws and to laws which the State may make in future.”

14. We are of the view that this paragraph does not represent the law correctly. In fact, Article 19(2)-(6) clearly refers to
“existing law” as being separate from “the State making any law”, indicating that the State making any law would be laws made after the Constitution comes into force as opposed to “existing law”, which are pre-constitutional laws enacted before the Constitution came into force, as is clear from the definition of “existing law” contained in Article 366(10), which reads as under:

“366. Definitions.—In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—

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(10) “existing law” means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation;”

15. Article 15(3) refers to the State making laws which therefore, obviously cannot include existing law. Article 15(3) is in this respect similar to Article 16(4), which reads as follows:

“16. Equality of opportunity in matters of public employment.—

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(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

The vital difference in language between Articles 15(3) and 16(4) on the one hand, and Article 19(2)-(6) on the other, must thus be given effect.

16. Coming back to Yusuf Abdul Aziz (supra), the difference in language between Article 15(3) and Article 19(2)-(6) was not noticed. The limited ratio of this judgment merely refers to the last sentence in Section 497 which it upholds. Its ratio does not extend to upholding the entirety of the provision or referring to any of the arguments made before us for striking down the provision as a whole.

17. We then come to Sowmithri Vishnu v. Union of India and Anr., (1985) Supp SCC 137, (“Sowmithri Vishnu”). In this case, an Article 32 petition challenged the constitutional validity of Section 497 of the Penal Code on three grounds which are
set out in paragraph 6 of the judgment. Significantly, the learned counsel in that case argued that Section 497 is a flagrant instance of ‘gender discrimination‘, ‘legislative despotism‘, and ‘male chauvinism‘. This Court repelled these arguments stating that they had a strong emotive appeal but no valid legal basis to rest upon. The first argument, namely, an argument of discrimination was repelled by stating that the ambit of the offence of adultery should make the woman punishable as well. This was repelled by saying that such arguments go to the policy of the law and not its constitutionality. This was on the basis that it is commonly accepted that it is the man who is the seducer and not the woman. Even in 1985, the Court accepted that this archaic position may have undergone some change over the years, but it is for the legislature to consider whether Section 497 be amended appropriately so as to take note of the transformation that society has undergone.

The Court then referred to the 42nd Law Commission Report, 1971, which recommended the retention of Section 497, with the modification that, even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery. The dissenting note of Mrs. Anna Chandi was also taken note of, where the dissenter stated that this is the right time to consider the question whether the offence of adultery, as envisaged in Section 497, is in tune with our present-day notions of women‘s status in marriage.

The second ground was repelled stating that a woman is the victim of the crime, and as the offence of adultery is considered as an offence against the sanctity of the matrimonial home, only those men who defile that sanctity are brought within the net of the law. Therefore, it is of no moment that Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.

The third ground, namely, that Section 497 is underinclusive inasmuch as a husband who has sexual relations with an unmarried woman is not within the net of the law, was repelled stating that an unfaithful husband may invite a civil action by the wife for separation, and that the Legislature is entitled to deal with the evil where it is felt and seen most.

A challenge on the ground of Article 21 was also repelled, stating that the fact that a provision for hearing the wife is not contained in Section 497 cannot render that Section unconstitutional. This Court then referred to the judgment in Yusuf Abdul Aziz (supra) and stated that since it was a 1954 decision, and 30 years had passed since then, this Court was examining the position afresh. The Court ended with the sermon, “stability of marriages is not an ideal to be scorned.”

18. In V. Revathi v. Union of India and Ors., (1988) 2 SCC 72, this Court, after referring to Sowmithri Vishnu (supra), repelled a similar challenge to Section 198 of the CrPC, 1973. After referring to Sowmithri Vishnu (supra), since Section 497, IPC and Section 198, CrPC go hand in hand and constitute a ‘legislative packet‘ to deal with the offence of adultery committed by an outsider, the challenge to the said Section failed.

19. International trends worldwide also indicate that very few nations continue to treat adultery as a crime, though most nations retain adultery for the purposes of divorce laws. Thus, adultery continues to be a criminal offence in Afghanistan, Bangladesh, Indonesia, Iran, Maldives, Nepal, Pakistan, Philippines, United Arab Emirates, some states of the United States of America, Algeria, Democratic Republic of Congo, Egypt, Morocco, and some parts of Nigeria.

On the other hand, a number of jurisdictions have done away with adultery as a crime. The People‘s Republic of China, Japan, Brazil, New Zealand, Australia, Scotland, the Netherlands, Denmark, France, Germany, Austria, the Republic of Ireland, Barbados, Bermuda, Jamaica, Trinidad and Tobago, Seychelles etc. are some of the jurisdictions in which it has been done away with. In South Korea21 and Guatemala,22 provisions similar to Section 497 have been struck down by the constitutional courts of those nations.

20. The Supreme Court of Namibia, in an instructive judgment,23 went into whether the criminal offence of adultery would protect marriages and reduce the incidence of adultery. It said:

“[45] But does the action protect marriages from adultery? For the reasons articulated by both the SCA and the Constitutional Court, I do not consider that the action can protect marriage as it does not strengthen a weakening marriage or breathe life into one which is in any event disintegrating. [DE v. RH, 2015 (5) SA 83 (CC) (Constitutional Court of South Africa) para 49]. The reasoning set out by the SCA is salutary and bears repetition:

‘But the question is: if the protection of marriage is one of its main goals, is the action successful in achieving that goal? The question becomes more focused when the spotlight is directed at the following considerations:

(a) First of all, as was pointed out by the German Bundesgericht in the passage from the judgment (JZ 1973, 668) from which I have quoted earlier, although marriage is — ‘a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties. Its essence . . . consists in the readiness, founded in morals, of the parties to the marriage to create and to maintain it.‘ If the parties to the marriage have lost that moral commitment, the marriage will fail, and punishment meted out to a third party is unlikely to change that.

(b) Grave doubts are expressed by many about the deterrent effect of the action. In most other countries it was concluded that the action (no longer) has any deterrent effect and I have no reason to think that the position in our society is all that different. Perhaps one reason is that adultery occurs in different circumstances. Every so often it happens without any premeditation, when deterrence hardly plays a role. At the other end of the scale, the adultery is sometimes carefully planned and the participants are confident that it will not be discovered. Moreover, romantic involvement between one of the spouses and a third party can be as devastating to the marital relationship as (or even more so than) sexual intercourse.

(c) If deterrence is the main purpose, one would have thought that this could better be achieved by retaining the imposition of criminal sanctions or by the grant of an interdict in favour of the innocent spouse against both the guilty spouse and the third party to prevent future acts of adultery. But, as we know, the crime of adultery had become abrogated through disuse exactly 100 years ago while an interdict against adultery has never been granted by our courts (see, for example, Wassenaar v Jameson, supra at 352H – 353H). Some of the reasons given in Wassenaar as to why an interdict would not be appropriate are quite enlightening and would apply equally to the appropriateness of a claim for damages. These include, firstly, that an interdict against the guilty spouse is not possible because he or she commits no delict. Secondly, that as against a third party —

‘it interferes with, and restricts the rights and freedom that the third party ordinarily has of using and disposing of his body as he chooses; . . . it also affects the relationship of the third party with the claimant’s spouse, who is and cannot be a party to the interdict, and therefore indirectly interferes with, and restricts her rights and freedom of, using and disposing of her body as she chooses‘. [At 353E.]

(d) In addition the deterrence argument seems to depart from the assumption that adultery is the cause of the breakdown of a marriage, while it is now widely recognised that causes for the breakdown in marriages are far more complex. Quite frequently adultery is found to be the result and not the cause of an unhappy marital relationship. Conversely stated, a marriage in which the spouses are living in harmony is hardly likely to be broken up by a third party.‘”24

21. Coming back to Section 497, it is clear that in order to constitute the offence of adultery, the following must be established:

(i) Sexual intercourse between a married woman and a man who is not her husband;

(ii) The man who has sexual intercourse with the married woman must know or has reason to believe that she is the wife of another man;

(iii) Such sexual intercourse must take place with her consent, i.e., it must not amount to rape;

(iv) Sexual intercourse with the married woman must take place without the consent or connivance of her husband.

22. What is apparent on a cursory reading of these ingredients is that a married man, who has sexual intercourse with an unmarried woman or a widow, does not commit the offence of adultery. Also, if a man has sexual intercourse with a married woman with the consent or connivance of her husband, he does not commit the offence of adultery. The consent of the woman committing adultery is material only for showing that the offence is not another offence, namely, rape.

23. The background in which this provision was enacted now needs to be stated. In 1860, when the Penal Code was enacted, the vast majority of the population in this country, namely, Hindus, had no law of divorce as marriage was considered to be a sacrament. Equally, a Hindu man could marry any number of women until 1955. It is, therefore, not far to see as to why a married man having sexual intercourse with an unmarried woman was not the subject matter of the offence. Since adultery did not exist as a ground in divorce law, there being no divorce law, and since a man could marry any number of wives among Hindus, it was clear that there was no sense in punishing a married man in having sex with an unmarried woman as he could easily marry her at a subsequent point in time. Two of the fundamental props or bases of this archaic law have since gone. Post 1955-1956, with the advent of the “Hindu Code”, so to speak, a Hindu man can marry only one wife; and adultery has been made a ground for divorce in Hindu Law. Further, the real heart of this archaic law discloses itself when consent or connivance of the married woman‘s husband is obtained – the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the “licensor”, namely, the husband, no offence is committed. Consequently, the wife who has committed adultery is not the subject matter of the offence, and cannot, for the reason that she is regarded only as chattel, even be punished as an abettor. This is also for the chauvinistic reason that the third-party male has ‘seduced‘ her, she being his victim. What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today‘s constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today‘s day and age, utterly irrational. On this basis alone, the law deserves to be struck down, for with the passage of time, Article 14 springs into action and interdicts such law as being manifestly arbitrary. That legislation can be struck down on the ground of manifest arbitrariness is no longer open to any doubt, as has been held by this Court in Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1, as follows:

“101. …… Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”

24. It is clear, therefore, that the ostensible object of Section 497, as pleaded by the State, being to protect and preserve the sanctity of marriage, is not in fact the object of Section 497 at all, as has been seen hereinabove. The sanctity of marriage can be utterly destroyed by a married man having sexual intercourse with an unmarried woman or a widow, as has been seen hereinabove. Also, if the husband consents or connives at such sexual intercourse, the offence is not committed, thereby showing that it is not sanctity of marriage which is sought to be protected and preserved, but a proprietary right of a husband. Secondly, no deterrent effect has been shown to exist, or ever to have existed, which may be a legitimate consideration for a State enacting criminal law. Also, manifest arbitrariness is writ large even in cases where the offender happens to be a married woman whose marriage has broken down, as a result of which she no longer cohabits with her husband, and may in fact, have obtained a decree for judicial separation against her husband, preparatory to a divorce being granted. If, during this period, she has sex with another man, the other man is immediately guilty of the offence.

25. The aforesaid provision is also discriminatory and therefore, violative of Article 14 and Article 15(1). As has been held by us hereinabove, in treating a woman as chattel for the purposes of this provision, it is clear that such provision discriminates against women on grounds of sex only, and must be struck down on this ground as well. Section 198, CrPC is also a blatantly discriminatory provision, in that it is the husband alone or somebody on his behalf who can file a complaint against another man for this offence. Consequently, Section 198 has also to be held constitutionally infirm.

26. We have, in our recent judgment in Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India and Ors., (2017) 10 SCC 1, (“Puttaswamy”), held:

“108. Over the last four decades, our constitutional jurisprudence has recognised the inseparable relationship between protection of life and liberty with dignity. Dignity as a constitutional value finds expression in the Preamble. The constitutional vision seeks the realisation of justice (social, economic and political); liberty (of thought, expression, belief, faith and worship); equality (as a guarantee against arbitrary treatment of individuals) and fraternity (which assures a life of dignity to every individual). These constitutional precepts exist in unity to facilitate a humane and compassionate society. The individual is the focal point of the Constitution because it is in the realisation of individual rights that the collective well-being of the community is determined. Human dignity is an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Article 14), the lamps of freedom (Article 19) and in the right to life and personal liberty (Article 21).”

xxx xxx xxx

“298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary State action. It prevents the State from discriminating between individuals. The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha-suffixed right to privacy: this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.”

xxx xxx xxx

“482. Shri Sundaram has argued that rights have to be traced directly to those expressly stated in the fundamental rights chapter of the Constitution for such rights to receive protection, and privacy is not one of them. It will be noticed that the dignity of the individual is a cardinal value, which is expressed in the Preamble to the Constitution. Such dignity is not expressly stated as a right in the fundamental rights chapter, but has been read into the right to life and personal liberty. The right to live with dignity is expressly read into Article 21 by the judgment in Jolly George Varghese v. Bank of Cochin [Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360], at para 10. Similarly, the right against bar fetters and handcuffing being integral to an individual’s dignity was read into Article 21 by the judgment in Sunil Batra v. Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155], at paras 192, 197-B, 234 and 241 and Prem Shankar Shukla v. Delhi Admn. [Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 : 1980 SCC (Cri) 815], at paras 21 and 22. It is too late in the day to canvas that a fundamental right must be traceable to express language in Part III of the Constitution. As will be pointed out later in this judgment, a Constitution has to be read in such a way that words deliver up principles that are to be followed and if this is kept in mind, it is clear that the concept of privacy is contained not merely in personal liberty, but also in the dignity of the individual.”

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“525. But most important of all is the cardinal value of fraternity which assures the dignity of the individual. [In 1834, Jacques-Charles DuPont de l’Eure associated the three terms liberty, equality and fraternity together in the Revue Républicaine, which he edited, as follows: “Any man aspires to liberty, to equality, but he cannot achieve it without the assistance of other men, without fraternity.” Many of our decisions recognise human dignity as being an essential part of the fundamental rights chapter. For example, see Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 at para 21, Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC 608 at paras 6, 7 and 8, Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at para 10, Maharashtra University of Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC 786 at para 37, Shabnam v. Union of India, (2015) 6 SCC 702 at paras 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 at para 37.] The dignity of the individual encompasses the right of the individual to develop to the full extent of his potential. And this development can only be if an individual has autonomy over fundamental personal choices and control over dissemination of personal information which may be infringed through an unauthorised use of such information. It is clear that Article 21, more than any of the other articles in the fundamental rights chapter, reflects each of these constitutional values in full, and is to be read in consonance with these values and with the international covenants that we have referred to. In the ultimate analysis, the fundamental right to privacy, which has so many developing facets, can only be developed on a case-to-case basis. Depending upon the particular facet that is relied upon, either Article 21 by itself or in conjunction with other fundamental rights would get attracted.”

The dignity of the individual, which is spoken of in the Preamble to the Constitution of India, is a facet of Article 21 of the Constitution. A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down on this ground also.

27. When we come to the decision of this Court in Yusuf Abdul Aziz (supra), it is clear that this judgment also does not, in any manner, commend itself or keep in tune with modern constitutional doctrine. In any case, as has been held above, its ratio is an extremely limited one as it upheld a wife not being punishable as an abettor which is contained in Section 497, IPC. The focus on whether the provision as a whole would be constitutionally infirm was not there in the aforesaid judgment.

At this stage, it is necessary to advert to Chief Justice Chagla‘s foresight in the Bombay High Court judgment which landed up in appeal before this Court in Yusuf Abdul Aziz’s (supra). Chief Justice Chagla had stated that since the underlying idea of Section 497 is that wives are properties of their husbands, Section 497 should not find a place in any modern Code of law, and is an argument in favour of doing away with Section 497 altogether. The day has long since arrived when the Section does, in fact, need to be done away with altogether, and is being done away with altogether.

28. In Sowmithri Vishnu (supra), this Court upheld Section 497 while repelling three arguments against its continuance, as has been noticed hereinabove. This judgment also must be said to be swept away by the tidal wave of recent judgments expanding the scope of the fundamental rights contained in Articles 14, 15, and 21. Ancient notions of the man being the seducer and the woman being the victim permeate the judgment, which is no longer the case today. The moving times have not left the law behind as we have just seen, and so far as engaging the attention of law makers when reform of penal law is undertaken, we may only hasten to add that even when the CrPC was fully replaced in 1973, Section 198 continued to be on the statute book. Even as of today, Section 497 IPC continues to be on the statute book. When these sections are wholly outdated and have outlived their purpose, not only does the maxim of Roman law, cessante ratione legis, cessat ipsa lex, apply to interdict such law, but when such law falls foul of constitutional guarantees, it is this Court‘s solemn duty not to wait for legislation but to strike down such law. As recently as in Shayara Bano (supra), it is only the minority view of Khehar, C.J.I. and S. Abdul Nazeer, J., that one must wait for the law to change legislatively by way of social reform. The majority view was the exact opposite, which is why Triple Talaq was found constitutionally infirm and struck down by the majority. Also, we are of the view that the statement in this judgment that stability of marriages is not an ideal to be scorned, can scarcely be applied to this provision, as we have seen that marital stability is not the object for which this provision was enacted. On all these counts, therefore, we overrule the judgment in Sowmithri Vishnu (supra). Equally, the judgment in V. Revathi (supra), which upheld the constitutional validity of Section 198 must, for similar reasons, be held to be no longer good law. We, therefore, declare that Section 497 of the Indian Penal Code, 1860 and Section 198 of the Code of Criminal Procedure, 1973 are violative of Articles 14, 15(1), and 21 of the Constitution of India and are, therefore, struck down as being invalid.

……………………………..J.
(R.F. Nariman)

New Delhi;
September 27, 2018.

FOOTNOTE

1 Exodus 20:14 (King James Version).
2 Leviticus 20:10 (King James Version).
3 1 Corinthians 6:9-10 (King James Version).
4 Matthew 5:27-28 (King James Version).
5 John, 8:7 (English Standard Version).
6 THE LAWS OF MANU 150 (Translation by G. Buhler, Clarendon Press, UK, 1886).
7 Id., 315.
8 DHARMASUTRAS – THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA 70-71
(Translation by Patrick Olivelle, Oxford University Press 1999).
9 Id., 116-117.
10 THE KORAN (AL–QUR‘AN): ARABIC-ENGLISH BILINGUAL EDITION WITH AN INTRODUCTION BY MOHAMED A.
‘ARAFA 363 (Maulana Muhammad Ali Translation, TellerBooks, 2018).
11 Id.
12 Linda Fitts Mischler, Personal Morals Masquerading as Professional Ethics: Regulations Banning Sex between Domestic Relations Attorneys and Their Clients, 23 HARVARD WOMEN‘S LAW JOURNAL 1, 21-22 (2000) [“Linda Fitts Mischler”].
13 Tinker v. Colwell, 193 U.S. 473, 481 (1904).
14 Id., 485.
15 [1966] 3 All E.R. 601, 607.
16 Section 4, Law Reforms (Miscellaneous Provisions) Act, 1970.
17 Linda Fitts Mischler, supra n. 12, 23-25.
18 A PENAL CODE PREPARED BY THE INDIAN LAW COMMISSIONERS, AND PUBLISHED BY COMMAND OF THE GOVERNOR GENERAL OF INDIA IN COUNCIL 91-93 (G.H. Huttmann, The Bengal Military Orphan Press, 1837).
19 COPIES OF THE SPECIAL REPORTS OF THE INDIAN LAW COMMISSIONERS 76 (James C. Melvill, East India House, 1847).
20 1952 ILR Bombay 449, 454.
21 2009 Hun-Ba 17, (26.02.2015) [Constitutional Court of South Korea].
22 Expediente 936-95, (07.03.1996), República de Guatemala Corte de Constitucionalidad [Constitutional Court of Guatemala].
23 James Sibongo v. Lister Lutombi Chaka and Anr. (Case No. SA77-14) (19.08.2016) [Supreme Court of Namibia].
24 Id., 17-19.

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO 194 OF 2017

JOSEPH SHINE …Petitioner
VERSUS
UNION OF INDIA …Respondent

J U D G M E N T

Index

A Gender: the discursive struggle

B Judicial discourse on adultery

C Relics of the past

D Across frontiers

E Confronting patriarchy F ‘The Good Wife’

F.1 The entrapping cage

G Denuding identity – women as sexual property

G.1 Exacting fidelity: the intimacies of marriage

H Towards transformative justice

Dr Dhananjaya Y Chandrachud, J

A Gender: the discursive struggle

1 Our Constitution is a repository of rights, a celebration of myriad freedoms and liberties. It envisages the creation of a society where the ideals of equality, dignity and freedom triumph over entrenched prejudices and injustices. The creation of a just, egalitarian society is a process. It often involves the questioning and obliteration of parochial social mores which are antithetical to constitutional morality. The case at hand enjoins this constitutional court to make an enquiry into the insidious permeation of patriarchal values into the legal order and its role in perpetuating gender injustices.

2 Law and society are intrinsically connected and oppressive social values often find expression in legal structures. The law influences society as well but societal values are slow to adapt to leads shown by the law. The law on adultery cannot be construed in isolation. To fully comprehend its nature and impact, every legislative provision must be understood as a ‘discourse’ about social structuring.1 However, the discourse of law is not homogenous.2 In the context particularly of Section 497, it regards individuals as ‘gendered citizens’.3 In doing so, the law creates and ascribes gender roles based on existing societal stereotypes. An understanding of law as a ‘discourse’ would lead to the recognition of the role of law in creating ‘gendered identities’.4

3 Over the years, legal reform has had a significant role in altering the position of women in societal orderings. This is seen in matters concerning inheritance and in the protection against domestic violence. However, in some cases, the law operates to perpetuate an unequal world for women. Thus, depending on the manner in which it is used, law can act as an agent of social change as well as social stagnation. Scholar Patricia Williams, who has done considerable work on the critical race theory, is sanguine about the possibility of law engendering progressive social transformation:

“It is my deep belief that theoretical legal understanding and social transformation need not be oxymoronic”5

The Constitution, both in text and interpretation, has played a significant role in the evolution of law from being an instrument of oppression to becoming one of liberation. Used in a liberal perspective, the law can enhance democratic values. As an instrument which preserves the status quo on the other hand, the law preserves stereotypes and legitimises unequal relationships based on pre- existing societal discrimination. Constantly evolving, law operates as an important “site for discursive struggle”, where ideals compete and new visions are shaped.6. In regarding law as a “site of discursive struggle”, it becomes imperative to examine the institutions and structures within which legal discourse operates:7

“The idea of neutral dialogue is an idea which denies history, denies structure, denies the positioning of subjects.”8

In adjudicating on the rights of women, the Court must not lose sight of the institutions and values which have forced women to a shackled existence so far. To fully recognise the role of law and society in shaping the lives and identities of women, is also to ensure that patriarchal social values and legal norms are not permitted to further obstruct the exercise of constitutional rights by the women of our country.

4 In the preceding years, the Court has evolved a jurisprudence of rights- granting primacy to the right to autonomy, dignity and individual choice. The right to sexual autonomy and privacy has been granted the stature of a Constitutional right. In confronting the sources of gendered injustice which threaten the rights and freedoms promised in our Constitution, we set out to examine the validity of Section 497 of the Indian Penal Code. In doing so, we also test the constitutionality of moral and societal regulation of women and their intimate lives through the law.

B Judicial discourse on adultery

5 This Court, on earlier occasions, has tested the constitutionality of Section 497 of the Indian Penal Code as well as Section 198(2) of the Code of Criminal Procedure.

Section 497 reads thus:

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

Section 198(2) of the Code of Criminal Procedure reads thus:

“(2) For the purposes of sub- section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code: Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was com- mitted may, with the leave of the Court, make a complaint on his behalf.”

6 The decision of the Constitution Bench in Yusuf Abdul Aziz v State of Bombay9, arose from a case where the appellant was being prosecuted for adultery under Section 497. On a complaint being filed, he moved the High Court to determine the constitutional question about the validity of the provision, under Article 228. The High Court decided against the appellant10, but Chief Justice Chagla made an observation about the assumption underlying Section 497:

“Mr Peerbhoy is right when he says that the underlying idea of Section 497 is that wives are properties of their husbands. The very fact that the offence is only cognizable with the consent of the husband emphasises that point of view. It may be argued that Section 497 should not find a place in any modern Code of law. Days are past, when women were looked upon as property by their husbands.”

A narrow challenge was addressed before this Court. The judgment of Justice Vivian Bose records the nature of the challenge:

“3. Under Section 497 the offence of adultery can only be committed by a man but in the absence of any provision to the contrary the woman would be punishable as an abettor.

The last sentence in Section 497 prohibits this. It runs—

“In such case the wife shall not be punishable as an abettor”. It is said that this offends Articles 14 and 15.”

Hence, the challenge was only to the prohibition on treating the wife as an abettor. It was this challenge which was dealt with and repelled on the ground that Article 14 must be read with the other provisions of Part III which prescribe the ambit of the fundamental rights. The prohibition on treating the wife as an abettor was upheld as a special provision which is saved by Article 15(3). The conclusion was that:

“5. Article 14 is general and must be read with the other provisions which set out the ambit of fundamental rights. Sex is a sound classification and although there can be no discrimination in general on that ground, the Constitution itself provides for special provisions in the case of women and children. The two articles read together validate the impugned clause in Section 497 of the Indian Penal Code.”

7 The challenge was to a limited part of Section 497: that which prohibited a woman from being prosecuted as an abettor. Broader issues such as whether (i) the punishment for adultery violates Article 21; (ii) the statutory provision suffers from manifest arbitrariness; (iii) the legislature has, while ostensibly protecting the sanctity of marriage, invaded the dignity of women; and (iv) Section 497 violates Article 15(1) by enforcing gender stereotypes were neither addressed before this Court nor were they dealt with.

This Court construed the exemption granted to women from criminal sanctions as a ‘special provision’ for the benefit of women and thus, protected under Article 15(3) of the Constitution. In Union of India v Elphinstone Spinning and Weaving Co. Ltd,11 a Constitution Bench of this Court held:

“17…When the question arises as to the meaning of a certain provision in a statute it is not only legitimate but proper to read that provision in its context. The context means the statute as a whole, the previous state of law, other statutes in pari materia, the general scope of the statute and the mischief that it was intended to remedy…”12

It is of particular relevance to examine the mischief that the provision intends to remedy. The history of Section 497 reveals that the law on adultery was for the benefit of the husband, for him to secure ownership over the sexuality of his wife. It was aimed at preventing the woman from exercising her sexual agency. Thus, Section 497 was never conceived to benefit women. In fact, the provision is steeped in stereotypes about women and their subordinate role in marriage. The patriarchal underpinnings of the law on adultery become evident when the provision is considered as a whole.

8 In the subsequent decision of the three judge Bench in Sowmithri Vishnu v Union of India13, the court proceeded on the basis that the earlier decision in Yusuf Abdul Aziz had upheld Section 497 against a challenge based on Articles 14 and 15 of the Constitution. This is not a correct reading or interpretation of the judgment.

9 Sowmithri Vishnu did as a matter of fact consider the wider constitutional challenge on the ground that after the passage of thirty years, “particularly in the light of the alleged social transformation in the behavioural pattern of women in matters of sex”, it had become necessary that the matter be revisited. Sowmithri Vishnu arose in a situation where a petition for divorce by the appellant against her husband on the ground of desertion was dismissed with the finding that it was the appellant who had deserted her husband. The appellant’s husband then sued for divorce on the ground of desertion and adultery. Faced with this petition, the appellant urged that a decree for divorce on the ground of desertion may be passed on the basis of the findings in the earlier petition. She, however, opposed the effort of the husband to urge the ground of adultery. While the trial court accepted the plea of the husband to assert the ground of adultery, the High Court held in revision that a decree of divorce was liable to be passed on the ground of desertion, making it unnecessary to inquire into adultery. While the petition for divorce was pending against the appellant, her husband filed a complaint under Section 497 against the person with whom the appellant was alleged to be in an adulterous relationship. The appellant then challenged the constitutional validity of Section 497.

The judgment of the three judge Bench indicates that three grounds of challenge were addressed before this Court : first, while Section 497 confers a right on the husband to prosecute the adulterer, it does not confer upon the wife to prosecute the woman with whom her husband has committed adultery; second, Section 497 does not confer a right on the wife to prosecute her husband who has committed adultery with another woman; and third, Section 497 does not cover cases where a man has sexual relations with an unmarried woman. The submission before this Court was that the classification under Section 497 was irrational and ‘arbitrary’. Moreover, it was also urged that while facially, the provision appears to be beneficial to a woman, it is in reality based on a notion of paternalism “which stems from the assumption that women, like chattels, are the property of men.”

10 The decision in Sowmithri Vishnu dealt with the constitutional challenge by approaching the discourse on the denial of equality in formal, and rather narrow terms. Chandrachud, CJ speaking for the three judge Bench observed that by definition, the offence of adultery can be committed by a man and not by a woman. The court construed the plea of the petitioner as amounting to a

suggestion that the definition should be recast in a manner that would make the offence gender neutral. The court responded by observing that this was a matter of legislative policy and that the court could invalidate the provision only if a constitutional violation is established. The logic of the court, to the effect that extending the ambit of a statutory definition is a matter which requires legislative change is unexceptionable. The power to fashion an amendment to the law lies with the legislature. But this only leads to the conclusion that the court cannot extend the legislative prescription by making the offence gender neutral. It does not answer the fundamental issue as to whether punishment for adultery is valid in constitutional terms. The error in Sowmithri Vishnu lies in holding that there was no constitutional infringement. The judgment postulates that:

“7…It is commonly accepted that it is the man who is the seducer and not the woman. This position may have undergone some change over the years but it is for the Legislature to consider whether Section 497 should be amended appropriately so as to take note of the “transformation” which the society has undergone. The Law Commission of India in its Forty-second Report, 1971, recommended the retention of Section 497 in its present form with the modification that, even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery. The suggested modification was not accepted by the Legislature. Mrs Anna Chandi, who was in the minority, voted for the deletion of Section 497 on the ground that “it is the right time to consider the question whether the offence of adultery as envisaged in Section 497 is in tune with our present-day notions of woman’s status in marriage”. The report of the Law Commission shows that there can be two opinions on the desirability of retaining a provision like the one contained in Section 497 on the statute book. But, we cannot strike down that section on the ground that it is desirable to delete it.”14

These observations indicate that the constitutional challenge was addressed purely from the perspective of the argument that Section 497 is not gender neutral, in allowing only the man but not to the woman in a sexual relationship to be prosecuted. The court proceeded on the assumption, which it regards as “commonly accepted that it is the man who is the seducer and not the woman.” Observing that this position may have undergone some change, over the years, the decision holds that these are matters for the legislature to consider and that the desirability of deleting Section 497 is not a ground for invalidation.

11 The decision in Sowmithri Vishnu has left unanswered the fundamental challenge which was urged before the Court. Under Article 14, the challenge was that the statutory provision treats a woman purely as the property of her husband. That a woman is regarded no more than as a possession of her husband is evidenced in Section 497, in more than one context. The provision stipulates that a man who has sexual intercourse with the wife of another will not be guilty of offence if the husband of the woman were to consent or, (worse still, to connive. In this, it is evident that the legislature attributes no agency to the woman. Whether or not a man with whom she has engaged in sexual intercourse is guilty of an offence depends exclusively on whether or not her husband is a consenting individual. No offence exists if her husband were to consent. Even if her husband were to connive at the act, no offence would be made out. The mirror image of this constitutional infirmity is that the wife of the man who has engaged in the act has no voice or agency under the statute. Again, the law does not make it an offence for a married man to engage in an act of sexual intercourse with a single woman. His wife is not regarded by the law as a person whose agency and dignity is affected. The underlying basis of not penalising a sexual act by a married man with a single woman is that she (unlike a married woman) is not the property of a man (as the law would treat her to be if she is married). Arbitrariness is writ large on the provision. The problem with Section 497 is not just a matter of under inclusion. The court in Sowmithri Vishnu recognised that an under-inclusive definition is not necessarily discriminatory and that the legislature is entitled to deal with the evil where it is felt and seen the most. The narrow and formal sense in which the provisions of Article 14 have been construed is evident again from the following observations:

“8…The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in Section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, we revert to the same point: Who can prosecute whom for which offence depends, firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute.”15

The decision of the three judge Bench does not address the central challenge to the validity of Section 497. Section 497, in its effort to protect the sanctity of marriage, has adopted a notion of marriage which does not regard the man and the woman as equal partners. It proceeds on the subjection of the woman to the will of her husband. In doing so, Section 497 subordinates the woman to a position of inferiority thereby offending her dignity, which is the core of Article 21. Significantly, even the challenge under Article 21 was addressed on behalf of the petitioner in that case in a rather narrow frame. The argument before this Court was that at the trial involving an offence alleged to have been committed under Section 497, the woman with whom the accused is alleged to have had sexual intercourse would have no right of being heard. It was this aspect alone which was addressed in Sowmithri Vishnu when the court held that such a right of being heard can be read in an appropriate case. Ultimately, the court held that:

“12…It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationships is punishable by law. Stability of marriages is not an ideal to be scorned.”16

Sowmithri Vishnu has thus proceeded on the logic that in specifying an offence, it is for the legislature to define what constitutes the offence. Moreover, who can prosecute and who can be prosecuted, are matters which fall within the domain of the law. The inarticulate major premise of the judgment is that prosecution for adultery is an effort to protect the stability of marriages and if the legislature has sought to prosecute only a limited class of ‘adulterous relationships’, its choice could not be questioned. ‘Sowmithri Vishnu’ fails to deal with the substantive aspects of constitutional jurisprudence which have a bearing on the validity of Section 497: the guarantee of equality as a real protection against arbitrariness, the guarantee of life and personal liberty as an essential recognition of dignity, autonomy and privacy and above all gender equality as a cornerstone of a truly equal society. For these reasons, the decision in Sowmithri Vishnu cannot be regarded as a correct exposition of the constitutional position. Sowmithri Vishnu is overruled.

12 The decision of a two judge Bench in V Revathi v Union of India17 involved a challenge to Section 497 (read with Section 198(2) of the Code of Criminal Procedure) which disables a wife from prosecuting her husband for being involved in an adulterous relationship. The court noted that Section 497 permits neither the husband of the offending wife to prosecute her nor does it permit the wife to prosecute her offending husband for being disloyal. This formal sense of equality found acceptance by the court. The challenge was repelled by relying on the decision in Sowmithri Vishnu. Observing that Section 497 and Section 198(2) constitute a “legislative packet”, the court observed that the provision does not allow either the wife to prosecute an erring husband or a husband to prosecute the erring wife. In the view of the court, this indicated that there is no discrimination on the ground of sex. In the view of the court :

“5…The law does not envisage the punishment of any of the spouses at the instance of each other. Thus there is no discrimination against the woman insofar as she is not permitted to prosecute her husband. A husband is not permitted because the wife is not treated as an offender in the eye of law. The wife is not permitted as Section 198(1) read with Section 198(2) does not permit her to do so. In the ultimate analysis the law has meted out even-handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other. Thus no discrimination has been practised in circumscribing the scope of Section 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.”18

13 The decision in Revathi is a reiteration of Sowmithri Vishnu. It applies the doctrine of equality and the prohibition against discrimination on the ground of sex in a formalistic sense. The logic of the judgment is that since neither of the spouses (man or woman) can prosecute the erring spouse, the provision does not discriminate on the ground of sex. Apart from reading equality in a narrow confine, the judgment does not deal with crucial aspects bearing on the constitutionality of the provision. Revathi, like Sowmithri Vishnu does not lay down the correct legal principle.

C Relics of the past

“Our Massachusetts magistracy…have not been bold to put in force the extremity of our righteous law against her. The penalty thereof is death. But in their great mercy and tenderness of heart they have doomed Mistress Prynne to stand only a space of three hours on the platform of the pillory, and then and thereafter, for the remainder of her natural life to wear a mark of shame upon her bosom.”19

14 Section 497 of the Indian Penal Code, 1860 makes adultery a punishable offence against “whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man.” It goes on to state that, “in such case the wife shall not be punishable as an abettor.” The offence applies only to the man committing adultery. A woman committing adultery is not considered to be an “abettor” to the offence. The power to prosecute for adultery rests only with the husband of the woman.

Understanding the gendered nature of Section 497 needs an inquiry into the origins of the provision itself as well as the offence of adultery more broadly. The history of adultery throws light upon disparate attitudes toward male and female infidelity, and reveals the double standard in law and morality that has been applied to men and women.20

15 Throughout history, adultery has been regarded as an offence; it has been treated as a religious transgression, as a crime deserving harsh punishment, as a private wrong, or as a combination of these.21 The earliest recorded injunctions against adultery are found in the ancient code of the Babylonian king Hammurabi, dating from circa 1750 B.C. The code prescribed that a married woman caught in adultery be bound to her lover and thrown into water so that they drown together.22 By contrast, Assyrian law considered adultery to be a private wrong for which the husband or father of the woman committing adultery could seek compensation from her partner.23 English historian Faramerz Dabhoiwala notes that the primary purpose of these laws was to protect the property rights of men:

“Indeed, since the dawn of history every civilisation had prescribed severe laws against at least some kind of sexual immorality. The oldest surviving legal codes (c.2100-1700 BCE), drawn up by the kings of Babylon made adultery punishable by death and most other near Eastern and classical culture also treated it as a serious offence…The main concern of such laws was usually to uphold the honour and property rights of fathers, husbands and higher status groups…”24

16 In Ancient Greco-Roman societies, there existed a sexual double standard according to which adultery constituted a violation of a husband’s exclusive sexual access to his wife, for which the law allowed for acts of revenge.25 In 17 B.C., Emperor Augustus passed the Lex Julia de adulteriis coercendis, which stipulated that a father was allowed to kill his daughter and her partner when caught committing adultery in his or her husband’s house.26 While in the Judaic belief adultery merited death by stoning for both the adulteress and her partner,27 Christianity viewed adultery more as a moral and spiritual failure than as a public crime.28 The penalties of the Lex Julia were made more severe by Christian emperors. Emperor Constantine, for instance, introduced the death penalty for adultery, which allowed the husband the right to kill his wife if she committed adultery.29 Under the Lex Julia, adultery was primarily a female offence, and the law reflected the sentiments of upper-class Roman males.30

17 Once monogamy came to be accepted as the norm in Britain between the fourth and fifth centuries, adultery came to be recognized as a serious wrong that interfered with a husband’s “rights” over his wife.31 The imposition of criminal sanctions on adultery was also largely based on ideas and beliefs about sexual morality which acquired the force of law in Christian Europe during the Middle Ages.32 The development of canon law in the twelfth century enshrined the perception of adultery as a spiritual misdemeanour. In the sixteenth century, following the Reformation, adultery became a crucial issue because Protestants placed new emphasis on marriage as a linchpin of the social and moral order.33 Several prominent sixteenth century reformers, including Martin Luther and John Calvin, argued that a marriage was irreparably damaged by infidelity, and they advocated divorce in such cases.34

Concerned with the “moral corruption” prevalent in England since the Reformation, Puritans in the Massachusetts Bay Colony introduced the death penalty for committing adultery.35 The strict morality of the early English colonists is reflected in the famous 1850 novel ‘The Scarlet Letter’ by Nathaniel Hawthorne, in which an unmarried woman who committed adultery and bore a child out of wedlock was made to wear the letter A (for adulterer) when she went out in public; her lover was not so tagged, suggesting that women were punished more severely than men for adultery, especially when they had a child as evidence.36

18 In 1650, England enacted the infamous Act for Suppressing the Detestable Sins of Incest, Adultery and Fornication, which introduced the death penalty for sex with a married woman.37 The purpose of the Act was as follows:
“For the suppressing of the abominable and crying sins of…adultery… wherewith this Land is much defiled, and Almighty God highly displeased; be it enacted…That in case any married woman shall…be carnally known by any man (other than her husband)…as well the man as the woman…shall suffer death.”

The Act was a culmination of long-standing moral concerns about sexual transgressions, sustained endeavours to regulate conjugal matters on a secular plain, and a contemporaneous political agenda of socio-moral reform.38 It was repealed in 1660 during the Restoration. The common law, however, was still concerned with the effect of adultery by a married woman on inheritance and property rights. It recognized the “obvious danger of foisting spurious offspring upon her unsuspecting husband and bringing an illegitimate heir into his family.”39 Accordingly, secular courts treated adultery as a private injury and a tort for criminal conversation was introduced in the late 17th century, which allowed the husband to sue his wife’s lover for financial compensation.40

19 In 19th century Britain, married women were considered to be chattel of their husbands in law, and female adultery was subjected to ostracism far worse than male adultery because of the problem it could cause for property inheritance through illegitimate children.41 Consequently, many societies viewed chastity, together with related virtues such as modesty, as more central components of a woman’s honor and reputation than of a man’s.42 The object of adultery laws was not to protect the bodily integrity of a woman, but to allow her husband to exercise control over her sexuality, in order to ensure the purity of his own bloodline. The killing of a man engaged in an adulterous act with one’s wife was considered to be manslaughter, and not murder.43 In R v Mawgridge,44 Judge Holt wrote that:
“…[A] man is taken in adultery with another man’s wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for Jealousy is the Rage of a Man and Adultery is the highest invasion of property.” (Emphasis supplied)

20 In his Commentaries on the Laws of England, William Blackstone wrote that under the common law, “the very being or legal existence of the woman [was] suspended during the marriage, or at least [was] incorporated and consolidated into that of the husband: under whose wing, protection and cover, she performe[d] everything.”45 In return for support and protection, the wife owed her husband “consortium” of legal obligations, which included sexual intercourse.46 Since adultery interfered with the husband’s exclusive entitlements, it was considered to be the “highest possible invasion of property,” similar to theft.47 In fact, civil actions for adultery evolved from actions for enticing away a servant from a master and thus depriving the master of the quasi-proprietary interest in his services.48

Faramerz Dabhoiwala notes that a man’s wife was considered to be his property, and that another man’s “unlawful copulation” with her warranted punishment:

“…[T]he earliest English law codes, which date from this time, evoke a society where women were bought and sold and lived constantly under the guardianship of men. Even in cases of consensual sex, its system of justice was mainly concerned with the compensation one man should pay to another for unlawful copulation with his female chattel.”

21 When the IPC was being drafted, adultery was not a criminal offence in common law. It was considered to be an ecclesiastical wrong “left to the feeble coercion of the Spiritual Court, according to the rules of Canon Law.”49 Lord Thomas Babington Macaulay, Chairman of the First Law Commission of India and principal architect of the IPC, considered the possibility of criminalizing adultery in India, and ultimately concluded that it would serve little purpose.50 According to Lord Macaulay, the possible benefits from an adultery offence could be better achieved through pecuniary compensation.51 Section 497 did not find a place in the first Draft Penal Code prepared by Lord Macaulay. On an appraisal of the facts and opinions collected from all three Presidencies about the feasibility criminalizing adultery, he concluded in his Notes to the IPC that:

“…All the existing laws for the punishment of adultery are altogether inefficacious for the purpose of preventing injured husbands of the higher classes from taking the law into their own hands; secondly; that scarcely any native of higher classes ever has recourse to the courts of law in a case of adultery for redress against either his wife, or her gallant; thirdly, that the husbands who have recourse in case of adultery to the Courts of law are generally poor men whose wives have run away, that these husbands seldom have any delicate feelings about the intrigue, but think themselves injured by the elopement, that they consider wives as useful members of their small households, that they generally complain not of the wound given to their affections, not of the stain on their honor , but of the loss of a menial whom they cannot easily replace, and that generally their principal object is that the women may be sent back.” These things being established, it seems to us that no advantage is to be expected from providing a punishment for adultery. We think it best to treat adultery merely as a civil injury.”52 (Emphasis supplied)

22 The Law Commissioners, in their Second Report on the Draft Penal Code, disagreed with Lord Macaulay’s view. Placing heavy reliance upon the status of women in India, they concluded that:

“While we think that the offence of adultery ought not to be omitted from the code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in note Q, regarding the condition of the women, in this country, in deference to it, we would render the male offender alone liable to punishment. We would, however, put the parties accused of adultery on trial “together”, and empower the Court in the event of their conviction to pronounce a decree of divorce against the guilty woman, if the husband sues for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine.”53

The Law Commissioners’ decision to insert Section 497 into the IPC was rooted in their concern about the possibility of the “natives” resorting to illegal measures to avenge the injury in cases of adultery:

“The backwardness of the natives to have recourse to the courts of redress in cases of adultery, [Colonel Sleeman] asserts, “arises from the utter hopelessness on their part of ever getting a conviction in our courts upon any evidence that such cases admit of;” that is to say, in courts in which the Mahommedan law is observed. “The rich man…not only feels the assurance that he could not get a conviction, but dreads the disgrace of appearing publicly in one court after another, to prove…his own shame and his wife’s dishonor. He has recourse to poison secretly, or with his wife’s consent; and she will generally rather take it than be turned out into the streets a degraded outcast. The seducer escapes with impunity, he suffers nothing, while his poor victim suffers all that human nature is capable of enduring…The silence of the Penal Code will give still greater impunity to the seducers, while their victims will, in three cases out of four, be murdered, or driven to commit suicide. Where husbands are in the habit of poisoning their guilty wives from the want of legal means of redress, they will sometimes poison those who are suspected upon insufficient grounds, and the innocent will suffer.”54

Section 497 and Section 198 are seen to treat men and women unequally, as women are not subject to prosecution for adultery, and women cannot prosecute their husbands for adultery. Additionally, if there is “consent or connivance” of the husband of a woman who has committed adultery, no offence can be established. In its 42nd Report, the Law Commission of India considered the legislative history of Section 497 and the purported benefit of criminal sanctions for adultery. The Committee concluded that, “though some of us were personally inclined to recommend repeal of the section, we think on the whole that the time has not yet come for making such a radical change in the existing position.”55 It recommended that Section 497 be retained, but with a modification to make women who commit adultery liable as well.

23 In its 156th Report, the Law Commission made a proposal which it believed reflected the “‘transformation’ which the society has undergone,” by suggesting removing the exemption from liability for women under Section 497.56 In 2003, the Justice Malimath Committee recommended that Section 497 be made gender-neutral, by substituting the words of the provision with “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery.”57 The Committee supported earlier proposals to not repeal the offence, but to equate liability for the sexes:

“The object of the Section is to preserve the sanctity of marriage. Society abhors marital infidelity. Therefore, there is no reason for not meting out similar treatment to the wife who has sexual intercourse with a man (other than her husband).”58

Neither the recommendations of the Law Commission nor those of the Malimath Committee have been accepted by the Legislature. Though women are exempted from prosecution under Section 497, the underlying notion upon which the provision rests, which conceives of women as property, is extremely harmful. The power to prosecute lies only with the husband (and not to the wife in cases where her husband commits adultery), and whether the crime itself has been committed depends on whether the husband provides “consent for the allegedly adulterous act.”

24 Women, therefore, occupy a liminal space in the law: they cannot be prosecuted for committing adultery, nor can they be aggrieved by it, by virtue of their status as their husband’s property. Section 497 is also premised upon sexual stereotypes that view women as being passive and devoid of sexual agency. The notion that women are ‘victims’ of adultery and therefore require the beneficial exemption under Section 497 has been deeply criticized by feminist scholars, who argue that such an understanding of the position of women is demeaning and fails to recognize them as equally autonomous individuals in society.59 Effectively, Indian jurisprudence has interpreted the constitutional guarantee of sex equality as a justification for differential treatment: to treat men and women differently is, ultimately, to act in women’s interests.60 The status of Section 497 as a “special provision”61 operating for the benefit of women, therefore, constitutes a paradigmatic example of benevolent patriarchy.

25 Throughout history, the law has failed to ask the woman question.62 It has failed to interrogate the generalizations or stereotypes about the nature, character and abilities of the sexes on which laws rest, and how these notions affect women and their interaction with the law. A woman’s ‘purity’ and a man’s marital ‘entitlement’ to her exclusive sexual possession may be reflective of the antiquated social and sexual mores of the nineteenth century, but they cannot be recognized as being so today. It is not the “common morality” of the State at any time in history, but rather constitutional morality, which must guide the law. In any democracy, constitutional morality requires the assurance of certain rights that are indispensable for the free, equal, and dignified existence of all members of society. A commitment to constitutional morality requires us to enforce the constitutional guarantees of equality before law, non-discrimination on account of sex, and dignity, all of which are affected by the operation of Section 497.

D Across frontiers

26 The last few decades have been characterized by numerous countries around the world taking measures to decriminalize the offence of adultery due to the gender discriminatory nature of adultery laws as well as on the ground that they violate the right to privacy. However, progressive action has primarily been taken on the ground that provisions penalising adultery are discriminatory against women either patently on the face of the law or in their implementation. Reform towards achieving a more egalitarian society in practice has also been driven by active measures taken by the United Nations and other international human rights organizations, where it has been emphasized that even seemingly gender- neutral provisions criminalising adultery cast an unequal burden on women:63
“Given continued discrimination and inequalities faced by women, including inferior roles attributed to them by patriarchal and traditional attitudes, and power imbalances in their relations with men, the mere fact of maintaining adultery as a criminal offence, even when it applies to both women and men, means in practice that women mainly will continue to face extreme vulnerabilities, and violation of their human rights to dignity, privacy and equality.”

The abolishing of adultery has been brought about in equal measure by legislatures and courts. When decisions have been handed down by the judiciary across the world, it has led to the creation of a rich body of transnational jurisprudence. This section will focus on a few select comparative decisions emanating from the courts of those countries where the provision criminalizing
adultery has been struck down through judicial action. The decisions of these courts reflect how the treatment of the law towards adultery has evolved with the passage of time and in light of changing societal values.

27 In 2015, the South Korean Constitutional Court,64 by a majority of 7-2 struck down Article 241 of the Criminal Law; a provision which criminalized adultery with a term of imprisonment of two years as unconstitutional. In doing so, South Korea joined a growing list of countries in Asia and indeed around the world that have taken the measure of effacing the offence of adultery from the statute books, considering evolving public values and societal trends. The Constitutional Court had deliberated upon the legality of the provision four times previously65, but chose to strike it down when it came before it in 2015, with the Court’s judgement acknowledging the shifting public perception of individual rights in their private lives.

The majority opinion of the Court was concurred with by five of the seven judges66 who struck down the provision. The majority acknowledged that the criminal provision had a legitimate legislative purpose in intending “to promote the marriage system based on good sexual culture and practice and monogamy and to preserve marital fidelity between spouses.” However, the Court sought to strike a balance between the legitimate interest of the legislature in promoting the institution of marriage and marital fidelity vis-à-vis the fundamental right of an individual to self-determination, which included sexual-self-determination, and was guaranteed under Article 10 of their Constitution.67 The Court held:

“The right to self-determination connotes the right to sexual self-determination that is the freedom to choose sexual activities and partners, implying that the provision at issue restricts the right to sexual self-determination of individuals. In addition, the provision at Issue also restricts the right to privacy protected under Article 17 of the Constitution in that it restricts activities arising out of sexual life belonging to the intimate private domain.”

The Court used the test of least restrictiveness, and began by acknowledging that there no longer existed public consensus on the criminalization of adultery, with the societal structure having changed from holding traditional family values and a typeset role of family members to sexual views driven by liberal thought and individualism. While recognizing that marital infidelity is immoral and unethical, the Court stated that love and sexual life were intimate concerns, and they should not be made subject to criminal law. Commenting on the balance between an individual’s sexual autonomy vis-à-vis societal morality, the Court remarked:
“…the society is changing into one where the private interest of sexual autonomy is put before the social interest of sexual morality and families from the perspective of dignity and happiness of individuals.”68 Next, the Court analysed the appropriateness and effectiveness of criminal punishment in curbing the offence of adultery. Addressing the question of whether adultery should be regulated, the Court stated that modern criminal law dictated that the State should not seek to interfere in an act that is not socially harmful or deleterious to legal interests, simply because it is repugnant to morality. Moreover, it held that the State had no business in seeking to control an individual’s actions which were within the sphere of his or her constitutionally protected rights of privacy and self-determination.

Moving on to the effectiveness of the provision at hand, the Court remarked that criminalizing adultery did not help save a failing marriage. The Court remarked that it was obvious that once a spouse was accused of adultery, the consequence was generally intensified spousal conflict as opposed to the possibility of family harmony:
“Existing families face breakdown with the invoking of the right to file an accusation. Even after cancellation of the accusation, it is difficult to hope for emotional recovery between spouses. Therefore, the adultery crime can no longer contribute to protecting the marital system or family order. Furthermore, there is little possibility that a person who was punished for adultery would remarry the spouse who had made an accusation against himself/herself. It is neither possible to protect harmonious family order because of the intensified conflict between spouses in the process of criminal punishment of adultery.”69 Addressing the concern that an abolition of a penal consequence would result in “chaos in sexual morality” or an increase of divorce due to adultery, the Court concluded that there was no data at all to support these claims in countries where adultery is repealed, stating:

“Rather, the degree of social condemnation for adultery has been reduced due to the social trend to value the right to sexual self-determination and the changed recognition on sex, despite of the punishment of adultery. Accordingly, it is hard to anticipate a general and special deterrence effect for adultery from the perspective of criminal policy as it loses the function of regulating behaviour.”70

The Court also analysed the argument that adultery provisions protected women:

“It is true that the existence of adultery crimes in the past Korean society served to protect women. Women were socially and economically underprivileged, and acts of adultery were mainly committed by men. Therefore, the existence of an adultery crime acted as psychological deterrence for men, and, furthermore, enabled female spouses to receive payment of compensation for grief or divided assets from the male spouse on the condition of cancelling the adultery accusation.

However, the changes of our society diluted the justification of criminal punishment of adultery. Above all, as women’s earning power and economic capabilities have improved with more active social and economic activities, the premise that women are the economically disadvantaged does not apply to all married couples.”

Finally, the Court concluded its analysis by holding that the interests of enforcing monogamy, protecting marriage and promoting marital fidelity, balanced against the interference of the State in the rights to privacy and sexual autonomy were clearly excessive and therefore failed the test of least restrictiveness.71

28 In 2007, the Ugandan Constitutional Court in Law Advocacy for Women in Uganda v Attorney General of Uganda72, was called upon to rule on the constitutionality of Section 154 of the Penal Code, on, the grounds that it violated various protections granted by the Ugandan Constitution and meted out discriminatory treatment between women and men. The law as it stood allowed a married man to have a sexual relationship with an unmarried woman. Moreover, only a man could be guilty of the offence of adultery when he had sexual intercourse with a married woman. The same provision, however, penalized a married woman who engaged in a sexual relationship with an unmarried or married man outside of the marriage. The penalties for the offence also prescribed a much stricter punishment for women as compared to their male counterparts.73 The challenge was brought primarily under Article 21 of the Ugandan Constitution, which guaranteed equality under the law, Article 24 which mandates respect for human dignity and protection from inhuman treatment and Article 33(1), which protected the rights of women under the Constitution. 74

The Respondent prayed that the Court consider making the provision of adultery equal in its treatment of men and women, instead of striking it down completely. However, in its holding, the Court denied this request, holding it could not prescribe a punishment under penal law to change the statute. The Court held that Section 154 of the Penal Code was wholly unconstitutional as being violative of the provisions of the Constitution, and remarked:

“…the respondent did not point out to us areas that his Court can or should modify and adapt to bring them in conformity with the provisions of the Constitution. The section is a penal one and this Court in our considered opinion cannot create a sentence that the courts can impose on adulterous spouses.

Consequently, it is our finding that the provision of section 154 of the Penal Code Act is inconsistent with the stated provisions of the Constitution and it is void.”75

29 In 2015, in DE v RH,76 the Constitutional Court of South Africa held that an aggrieved spouse could no longer seek damages against a third party in cases of adultery. Madlanga J poignantly remarked on the preservation of marriage:

“…although marriage is ‘a human institution which is regulated by law and protected by the Constitution and which, in turn, creates genuine legal duties . . . Its essence . . . consists in the readiness, founded in morals, of the parties to the marriage to create and to maintain it’. If the parties to the marriage have lost that moral commitment, the marriage will fail and punishment meted out to a third party is unlikely to change that.”77

The decisions of the US Supreme Court bearing on the issue of privacy have been analysed in an incisive article, titled “For Better or for Worse: Adultery, Crime and The Constitution”78, by Martin Siegel. He presents three ways in which adultery implicates the right to privacy. The first is that adultery must be viewed as a constitutionally protected marital choice. Second, that certain adulterous relationships are protected by the freedom of association and finally, that adultery constitutes an action which is protected by sexual privacy.79 A brief study is also undertaken on whether action penalizing adultery constitutes a legitimate interest of the State.

The first privacy interest in adultery is the right to marital choice. The U.S. Supreme Court has upheld the values of ‘fundamental liberty’, ‘freedom of choice’ and ‘the ‘right to privacy’ in marriage. With this jurisprudence, the author argues, it would be strange if a decision to commit adultery is not a treated as a matter of marriage and family life as expressed in Cleveland Board80, ‘an act occurring in marriage’, as held in Griswold81 or a ‘matter of marriage and family life’ as elucidated in Carey.82

Siegel posits that a decision to commit adultery is a decision ‘relating to marriage and family relationships’ and therefore, falls within the domain of protected private choices. He observes that the essence of the offence is in fact the married status of one of the actors, and the mere fact that the commission of the act consisted of a mere sexual act or a series of them is legally irrelevant. If the argument that adultery, though unconventional, is an act related to marriage and therefore fundamentally private is accepted, then it deserves equal protection. Siegel cites Laurence Tribe, on accepting the ‘unconventional variants’ that also form a part of privacy:
“Ought the “right to marriage,” as elucidated by Griswold, Loving v. Virginia, Zablocki, Boddie v. Connecticut and Moore, also include marriage’s “unconventional variants”-in this case the adulterous union?”83

The mere fact that adultery is considered unconventional in society does not justify depriving it of privacy protection. The freedom of making choices also encompasses the freedom of making an ‘unpopular’ choice. This was articulated by Justice Blackmun in his dissent in Hardwick84:

“A necessary corollary of giving individuals freedom to choose how to conduct their lives is acceptance of the fact that different individuals will make different choices.”85

Siegel concludes that the privacy protections afforded to marriage must extend to all choices made within the marriage:

“The complexity and diversity among marriages make it all the more important that the privacy associated with that institution be construed to include all kinds of marriages, sexually exclusive as well as open, ‘good’, as well as ‘bad’.”86

Siegel then proceeds to examine the next privacy interest in adultery, that of the right to association. The right to freedom of association he states is ‘a close constitutional relative of privacy’87, and they often interact in an intertwined manner. Siegel proceeds to explain that adultery must not simply be looked at as an act of consensual adult sexual activity, as sexual activity may simply be one element in a continuum of interactions between people:

“Sexual activity may be preliminary or incidental to a developing association, or it may be its final culmination and solidification. In either case, it is simply one more element of the relationship. Two people may have sex upon first meeting. In this case, associational interests seem less important, although “loveless encounters are sometimes prerequisites for genuine love relationships; to forbid the former is, therefore, to inhibit the latter.”‘ 88

Next, Siegel examines the plausible protection of adultery through the lens of the freedom of expression. Since the act of engaging in sexual activity can be interpreted as being expressive, Siegel claims adultery might also implicate First Amendment rights. In support he cites a body of case law89,where courts have held that First Amendment rights are not limited to merely verbal expression but also encompass the right to ‘expressive association’.

In concluding his section on the right to associate, Siegel warns against the dangers of classifying adultery solely as a sexual activity, as doing so would be akin to protecting a part of the relationship and criminalizing the other. This would be manifestly unjust:

“It is difficult, both theoretically and practically, to single out the sexual contacts two people may have from the rest of their relationship- to criminalize the one and constitutionally protect as fundamental the other”. 90

Lastly, Siegel discusses the connection between adultery and the right to sexual privacy. It is accepted that a right to privacy safeguards an individual’s deeply personal choices which includes a recognition accorded to the inherently private nature of all consensual adult sexual activity.91 This understanding of sexual privacy found favour with the U.S. Supreme Court, which in Thornburgh v American College of Obstetricians and Gynaecologists92 quoted Charles Fried with approval:

“The concept of privacy embodies the moral fact that a person belongs to himself and not to others nor to society as a whole.”93

Siegel reiterates the underlying intangible value of adult consensual sexual activity:

“The real importance of sexuality to humans, more so in today’s world of effective birth control than ever, lies in the possibilities for self-realization and definition inherent in sexual choices. Sexual experience offers “self- transcendence, expression of private fantasy, release of inner tensions, and meaningful and acceptable expression of regressive desires to be again the free child – unafraid to lose control, playful, vulnerable, spontaneous, sensually loved.”94

Reflecting on the relationship between marital privacy and associational freedom, Spiegel remarks the “heterogeneity of experience”, resulting in a variety of choices, necessarily include the adulterous union which must be protected since it is unrealistic to expect all individuals to conform to society’s idea of sexuality:

“Because sex is so much a part of our personhood, we should not expect that people different in so many other ways will be identical sexually. For some, adultery is a cruel betrayal, while for others it is just comeuppance for years of spousal neglect. In some marriages, sex is the epitome of commitment, while in others spouses jointly and joyfully dispense with sexual monogamy.”95

In concluding the author states that the foregoing three-layered analysis left no room for doubt that adultery was a matter of marriage.

It therefore deserved to be protected like all other affairs occurring in marriage and implicated routine privacy-based freedoms, and it was imperative to treat is as such. Spiegel concludes by quoting the U.S. Supreme Court in Eisenstadt v Braid, on the importance of protecting the power to make a ‘bad’ choice in a marriage:

“A marriage’s privacy and autonomy are the best routes to safeguarding liberty and pluralism. This is no less true when the power to choose, as it inevitably will, results in bad choices. It is a confidence in nothing less than the theory underscoring our entire political order: Our system of government requires that we have faith in the ability of the individual to decide wisely, if only he is fully appraised of the merits of the controversy.”96

While acknowledging the interest that the State has in preserving the institution of marriage, Siegel precisely points out the inefficacy of attaching criminal sanctions to adultery in the following words:
“Even if we accept that a state is trying to foster the interests of specific deceived spouses by its laws criminalizing adultery, it is impossible to believe that a criminal penalty imposed on one of the spouses would somehow benefit a marriage instead of representing the final nail in its coffin. And if deterrence of adultery is the goal, then the state’s failure to arrest and prosecute offenders has long since removed any fear of legal sanction.”97

Deborah L Rhode in her book titled “Adultery” argues that “intermittent idiosyncratic invocations of adultery prohibitions do little to enforce marital vows or reinforce confidence in the rule of law. There are better ways to signal respect for the institution of marriage and better uses of law enforcement than policing private, consensual sexual activity.”98

E Confronting patriarchy

“Norms and ideals arise from the yearning that it is an expression of freedom: it does not have to be this way, it could be otherwise.”99

30 The petitioner urged that (i) The full realisation of the ideal of equality enshrined in Article 14 of the Constitution ought to be the endeavour of this Court; (ii) the operation of Section 497 is a denial of equality to women in marriage; and (iii) the provision is manifestly arbitrary and amounts to a violation of the constitutional guarantee of substantive equality.

The act which constitutes the offence under Section 497 of the Penal Code is a man engaging in sexual intercourse with a woman who is the “wife of another man”. For the offence to arise, the man who engages in sexual intercourse must either know or have reason to believe that the woman is married. Though a man has engaged in sexual intercourse with a woman who is married, the offence of adultery does not come into being where he did so with the consent or connivance of her husband.

These ingredients of Section 497 lay bare several features which bear on the challenge to its validity under Article 14. The fact that the sexual relationship between a man and a woman is consensual is of no significance to the offence, if the ingredients of the offence are established. What the legislature has constituted as a criminal offence is the act of sexual intercourse between a man and a woman who is “the wife of another man”. No offence exists where a man who has a subsisting marital relationship engages in sexual intercourse with a single woman. Though adultery is considered to be an offence relating to marriage, the legislature did not penalise sexual intercourse between a married man and a single woman. Even though the man in such a case has a spouse, this is considered to be of no legal relevance to defining the scope of the offence. That is because the provision proceeds on the notion that the woman is but a chattel; the property of her husband. The fact that he is engaging in a sexual relationship outside marriage is of no consequence to the law. The woman with whom he is in marriage has no voice of her own, no agency to complain. If the woman who is involved in the sexual act is not married, the law treats it with unconcern. The premise of the law is that if a woman is not the property of a married man, her act would not be deemed to be ‘adulterous’, by definition.

31 The essence of the offence is that a man has engaged in an act of sexual intercourse with the wife of another man. But if the man to whom she is married were to consent or even to connive at the sexual relationship, the offence of adultery would not be established. For, in the eyes of law, in such a case it is for the man in the marital relationship to decide whether to agree to his spouse engaging in a sexual act with another. Indeed, even if the two men (the spouse of the woman and the man with whom she engages in a sexual act) were to connive, the offence of adultery would not be made out.

32 Section 497 is destructive of and deprives a woman of her agency, autonomy and dignity. If the ostensible object of the law is to protect the ‘institution of marriage’, it provides no justification for not recognising the agency of a woman whose spouse is engaged in a sexual relationship outside of marriage. She can neither complain nor is the fact that she is in a marital relationship with a man of any significance to the ingredients of the offence. The law also deprives the married woman who has engaged in a sexual act with another man, of her agency. She is treated as the property of her husband. That is why no offence of adultery would be made out if her husband were to consent to her sexual relationship outside marriage. Worse still, if the spouse of the woman were to connive with the person with whom she has engaged in sexual intercourse, the law would blink. Section 497 is thus founded on the notion that a woman by entering upon marriage loses, so to speak, her voice, autonomy and agency. Manifest arbitrariness is writ large on the provision.

33 The test of manifest arbitrariness is rooted in Indian jurisprudence. In E P Royappa v State of Tamil Nadu100, Justice Bhagwati characterised equality as a “dynamic construct” which is contrary to arbitrariness:

“85…Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14…”101
(Emphasis supplied)

The Constitution Bench in Shayara Bano v Union of India102 held the practice of Triple Talaq to be unconstitutional. Justice Rohinton Nariman, in his concurring opinion, applied the test of manifest arbitrariness to hold that the practice does not pass constitutional muster:

“87. The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] when it is said that a constitutional challenge can succeed on the ground that a law is “disproportionate, excessive or unreasonable”, yet such challenge would fail on the very ground of the law being “unreasonable, unnecessary or unwarranted”. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.”103
(Emphasis supplied)

On the application of the test of manifest arbitrariness to invalidate legislation, the learned Judge held thus:

“ 101…there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”104

34 The decision in Shayara Bano, holds that legislation or state action which is manifestly arbitrary would have elements of caprice and irrationality and would be characterized by the lack of an adequately determining principle. An “adequately determining principle” is a principle which is in consonance with constitutional values. With respect to criminal legislation, the principle which determines the “act” that is criminalized as well as the persons who may be held criminally culpable, must be tested on the anvil of constitutionality. The principle must not be determined by majoritarian notions of morality which are at odds with constitutional morality.

In Navtej Singh Johar v Union of India, (“Navtej”)105 Justice Indu Malhotra emphasized the need for a “sound” or “rational principle” underlying a criminal provision:

“ …Section 377 insofar as it criminalises consensual sexual acts between adults in private, is not based on any sound or rational principle…

Further, the phrase “carnal intercourse against the order of nature” in Section 377 as a determining principle in a penal provision, is too open-ended, giving way to the scope for misuse against members of the LGBT community.”

35 The hypothesis which forms the basis of the law on adultery is the subsistence of a patriarchal order. Section 497 is based on a notion of morality which fails to accord with the values on which the Constitution is founded. The freedoms which the Constitution guarantees inhere in men and women alike. In enacting Section 497, the legislature made an ostensible effort to protect the institution of marriage. ‘Ostensible’ it is, because the provision postulates a notion of marriage which subverts the equality of spouses. Marriage in a constitutional regime is founded on the equality of and between spouses. Each of them is entitled to the same liberty which Part III guarantees. Each of them is entitled to take decisions in accordance with his and her conscience and each must have the ability to pursue the human desire for fulfilment. Section 497 is based on the understanding that marriage submerges the identity of the woman. It is based on a notion of marital subordination. In recognising, accepting and enforcing these notions, Section 497 is inconsistent with the ethos of the Constitution. Section 497 treats a woman as but a possession of her spouse. The essential values on which the Constitution is founded – liberty, dignity and equality – cannot allow such a view of marriage. Section 497 suffers from manifest arbitrariness.

36 While engrafting the provision into Chapter XX of the Penal Code – “of offences relating to marriage” – the legislature has based the offence on an implicit assumption about marriage. The notion which the law propounds and to which it imposes the sanctions of penal law is that the marital tie subordinates the role and position of the woman. In that view of marriage, the woman is bereft of the ability to decide, to make choices and give free expression to her personality. Human sexuality is an essential aspect of identity. Choices in matters of sexuality are reflective of the human desire for expression. Sexuality cannot be construed purely as a physiological attribute. In its associational attributes, it links up with the human desire to be intimate with a person of one’s choice. Sharing of physical intimacies is a reflection of choice. In allowing individuals to make those choices in a consensual sphere, the Constitution acknowledges that even in the most private of zones, the individual must have the ability to make essential decisions. Sexuality cannot be dis-associated from the human personality. For, to be human involves the ability to fulfil sexual desires in the pursuit of happiness. Autonomy in matters of sexuality is thus intrinsic to a dignified human existence. Human dignity both recognises and protects the autonomy of the individual in making sexual choices. The sexual choices of an individual cannot obviously be imposed on others in society and are premised on a voluntary acceptance by consenting parties. Section 497 denudes the woman of the ability to make these fundamental choices, in postulating that it is only the man in a marital relationship who can consent to his spouse having sexual intercourse with another. Section 497 disregards the sexual autonomy which every woman possesses as a necessary condition of her existence. Far from being an equal partner in an equal relationship, she is subjugated entirely to the will of her spouse. The provision is proffered by the legislature as an effort to protect the institution of marriage. But it proceeds on a notion of marriage which is one sided and which denies agency to the woman in a marital tie. The ability to make choices within marriage and on every aspect concerning it is a facet of human liberty and dignity which the Constitution protects. In depriving the woman of that ability and recognising it in the man alone, Section 497 fails to meet the essence of substantive equality in its application to marriage. Equality of rights and entitlements between parties to a marriage is crucial to preserve the values of the Constitution. Section 497 offends that substantive sense of equality and is violative of Article 14.

37 The procedural law which has been enacted in Section 198 of the Code of Criminal Procedure 1973 re-enforces the stereotypes implicit in Section 497. Cognizance of an offence under Chapter XX of the Penal Code can be taken by a Court only upon a complaint of a person aggrieved. In the case of an offence punishable under Section 497, only the husband of the woman is deemed to be aggrieved by the offence. In any event, once the provisions of Section 497 are held to offend the fundamental rights, the procedure engrafted in Section 198 will cease to have any practical relevance.

38 Section 497 amounts to a denial of substantive equality. The decisions in Sowmithri and Revathi espoused a formal notion of equality, which is contrary to the constitutional vision of a just social order. Justness postulates equality. In consonance with constitutional morality, substantive equality is “directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.”106 To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens.

The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals.107 The disadvantage must be addressed not by treating a woman as ‘weak’ but by construing her entitlement to an equal citizenship. The former legitimizes patronising attitudes towards women. The latter links true equality to the realisation of dignity. The focus of such an approach is not simply on equal treatment under the law, but rather on the real impact of the legislation.108 Thus, Section 497 has to be examined in the light of existing social structures which enforce the position of a woman as an unequal participant in a marriage.

Catherine Mackinnon implores us to look more critically at the reality of this family sphere, termed ‘‘personal,’’ and view the family as a “crucible of women’s unequal status and subordinate treatment sexually, physically, economically, and civilly.”109 In a social order which has enforced patriarchal notions of sexuality upon women and which treats them as subordinate to their spouses in heterosexual marriages, Section 497 perpetuates an already existing inequality.

39 Facially, the law may be construed to operate as an exemption from criminal sanctions. However, when viewed in the context of a social structure which considers the husband as the owner of the wife’s sexuality, the law perpetuates a deeply entrenched patriarchal order. The true realisation of the substantive content of equality must entail an overhaul of these social structures. When all visible and invisible forms of inequality- social, cultural, economic, political or sexual- are recognised and obliterated; a truly egalitarian existence can be imagined.

F ‘The Good Wife’

Article 15 of the Constitution reads thus:

“15. (1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
(Emphasis supplied)

40 Article 15 prohibits the State from discriminating on grounds only of sex.

The Petitioners contend that (i) Section 497, in so far as it places a husband and wife on a different footing in a marriage perpetuates sex discrimination; (ii) Section 497 is based on the patriarchal conception of the woman as property, entrenches gender stereotypes, and is consequently hit by Article 15.

From a joint reading of Section 497 of the Indian Penal Code and Section 198(2) of the Code of Criminal Procedure, the following propositions emerge:

i. Sexual relations by a married woman with another man outside her marriage without the consent of her husband is criminalized;

ii. In an ‘adulterous relationship’, the man is punished for adultery, while the woman is not (even as an abettor);

iii. Sexual relations by a married man with an unmarried woman are not criminalized;

iv. Section 497 accords primacy to the consent of the husband to determine whether criminality is attached to the man who has consensual sexual relations with the spouse of the former. Consent or willingness of the woman is irrelevant to the offence;

v. A man who has sexual relations with the spouse of another man is relieved of the offence only if her spouse has consented or, even connived; and

vi. Section 497, IPC, read with Section 198, Cr.PC, gives the man the sole right to lodge a complaint and precludes a woman from initiating criminal proceedings.

41 The operation of Section 497, by definition, is confined to the sexual relations of a woman outside her marriage. A man who has sexual intercourse with a married woman without the consent or connivance of her husband, is liable to be prosecuted under the Section. However, a married man may engage in sexual relations outside marriage with a single woman without any repercussion in criminal law. Though granted immunity from prosecution, a woman is forced to consider the prospect of the penal action that will attach upon the individual with whom she engages in a sexual act. To ensure the fidelity of his spouse, the man is given the power to invoke the criminal sanction of the State. In effect, her spouse is empowered to curtail her sexual agency. The consent of the husband serves as the key to the exercise of the sexual agency of his spouse. That the married woman is in a consensual relationship, is of no consequence to the possible prosecution.

A married man may engage in sexual relations with an unmarried woman who is not his wife without the fear of opening his partner to prosecution and without the consent of his spouse. No recourse is provided to a woman against her husband who engages in sexual relations outside marriage. The effect of Section 497 is to allow the sexual agency of a married woman to be wholly dependent on the consent or connivance of her husband. Though Section 497 does not punish a woman engaging in adultery as an abettor, a married man and a married woman are placed on different pedestals in respect to their actions. The effect of Section 497, despite granting immunity from prosecution to the married woman, is to attach a notion of wrongdoing to the exercise of her sexual agency. Despite exempting her from prosecution, the exercise of her sexual agency is contingent on the consent or connivance of the husband. A husband is considered an aggrieved party by the law if his wife engages in sexual intercourse with another man, but the wife is not, if her husband does the same. Viewed from this angle, Section 497 discriminates between a married man and a married woman to her detriment on the ground of sex. This kind of discrimination is prohibited by the non-discrimination guarantee in Article 15 of the Constitution. Section 497 also places a woman within marriage and the man with whom she shares a sexual relationship outside marriage on a different footing.

42 Section 497 criminalizes the conduct of the man who has sexual intercourse with the wife of another without his consent. It exempts women from criminal liability. Underlying this exemption is the notion that women, being denuded of sexual agency, should be afforded the ‘protection’ of the law. In criminalizing the accused who engages in the sexual relationship, the law perpetuates a gender stereotype that men, possessing sexual agency are the seducers, and that women, as passive beings devoid of sexual agency, are the seduced. The notion that a woman is ‘submissive’, or worse still ‘naïve’ has no legitimacy in the discourse of a liberal constitution. It is deeply offensive to equality and destructive of the dignity of the woman. On this stereotype, Section 497 criminalizes only the accused man.

43 Pertinent to the present enquiry, is that the provision allows only the husband to initiate a prosecution for adultery. The consent or connivance of the husband precludes prosecution. If a husband consents, his spouse is effectively granted permission to exercise her sexual agency with another individual. This guarantees a degree of control to the husband over the sexual agency of his spouse. As a relic of Victorian morality, this control over the sexual agency of the spouse, views the wife as the property of the husband. Fidelity of the woman, and the husband’s control over it, is seen as maintaining the ‘property’ interest of a husband in his wife.110 In this view, a woman is confounded with things that can be possessed. In construing the spouse as a passive or inanimate object, the law on adultery seeks to punish a person who attempts theft on the property of the husband. Coontz and Henderson write that the stabilization of property rights and the desire to pass on one’s property to legitimate heirs, were what motivated men to restrict the sexual behavior of their wives.111

44 Underlying Section 497 is a gender stereotype that the infidelity of men is normal, but that of a woman is impermissible. In condemning the sexual agency of the woman, only the husband, as the ‘aggrieved’ party is given the right to initiate prosecution. The proceedings once initiated, would be geared against the person who committed an act of ‘theft’ or ‘trespass’ upon his spouse. Sexual relations by a man with another man’s wife is therefore considered as theft of the husband’s property. Ensuring a man’s control over the sexuality of his wife was the true purpose of Section 497.

Implicit in seeking to privilege the fidelity of women in a marriage, is the assumption that a woman contracts away her sexual agency when entering a marriage. That a woman, by marriage, consents in advance to sexual relations with her husband or to refrain from sexual relations outside marriage without the permission of her husband is offensive to liberty and dignity. Such a notion has no place in the constitutional order. Sexual autonomy constitutes an inviolable core of the dignity of every individual. At the heart of the constitutional rights guaranteed to every individual is a primacy of choice and the freedom to determine one’s actions. Curtailing the sexual autonomy of a woman or presuming the lack of consent once she enters a marriage is antithetical to constitutional values.

45 A provision of law must not be viewed as operating in isolation from the social, political, historical and cultural contexts in which it operates. In its operation, law “permeates and is inseparable from everyday living and knowing, and it plays an important role in shaping (legal) consciousness.”112 A contextual reading of the law shows that it influences social practices, and makes “asymmetries of power seem, if not invisible, natural and benign”.113 Section 497 has a significant social impact on the sexual agency of women. It builds on existing gender stereotypes and bias and further perpetuates them. Cultural stereotypes are more forgiving of a man engaging in sexual relations than a woman. Women then are expected to be chaste before and faithful during marriage. In restricting the sexual agency of women, Section 497 gives legal recognition to socially discriminatory and gender-based norms. Sexual relations for a woman were legally and socially permissible when it was within her marriage. Women who committed adultery or non-marital sex were labeled immoral, shameful, and were criminally condemned.

In Anuj Garg v Hotel Association of India,114 this Court struck down Section 30 of the Punjab Excise Act, 1914 which prohibited the employment of women in premises where liquor or other intoxicating drugs were consumed by the public. Holding that the law suffered from “incurable fixations of stereotype morality and conception of sexual role”, the Court took into account “traditional cultural norms as also the state of general ambience in the society” and held that “no law in its ultimate effect should end up perpetuating the oppression of women.”

In Navtej, one of us (Chandrachud J.) held thus:

“A discriminatory act will be tested against constitutional values. A discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination, whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate. Such a discrimination will be in violation of the constitutional guarantee against discrimination in Article 15(1).”

46 Section 497 rests on and perpetuates stereotypes about women and sexual fidelity. In curtailing the sexual agency of women, it exacts sexual fidelity from women as the norm. It perpetuates the notion that a woman is passive and incapable of exercising sexual freedom. In doing so, it offers her ‘protection’ from prosecution. Section 497 denudes a woman of her sexual autonomy in making its free exercise conditional on the consent of her spouse. In doing so, it perpetuates the notion that a woman consents to a limited autonomy on entering marriage. The provision is grounded in and has a deep social effect on how society perceives the sexual agency of women. In reinforcing the patriarchal structure which demands her controlled sexuality, Section 497 purports to serve as a provision envisaged for the protection of the sanctity of marriage. In the context of a constitutional vision characterized by the struggle to break through the shackles of gender stereotypes and guarantee an equal citizenship, Section 497 entrenches stereotypes and existing structures of discrimination and has no place in a constitutional order.

F.1 The entrapping cage

47 Section 497 exempts a woman from being punished as an abettor. Underlying this exemption is the notion that a woman is the victim of being seduced into a sexual relationship with a person who is not her husband. In assuming that the woman has no sexual agency, the exemption seeks to be justified on the ground of being a provision that is beneficial to women and protected under Article 15(3) of the Constitution. This is contrary to the remedy which Article 15(3) sought to embody. In Government of A P v P B Vijayakumar,115 a two judge Bench of this Court dealt with a challenge to sub- rule (2) of Rule 22-A of the Andhra Pradesh State and Subordinate Service Rules, which gave women a preference in the matter of direct recruitment. Speaking for the Court, Justice Sujata V Manohar held thus:

“7. The insertion of Clause (3) of Article 15 in relation to women is a recognition of the fact that for centuries, women of this country have been socially and economically handicapped. As a result, they are unable to participate in the socio-economic activities of the nation on a footing of equality. It is in order to eliminate this socio-economic backwardness of women and to empower them in a manner that would bring about effective equality between men and women that Article 15(3) is placed in Article 15. Its object is to strengthen and improve the status of women…”116

In Independent Thought v Union of India,117 Justice Madan B Lokur, speaking for a two judge Bench of this Court, adverted to the drafting history of Article 15(3) and held thus:

“55. The response given by Dr. Ambedkar suggests that he certainly favoured special provisions for women and children with a view to integrate them into society and to take them out of patriarchal control…118

56. What clearly emerges from this discussion is that Article 9(2) of the draft Constitution [now Article 15(3)] was intended to discriminate in favour of women and children – a form of affirmative action to their advantage.”119

48 Article 15(3) encapsulates the notion of ‘protective discrimination’. The constitutional guarantee in Article 15(3) cannot be employed in a manner that entrenches paternalistic notions of ‘protection’. This latter view of protection only serves to place women in a cage. Article 15(3) does not exist in isolation. Articles 14 to 18, being constituents of a single code on equality, supplement each other and incorporate a non-discrimination principle. Neither Article 15(1), nor Article 15(3) allow discrimination against women. Discrimination which is grounded in paternalistic and patriarchal notions cannot claim the protection of Article 15(3). In exempting women from criminal prosecution, Section 497 implies that a woman has no sexual agency and that she was ‘seduced’ into a sexual relationship. Given the presumed lack of sexual agency, criminal exemption is then granted to the woman in order to ‘protect’ her. The ‘protection’ afforded to women under Section 497 highlights the lack of sexual agency that the section imputes to a woman. Article 15(3) when read with the other Articles in Part III, serves as a powerful remedy to remedy the discrimination and prejudice faced by women for centuries. Article 15(3) as an enabling provision is intended to bring out substantive equality in the fullest sense. Dignity and autonomy are crucial to substantive equality. Hence, Article 15(3) does not protect a statutory provision that entrenches patriarchal notions in the garb of protecting women.

G Denuding identity – women as sexual property

49 Charles Jean Marie wrote in 1911120 about the central forms of adultery as an offence. The criminalisation of adultery came at a social cost: of disregarding the agency of a woman as a sentient being.

“In all legislations the married woman is more or less openly considered as the property of the husband and is very often confounded, absolutely confounded, with things possessed. To use her, therefore, without the authority of her owner is theft…But adultery is not a common theft. An object, an inert possession, are passive things; their owner may well punish the thief who has taken them, but him only. In adultery, the object of larceny, the wife, is a sentient and thinking being- that is to say, an accomplice in the attempt on her husband’s property in her own person; moreover he generally has her in his keeping…”

The law on adultery is but a codified rule of patriarchy. Patriarchy has permeated the lives of women for centuries. Ostensibly, society has two sets of standards of morality for judging sexual behaviour.121 One set for its female members and another for males.122 Society ascribes impossible virtues to a woman and confines her to a narrow sphere of behaviour by an expectation of conformity.123 Raising a woman to a pedestal is one part of the endeavour. The second part is all about confining her to a space. The boundaries of that space are defined by what a woman should or should not be. A society which perceives women as pure and an embodiment of virtue has no qualms of subjecting them to virulent attack: to rape, honour killings, sex-determination and infanticide. As an embodiment of virtue, society expects the women to be a mute spectator to and even accepting of egregious discrimination within the home. This is part of the process of raising women to a pedestal conditioned by male notions of what is right and what is wrong for a woman. The notion that women, who are equally entitled to the protections of the Constitution as their male counterparts, may be treated as objects capable of being possessed, is an exercise of subjugation and inflicting indignity. Anachronistic conceptions of ‘chastity’ and ‘honour’ have dictated the social and cultural lives of women, depriving them of the guarantees of dignity and privacy, contained in the Constitution.

50 The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that dignity is realised in the fullest sense. Familial structures cannot be regarded as private spaces where constitutional rights are violated. To grant immunity in situations when rights of individuals are in siege, is to obstruct the unfolding vision of the Constitution.

The opinion delivered on behalf of four judges in K S Puttaswamy v Union of India124 has recognised the dangers of the “use of privacy as a veneer for patriarchal domination and abuse of women.” On the delicate balance between the competing interests of protecting privacy as well dignity of women in the domestic sphere, the Court held:

“The challenge in this area is to enable the state to take the violation of the dignity of women in the domestic sphere seriously while at the same time protecting the privacy entitlements of women grounded in the identity of gender and liberty.”

51 In “Seeing like a Feminist”, Nivedita Menon has recognized the patriarchal family as the “basis for the secondary status of women in society.”125 Menon notes that ‘the personal is political’.126 Her scholarly work implores us to recognise spaces which may be considered personal such as the bedroom and kitchen. These spaces are immersed in power relations, but with ramifications for the public sphere.127

Control over women’s sexuality is the key patriarchal assumption that underlies family and marriage.128 When it shifts to the ‘public’ as opposed to the ‘private’, the misogyny becomes even more pronounced.129 Section 497 embodies this. By the operation of the provision, women’s sexuality is sought to be controlled in a number of ways. First, the husband and he alone is enabled to prosecute the man with whom his wife has sexual relations. Even in cases where the relationship is based on the consent of the woman, the law treats it as an offence, denying a woman who has voluntarily entered into a consensual relationship of her sexual agency. Second, such a relationship would be beyond the reach of penal law if her husband consents to it. The second condition is a telling reflection of the patriarchal assumption underlying the criminal provision: that the husband is the owner of the wife’s sexual agency.

52 In remedying injustices, the Court cannot shy away from delving into the ‘personal’, and as a consequence, the ‘public’. It becomes imperative for us to intervene when structures of injustice and persecution deeply entrenched in patriarchy are destructive of constitutional freedom. But, in adjudicating on the rights of women, the Court is not taking on a paternalistic role and “granting” rights. The Court is merely interpreting the text of the Constitution to re-state what is already set in ink- women are equal citizens of this nation, entitled to the protections of the Constitution. Any legislation which results in the denial of these Constitutional guarantees to women, cannot pass the test of constitutionality.

Patriarchy and paternalism are the underpinnings of Section 497. It needs no iteration that misogyny and patriarchal notions of sexual control find no place in a constitutional order which has recognised dignity as intrinsic to a person, autonomy being an essential component of this right. The operation of Section 497 denotes that ‘adulterous women’ virtually exercise no agency; or at least not enough agency to make them criminally liable.130 They are constructed as victims. As victims, they are to be protected by being exempt from sanctions of a criminal nature.131 Not only is there a denial of sexual agency, women are also not seen to be harmed by the offence.132 Thus, the provision is not simply about protecting the sanctity of the marital relationship. It is all about protecting a husband’s interest in his “exclusive access to his wife’s sexuality”.133

53 Section 497 chains the woman to antediluvian notions of sexuality. Chief Justice Dipak Misra in Navtej emphasised the importance of sexual autonomy as a facet of individual liberty, thus protected under Article 21 of the Constitution:

“The sexual autonomy of an individual to choose his/her sexual partner is an important pillar and an insegregable facet of individual liberty. When the liberty of even a single person of the society is smothered under some vague and archival stipulation that it is against the order of nature or under the perception that the majority population is peeved when such an individual exercises his/her liberty despite the fact that the exercise of such liberty is within the confines of his/her private space, then the signature of life melts and living becomes a bare subsistence and resultantly, the fundamental right of liberty of such an individual is abridged.”

In Navtej, one of us (Chandrachud J.) held that the recognition of the autonomy of an individual is an acknowledgement of the State’s respect for the capacity of the individual to make individual choices:

“The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State’s respect for the capacity of the individual to make independent choices. The right to privacy may be construed to signify that not only are certain acts no longer immoral, but that there also exists an affirmative moral right to do them.”

To characterise a woman as a passive object, denuded of agency, is a denial of autonomy. The same judgment in Navtej has recognized sexual choices as an essential attribute of autonomy, intimately connected to the self-respect of the individual:

“In order to understand how sexual choices are an essential attribute of autonomy, it is useful to refer to John Rawls’ theory on social contract. Rawls’ conception of the ‘Original Position’ serves as a constructive model to illustrate the notion of choice behind a “partial veil of ignorance.” Persons behind the veil are assumed to be rational and mutually disinterested individuals, unaware of their positions in society. The strategy employed by Rawls is to focus on a category of goods which an individual would desire irrespective of what individuals’ conception of ‘good’ might be. These neutrally desirable goods are described by Rawls as ‘primary social goods’ and may be listed as rights, liberties, powers, opportunities, income, wealth, and the constituents of self- respect. Rawls’s conception of self-respect, as a primary human good, is intimately connected to the idea of autonomy. Self-respect is founded on an individual’s ability to exercise her native capacities in a competent manner.”
(Emphasis supplied)

G.1 Exacting fidelity: the intimacies of marriage

54 Marriage as a social institution has undergone changes. Propelled by access to education and by economic and social progress, women have found greater freedom to assert their choices and preferences. The law must also reflect their status as equals in a marriage, entitled to the constitutional guarantees of privacy and dignity. The opinion delivered on behalf of four judges in Puttaswamy held thus:
“130…As society evolves, so must constitutional doctrine. The institutions which the Constitution has created must adapt flexibly to meet the challenges in a rapidly growing knowledge economy. Above all, constitutional interpretation is but a process in achieving justice, liberty and dignity to every citizen.”134

In Navtej, Justice Rohinton Nariman countered the assertion that the Court must “not indulge in taking upon itself the guardianship of changing societal mores” by holding thus:

“…The very purpose of the fundamental rights chapter in the Constitution of India is to withdraw the subject of liberty and dignity of the individual and place such subject beyond the reach of majoritarian governments so that constitutional morality can be applied by this Court to give effect to the rights, among others, of ‘discrete and insular’ minorities.One such minority has knocked on the doors of this Court as this Court is the custodian of the fundamental rights of citizens. These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the north star in the universe of constitutionalism in India. Constitutional morality always trumps any imposition of a particular view of social morality by shifting and different majoritarian regimes.” (Emphasis supplied)

55 Section 497 seeks the preservation of a construct of marriage in which female fidelity is enforced by the letter of the law and by the coercive authority of the state. Such a conception goes against the spirit of the rights-based jurisprudence of this Court, which seeks to protect the dignity of an individual and her “intimate personal choices”. It cannot be held that these rights cease to exist once the woman enters into a marriage.

56 The identity of the woman must be as an ‘individual in her own right’. In that sense, her identity does not get submerged as a result of her marriage. Section 497 lays down the norm that the identity of a married woman is but as the wife of her spouse. Underlying the norm is a notion of control over and subjugation of the woman. Such notions cannot withstand scrutiny under a liberal constitution. Chief Justice Dipak Misra in Navtej has drawn on the interrelationship between ‘identity’ and ‘autonomy’:

“…Autonomy is individualistic. Under the autonomy principle, the individual has sovereignty over his/her body. He/she can surrender his/her autonomy wilfully to another individual and their intimacy in privacy is a matter of their choice. Such concept of identity is not only sacred but is also in recognition of the quintessential facet of humanity in a person‘s nature. The autonomy establishes identity and the said identity, in the ultimate eventuate, becomes a part of dignity in an individual. This dignity is special to the man/woman who has a right to enjoy his/her life as per the constitutional norms and should not be allowed to wither and perish like a mushroom. It is a directional shift from conceptual macrocosm to cognizable microcosm. When such culture grows, there is an affirmative move towards a more inclusive and egalitarian society.”

This Court in Puttaswamy has elucidated that privacy is the entitlement of every individual, with no distinction to be made on the basis of the individual’s position in society.

“271.Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects. It is privacy as an intrinsic and core feature of life and personal liberty which enables an individual to stand up against a programme of forced sterilization. Then again, it is privacy which is a powerful guarantee if the State were to introduce compulsory drug trials of non-consenting men or women. The sanctity of marriage, the liberty of procreation, the choice of a family life and the dignity of being are matters which concern every individual irrespective of social strata or economic well being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.”135

57 It would be useful to refer to decisions of this Court which have emphasised on the freedoms of individuals with respect to choices in relationships. In Navtej, Chief Justice Misra highlighted the indignity suffered by an individual when “acts within their personal sphere” are criminalised on the basis of regressive social attitudes:

“An individual’s choice to engage in certain acts within their private sphere has been restricted by criminalising the same on account of the age old social perception. To harness such an essential decision, which defines the individualism of a person, by tainting it with criminality would violate the individual’s right to dignity by reducing it to mere letters without any spirit.”

The Chief Justice observed that the “organisation of intimate relations” between “consenting adults” is a matter of complete personal choice and characterised the “private protective sphere and realm of individual choice and autonomy” as a personal right:

“It is true that the principle of choice can never be absolute under a liberal Constitution and the law restricts one individual‘s choice to prevent harm or injury to others. However, the organisation of intimate relations is a matter of complete personal choice especially between consenting adults. It is a vital personal right falling within the private protective sphere and realm of individual choice and autonomy. Such progressive proclivity is rooted in the constitutional structure and is an inextricable part of human nature.”
(Emphasis supplied).

In Shakti Vahini, this Court has recognised the right to choose a partner as a fundamental right under Articles 19 and 21 of the Constitution. In Shafin Jahan, “intimate personal choices” were held to be a protected sphere, with one of us (Chandrachud J) stating:

“88.The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual.

Intimacies of marriage lie within a core zone of privacy, which is inviolable.”

58 In Navtej, one of us (Chandrachud J) held that the right to sexual privacy is a natural right, fundamental to liberty and a soulmate of dignity. The application of Section 497 is a blatant violation of these enunciated rights. Will a trial to prove adultery lead the wife to tender proof of her fidelity? In Navtej, the principle was elucidated thus:
“In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters.”

In so far as two individuals engage in acts based on consent, the law cannot intervene. Any intrusion in this private sphere would amount to deprivation of autonomy and sexual agency, which every individual is imbued with.

In Puttaswamy, it was recognised that a life of dignity entails that the “inner recesses of the human personality” be secured from “unwanted intrusion”:

“127.The right to privacy is an element of human dignity. The sanctity of privacy lies in its functional relationship with dignity. Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion. Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life. In doing so privacy recognises that living a life of dignity is essential for a human being to fulfil the liberties and freedoms which are the cornerstone of the Constitution.”136

59 In criminalizing adultery, the legislature has imposed its imprimatur on the control by a man over the sexuality of his spouse. In doing that, the statutory provision fails to meet the touchstone of Article 21. Section 497 deprives a woman of her autonomy, dignity and privacy. It compounds the encroachment on her right to life and personal liberty by adopting a notion of marriage which subverts true equality. Equality is subverted by lending the sanctions of the penal law to a gender biased approach to the relationship of a man and a woman. The statute confounds paternalism as an instrument for protecting marital stability. It defines the sanctity of marriage in terms of a hierarchical ordering which is skewed against the woman. The law gives unequal voices to partners in a relationship.

This judgment has dwelt on the importance of sexual autonomy as a value which is integral to life and personal liberty under Article 21. Individuals in a relationship, whether within or outside marriage, have a legitimate expectation that each will provide to the other the same element of companionship and respect for choices. Respect for sexual autonomy, it must be emphasized is founded on the equality between spouses and partners and the recognition by each of them of the dignity of the other. Control over sexuality attaches to the human element in each individual. Marriage – whether it be a sacrament or contract – does not result in ceding of the autonomy of one spouse to another.

60 Recognition of sexual autonomy as inhering in each individual and of the elements of privacy and dignity have a bearing on the role of the state in regulating the conditions and consequences of marital relationships. There is a fundamental reason which militates against criminalization of adultery. Its genesis lies in the fact that criminalizing an act is not a valid constitutional response to a sexual relationship outside the fold of marriage. Adultery in the course of a subsisting marital relationship may, and very often does question the commitment of the spouse to the relationship. In many cases, a sexual relationship of one of the spouses outside of the marriage may lead to the end of the marital relationship. But in other cases, such a relationship may not be the cause but the consequence of a pre-existing disruption of the marital tie. All too often, spouses who have drifted apart irrevocably may be compelled for reasons personal to them to continue with the veneer of a marriage which has ended for all intents and purposes. The interminably long delay of the law in the resolution of matrimonial conflicts is an aspect which cannot be ignored. The realities of human existence are too complex to place them in closed categories of right and wrong and to subject all that is considered wrong with the sanctions of penal law. Just as all conduct which is not criminal may not necessarily be ethically just, all conduct which is inappropriate does not justify being elevated to a criminal wrongdoing.

61 The state undoubtedly has a legitimate interest in regulating many aspects of marriage. That is the foundation on which the state does regulate rights, entitlements and duties, primarily bearing on its civil nature. Breach by one of the spouses of a legal norm may constitute a ground for dissolution or annulment. When the state enacts and enforces such legislation, it does so on the postulate that marriage as a social institution has a significant bearing on the social fabric. But in doing so, the state is equally governed by the norms of a liberal Constitution which emphasise dignity, equality and liberty as its cardinal values. The legitimate aims of the state may, it must be recognized, extend to imposing penal sanctions for certain acts within the framework of marriage. Physical and emotional abuse and domestic violence are illustrations of the need for legislative intervention. The Indian state has legitimately intervened in other situations such as by enacting anti dowry legislation or by creating offences dealing with the harassment of women for dowry within a marital relationship. The reason why this constitutes a legitimate recourse to the sovereign authority of the state to criminalize conduct is because the acts which the state proscribes are deleterious to human dignity. In criminalizing certain types of wrongdoing against women, the state intervenes to protect the fundamental rights of every woman to live with dignity. Consequently, it is important to underscore that this judgment does not question the authority and even the duty of the state to protect the fundamental rights of women from being trampled upon in unequal societal structures. Adultery as an offence does not fit that paradigm. In criminalizing certain acts, Section 497 has proceeded on a hypothesis which is deeply offensive to the dignity of women. It is grounded in paternalism, solicitous of patriarchal values and subjugates the woman to a position where the law disregards her sexuality. The sexuality of a woman is part of her inviolable core. Neither the state nor the institution of marriage can disparage it. By reducing the woman to the status of a victim and ignoring her needs, the provision penalizing adultery disregards something which is basic to human identity. Sexuality is a definitive expression of identity. Autonomy over one’s sexuality has been central to human urges down through the ages. It has a constitutional foundation as intrinsic to autonomy. It is in this view of the matter that we have concluded that Section 497 is violative of the fundamental rights to equality and liberty as indeed, the right to pursue a meaningful life within the fold of Articles 14 and 21.

62 The hallmark of a truly transformative Constitution is that it promotes and engenders societal change. To consider a free citizen as the property of another is an anathema to the ideal of dignity. Section 497 denies the individual identity of a married woman, based on age-old societal stereotypes which characterised women as the property of their spouse. It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as ‘public’ or ‘private’.

H Towards transformative justice

63 Constitutional values infuse the letter of the law with meaning. True to its transformative vision, the text of the Constitution has, time and again, been interpreted to challenge hegemonic structures of power and secure the values of dignity and equality for its citizens. One of the most significant of the battles for equal citizenship in the country has been fought by women. Feminists have overcome seemingly insurmountable barriers to ensure a more egalitarian existence for future generations. However, the quest for equality continues. While there has been a considerable degree of reform in the formal legal system, there is an aspect of women’s lives where their subordination has historically been considered beyond reproach or remedy. That aspect is the family. Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence.

64 The law on adultery, conceived in Victorian morality, considers a married woman the possession of her husband: a passive entity, bereft of agency to determine her course of life. The provision seeks to only redress perceived harm caused to the husband. This notion is grounded in stereotypes about permissible actions in a marriage and the passivity of women. Fidelity is only expected of the female spouse. This anachronistic conception of both, a woman who has entered into marriage as well as the institution of marriage itself, is antithetical to constitutional values of equality, dignity and autonomy.

In enforcing the fundamental right to equality, this Court has evolved a test of manifest arbitrariness to be employed as a check against state action or legislation which has elements of caprice, irrationality or lacks an adequate determining principle. The principle on which Section 497 rests is the preservation of the sexual exclusivity of a married woman – for the benefit of her husband, the owner of her sexuality. Significantly, the criminal provision exempts from sanction if the sexual act was with the consent and connivance of the husband. The patriarchal underpinnings of Section 497 render the provision manifestly arbitrary.

65 The constitutional guarantee of equality rings hollow when eviscerated of its substantive content. To construe Section 497 in a vacuum (as did Sowmithri Vishnu) or in formalistic terms (as did Revathi) is a refusal to recognise and address the subjugation that women have suffered as a consequence of the patriarchal order. Section 497 is a denial of substantive equality in that it re- inforces the notion that women are unequal participants in a marriage; incapable of freely consenting to a sexual act in a legal order which regards them as the sexual property of their spouse.

66 This Court has recognised sexual privacy as a natural right, protected under the Constitution. To shackle the sexual freedom of a woman and allow the criminalization of consensual relationships is a denial of this right. Section 497 denudes a married woman of her agency and identity, employing the force of law to preserve a patriarchal conception of marriage which is at odds with constitutional morality:

“Infidelity was born on the day that natural flows of sexual desire were bound into the legal and formal permanence of marriage; in the process of ensuring male control over progeny and property, women were chained within the fetters of fidelity.”137

Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality.

67 Criminal law must be in consonance with constitutional morality. The law on adultery enforces a construct of marriage where one partner is to cede her sexual autonomy to the other. Being antithetical to the constitutional guarantees of liberty, dignity and equality, Section 497 does not pass constitutional muster.

We hold and declare that:

1) Section 497 lacks an adequately determining principle to criminalize consensual sexual activity and is manifestly arbitrary. Section 497 is a denial of substantive equality as it perpetuates the subordinate status ascribed to women in marriage and society. Section 497 violates Article 14 of the Constitution;

2) Section 497 is based on gender stereotypes about the role of women and violates the non-discrimination principle embodied in Article 15 of the Constitution;

3) Section 497 is a denial of the constitutional guarantees of dignity, liberty, privacy and sexual autonomy which are intrinsic to Article 21 of the Constitution; and

4) Section 497 is unconstitutional.

The decisions in Sowmithri Vishnu and Revathi are overruled.

……………………………………..J
[Dr Dhananjaya Y Chandrachud]

New Delhi;
September 27, 2018.

FOOTNOTE

1 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications (1996) at page 40
2 Ibid at page 41
3 Ibid
4 Ibid
5 Patricia Williams, The Alchemy of Race and Rights, Cambridge: Harvard University Press (1991)
6 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications (1996) at page 41
7 Ibid
8 Gayatri Spivak, The Post Colonial Critic: Interviews, Strategies, Dialogies, Routledge (1990)
9 1954 SCR 930
10 AIR 1951 Bom 470
11 (2001) 4 SCC 139
12 Ibid. at page 164
13 1985 Supp SCC 137
14 Ibid. at page 141
15 Ibid. at page 142
16 Ibid. at page 144
17 (1988) 2 SCC 72
18 Ibid. at page 76
19 Nathaniel Hawthorne, The Scarlet Letter, Bantam Books (1850), at page 59
20 See David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008)
21 Ibid
22 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 10
23 Ibid, at page 11
24 Faramerz Dabhoiwala, The Origins of Sex: A History of the First Sexual Revolution (2012), at page 5
25 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30
26 Vern Bullough, Medieval Concepts of Adultery, at page 7
27 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 27
28 Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, Vol. 30, Journal of Family Law (1991), at page 46
29 Vern Bullough, Medieval Concepts of Adultery, at page 7
30 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 27
31 Jeremy D. Weinstein, Adultery, Law, and the State: A History, Vol. 38, Hastings Law Journal (1986), at page 202;
R. Huebner, A History of Germanic Private Law (F. Philbrick trans. 1918)
32 James A. Brundage, Law, Sex, and Christian Society in Medieval Europe, at page 6
33 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 30
34 Ibid.
35 The Oxford Encyclopaedia of Women in World History, (Bonnie G Smith ed.), Oxford, at page 30
36 James R. Mellow, Hawthorne’s Divided Genius, The Wilson Quarterly (1982)
37 Mary Beth Norton, Founding Mothers and Fathers: Gendered Power and the Forming of American Society (1996).
38 Keith Thomas, The Puritans and Adultery: The Act of 1650 Reconsidered, in Puritans and Revolutionaries: Essays in Seventeenth-Century History Presented to Christopher Hill (Donald Pennington, Keith Thomas, eds.), at page 281
39 Charles E. Torcia, Wharton’s Criminal Law, Section 218, (1994) at page 528
40 J. E. Loftis, Congreve’s Way of the World and Popular Criminal Literature, Studies in English Literature, 1500 – 1900 36(3) (1996), at page 293
41 Joanne Bailey, Unquiet Lives: Marriage and Marriage Breakdown in England, 1660–1800 (2009), at page 143
42 David Turner, Adultery in The Oxford Encyclopaedia of Women in World History (2008), at page 28
43 Blackstone’s Commentaries on the Laws of England, Book IV (1778), at page 191-192
44 (1707) Kel. 119
45 William Blackstone, Commentaries on the Laws of England. Vol. I (1765), at pages 442 445
46 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris Ashford, Alan Reed and Nicola Wake, eds.) (2016), at page 161
47 R v. Mawgridge, (1707) Kel. 119
48 Vera Bergelson, Rethinking Rape-By-Fraud in Legal Perspectives on State Power: Consent and Control (Chris Ashford, Alan Reed and Nicola Wake, eds.) (2016), at page 161
49 Blackstone’s Commentaries on the Laws of England, Book IV (1778), at pages 64-65
50 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, Socio-Legal Review (2016), at page 52
51 Ibid.
52 Macaulay’s Draft Penal Code (1837), Note Q
53 Second Report on the Indian Penal Code (1847), at pages 134-35, cited from, Law Commission of India, Forty- second Report: Indian Penal Code, at page 365
54 A Penal Code prepared by The Indian Law Commissioners (1838), The Second Report on the Indian Penal Code, at page 74
55 Law Commission of India, 42nd Report: Indian Penal Code (1971), at page 326
56 Law Commission of India, 156th Report: Indian Penal Code (1997) at page 172
57 Report of the Committee on Reforms of Criminal Justice System (2003), at page 190
58 Ibid.
59 Abhinav Sekhri, The Good, The Bad, And The Adulterous: Criminal Law And Adultery In India, Socio-Legal Review (2016), at page 63
60 Brenda Cossman and Ratna Kapur, Subversive Sites: Feminist Engagements with Law in India (1996)
61 Yusuf Abdul Aziz v. State of Bombay, 1954 SCR 930
62 The ‘Woman Question’ was one of the great issues that occupied the middle of the nineteenth century, namely the social purpose of women. It is used as a tool to enquire into the status of women in the law and how they interact with and are affected by it; See Katherine T. Bartlett, Feminist Legal Methods, Harvard Law Review (1990)
63 U N Working Group on Women’s Human Rights: Report (18 October, 2012), available at: http://newsarchive.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12672&LangID=E
64Case No: 2009Hun-Ba17, (Adultery Case), South Korea Constitutional Court (February 26, 2015), available at http://english.ccourt.go.kr/cckhome/eng/decisions/majordecisions/majorDetail.do
65 Firstpost, South Korean court abolishes law that made adultery illegal, (February 26, 2015), available at https://www.firstpost.com/world/south-korean-court-abolishes-law-saying-adultery-is-illegal-2122935.html
66 Opinion of Justice Park Han-Chul, Justice Lee Jin-Sung, Justice Kim Chang-Jong, Justice Seo Ki-Seog and Justice Cho Yong-Ho (Adultery is Unconstitutional)
67 Article 10 of the South Korean Constitution “All citizens are assured of human worth and dignity and have the right
to pursue happiness. It is the duty of the State to confirm and guarantee the fundamental and inviolable human
rights of individuals.”
68 Supra, note 64, Part V- A (3)(1) (‘Change in Public’s Legal Awareness’ under the head of ‘Appropriateness of
Means and Least Restrictiveness’)
69 Supra, note 64, Part V- A (3)(3) (‘Effectiveness of Criminal Punishment’, under the head of ‘Appropriateness of
Means and Least Restrictiveness’)
70 Ibid.
71 Supra, note 64, Part V- A (5) (‘Balance of Interests & Conclusion’)
72 Constitutional Petitions Nos. 13 /05 /& 05 /06 in Law Advocacy for Women in Uganda v. Attorney General of Uganda, (2007) UGCC 1 (5 April, 2007), available at
https://ulii.org/ug/judgment/constitutional-court/2007/1
73 Reuters: ‘Uganda scraps “sexist” adultery law’, (April 5, 2007), available at
https://www.reuters.com/article/us-uganda-adultery/uganda-scraps-sexist-adultery-law-idUSL0510814320070405
74 Constitutional Petitions Nos. 13 /05 /& 05 /06 in Law Advocacy for Women in Uganda v. Attorney General of Uganda, [2007] UGCC 1 (5 April, 2007), available at
https://ulii.org/ug/judgment/constitutional-court/2007/1
75 Ibid.
76 DE v RH, [2015] ZACC 18
77 Ibid, at para 34
78 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 45
79 Ibid, at page 46
80 Cleveland Board of Education v. LaFleur, 414 U.S. 623 (1973)
81 Griswold, 381 U.S. 1 (1967)
82 Carey, v. Population Serv. Int’l, 431 U.S. 678
83 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 70
84 Hardwick, 478 U.S.205
85 Ibid, at page 206
86 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 74
87 Ibid, at page 77
88 Ibid, at, page 78
89 Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984)
90 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 78
91 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 82
92 Thornburgh v. American College of Obstetricians and Gynaecologists, 476 U.S. 747 (1986)
93 Ibid, at Page 777
94 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) at page 85
95 Ibid, at Page 86
96 Eisenstadt v. Baird , 405 U.S. 438, 457 (1972)
97 Martin J. Siegel, For Better or For Worse: Adultery, Crime & the Constitution, Journal of Family Law, Vol.30, (1991) 89
98 Deborah Rhode, Adultery: Infidelity and the Law, (Harvard University Press, 2016)
99 Iris Marion Young, Justice and the Politics of Difference, Princeton University Press, 1990
100 (1974) 4 SCC 3
101 Ibid. at page 38
102 (2017) 9 SCC 1
103 Ibid. at pages 91-92
104 Ibid. at page 99
105 Writ Petition (Criminal) No. 76 OF 2016
106 Kathy Lahey, Feminist Theories of (In)equality, in Equality and Judicial Nuetrality (S.Martin and K.Mahoney (eds.) (1987)
107 Ratna Kapur On Woman, Equality and the Constitution: Through the Looking Glass of Feminism in Gender and Politics in India (Nivedita Menon ed.) (1993)
108 Maureen Maloney, An Analysis of Direct Taxes in India: A Feminist Perspective, Journal of the Indian Law Institute (1988)
109 Catherine A Mackinnon, Sex equality under the Constitution of India: Problems, prospects, and ‘personal laws’, Oxford University Press and New York University School of Law (2006)
110 Phyllis Coleman, Who’s Been Sleeping in My Bed? You and Me, and the State Makes Three, Vol. 24, Indian Law Review (1991)
111 Women’s Work, Men’s Property: The Origins of Gender and Class (S Coontz and P Henderson eds.) (1986)
112 Rosemary Coombe, Is There a Cultural Studies of Law?, in A Companion to Cultural Studies, Toby Miller (ed.), Oxford, (2001)
113 Austin Sarat, Jonathan Simon, Beyond Legal Realism?: Cultural Analysis, Cultural Studies, and the Situation of Legal Scholarship, Yale Journal of Law & the Humanities, (2001), at page 19
114 (2008) 3 SCC 1
115 (1995) 4 SCC 520
116 Ibid. at page 525
117 (2017) 10 SCC 800
118 Ibid. at page 837
119 Ibid. at page 837
120 Charles Jean Marie Letorneau, The Evolution of Marriage (2011)
121 Nandita Haksar, Dominance, Suppression and the Law in Women and the Law: Contemporary Problems (Lotika Sarkar and B. Sivaramayya eds.), Vikas Publishing House (1994)
122 Ibid
123 Ibid
124 (2017) 10 SCC 1
125 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 35
126 Ibid.
127 Ibid.
128 Ibid.
129 Ibid.
130 Ratna Kapur and Brenda Cossman, Subversive Sites: Feminist Engagements with Law in India, Sage Publications (1996) at page 119
131 Ibid.
132 Ibid.
133 Ibid. at page 120
135 Ibid. at page 484
136 Ibid. at page 413
137 Nivedita Menon, Seeing like a Feminist, Zubaan Books (2012) at page 135; quoting Archana Verma, Stree Vimarsh Ke Mahotsav (2010)

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 194 OF 2017

Joseph Shine …Petitioner

Versus

Union of India …Respondent

J U D G M E N T

INDU MALHOTRA, J.

1. The present Writ Petition has been filed to challenge the constitutional validity of Section 497 of the Indian Penal Code (hereinafter referred to as I.P.C.) which makes ‘adultery’ a criminal offence, and prescribes a punishment of imprisonment upto five years and fine. Section 497 reads as under:

“497. Adultery — Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

2. The Petitioner has also challenged Section 198(2) of the Code of Criminal Procedure, 1973, (hereinafter referred to as “Cr.P.C”). Section 198(2) reads as under:

“For the purpose of sub-section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the said Code.

Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.”

3. The word ‘adultery’1 derives its origin from the French word ‘avoutre‘, which has evolved from the Latin verb ‘adulterium‘ which means “to corrupt.” The concept of a wife corrupting the marital bond with her husband by having a relationship outside the marriage, was termed as ‘adultery’. This definition of adultery emanated from the historical context of Victorian morality, where a woman considered to be the ‘property’ of her husband; and the offence was committed only by the adulterous man. The adulterous woman could not be proceeded against as an ‘abettor’, even though the relationship was consensual.

4. THE DOCTRINE OF COVERTURE

Adultery, as an offence, was not a crime under Common Law, in England. It was punishable by the ecclesiastical courts which exercised jurisdiction over sacramental matters that included marriage, separation, legitimacy, succession to personal property, etc.2

In England, coverture determined the rights of married women, under Common Law. A ‘feme sole‘ transformed into a ‘feme covert‘ after marriage. ‘Feme covert‘ was based on the doctrine of ‘Unity of Persons’ – i.e. the husband and wife were a single legal identity. This was based on notions of biblical morality that a husband and wife were ‘one in flesh and blood’. The effect of ‘coverture’ was that a married woman’s legal rights were subsumed by that of her husband. A married woman could not own property, execute legal documents, enter into a contract, or obtain an education against her husband’s wishes, or retain a salary for herself.3

The principle of ‘coverture’ was described in William Blackstone’s Commentaries on the Laws of England as follows:4

” By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs everything; and is therefore called in our law-French a feme-covert; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture. Upon this principle, of a union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquires by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant anything to his wife, or enter into covenant with her: for the grant would be to suppose her separate existence; and to covenant with her, would be only to covenant with himself: and therefore it is also generally true, that all contracts made between husband and wife, when single, are voided by the intermarriage.”
(Emphasis supplied)

On this basis, a wife did not have an individual legal liability for her misdeeds, since it was legally assumed that she was acting under the orders of her husband, and generally a husband and wife were not allowed to testify either for, or against each other.

Medieval legal treatises, such as the Bracton5, described the nature of ‘coverture’ and its impact on married women’s legal actions. Bracton (supra) states that husbands wielded power over their wives, being their ‘rulers’ and ‘custodians of their property’. The institution of marriage came under the jurisdiction of ecclesiastical courts. It made wives live in the shadow of their
husbands, virtually ‘invisible’ to the law.

The principle of coverture subsisted throughout the marriage of the couple. It was not possible to obtain a divorce through civil courts, which refused to invade into the jurisdiction of the church. Adultery was the only ground available to obtain divorce.

The origin of adultery under Common Law was discussed in the English case Pritchard v. Pritchard and Sims6, wherein it was held that:

“In 1857, when marriage in England was still a union for life which could be broken only by private Act of Parliament, under the common law, three distinct causes of action available to a husband whose rights in his wife were violated by a third party, who enticed her away, or who harboured her or who committed adultery with her…In the action for adultery, known as criminal conversation, which dates from before the time of BRACTON, and consequently lay originally in trespass, the act of adultery itself was the cause of action and the damages punitive at large. It lay whether the adultery resulted in the husband‘s losing his wife‘s society and services or not. All three causes of action were based on the recognition accorded by the common law to the husband‘s propriety which would have been hers had she been feme sole.”
(Emphasis supplied)

In the Victorian Era7, women were denied the exercise of basic rights and liberties, and had little autonomy over their choices. Their status was pari materia with that of land, cattle and crop; forming a part of the ‘estate’ of their fathers as daughters prior to marriage, and as the ‘estate’ of their husband post-marriage.8

Lord Wilson in his Speech titled “Out of his shadow: The long struggle of wives under English Law”9 speaks of the plight of women during this era:

“8. An allied consequence of the wife‘s coverture was that she was not legally able to enter into a contract. Apart from anything else, she had no property against which to enforce any order against her for payment under a contract; so it was only a small step for the law to conclude that she did not have the ability to enter into the contract in the first place. If, however, the wife went into a shop and ordered goods, say of food or clothing, which the law regarded as necessary for the household, the law presumed, unless the husband proved to the contrary, that she had entered into the contract as his authorised agent. So the shopkeeper could sue him for the price if the wife had obtained the goods on credit.

9. In the seventeenth century there was a development in the law relating to this so-called agency of necessity. It was an attempt to serve the needs of wives whose husbands had deserted them. The law began to say that, if a deserted wife had not committed adultery, she could buy from the shopkeeper all such goods as were necessary for her and, even if (as was highly likely) the husband had not authorised her to buy them, he was liable to pay the shopkeeper for them. But the shopkeeper had a problem. How was he to know whether the wife at the counter had been deserted and had not committed adultery? Sometimes a husband even placed a notice in the local newspaper to the effect, true or untrue, that his wife had deserted him or had committed adultery and that accordingly he would not be liable to pay for her purchase of necessaries.….”

The remnants of ‘coverture’ sowed the seeds for the introduction of ‘Criminal Conversation’ as an actionable tort by a husband against his wife’s paramour in England.

Criminal Conversation as a tort, gave a married man the right to claim damages against the man who had entered into a sexual relationship with his wife. The consent of the wife to the relationship, did not affect the entitlement of her husband to sue.

The legal position of matrimonial wrongs underwent a significant change with the passing of the Matrimonial Causes Act, 1857 in England.10 Section 59 of this Act abolished the Common Law action for “criminal conversation”.11 Section 33 empowered the Courts to award damages to the husband of the paramour for adultery.12 The claim for damages for adultery was to be tried on the same principles, and in the same manner, as actions for ‘criminal conversation’ which were formerly tried at Common Law.13

The status of the wife, however, even after the passing of the Matrimonial Causes Act, 1857 remained as ‘property of the husband’, since women had no right to sue either their adulterous husband or his paramour.

Gender equality between the spouses came to be recognised in some measure in England, with the passing of the Matrimonial Causes Act, 1923 which made ‘adultery’ a ground for divorce, available to both spouses, instead of only the husband of the adultrous wife. The right of the husband to claim damages from his wife’s paramour came to be abolished by The Law Reform (Miscellaneous Provisions) Act of 1970 on January 1, 1971. In England, adultery has always been a civil wrong, and not a penal offence.

5. SECTION 497 – HISTORICAL BACKGROUND

5.1. The Indo-Brahmanic traditions prevalent in India mandated the chastity of a woman to be regarded as her prime virtue, to be closely guarded to ensure the purity of the male bloodline. The objective was not only to protect the bodily integrity of the woman, but to ensure that the husband retains control over her sexuality, confirming her ‘purity’ in order to ensure the purity of his own bloodline.14

5.2. The first draft of the I.P.C. released by the Law Commission of India in 1837 did not include “adultery” as an offence. Lord Macaulay was of the view that adultery or marital infidelity was a private wrong between the parties, and not a criminal offence.15
The views of Lord Macaulay were, however, overruled by the other members of the Law Commission, who were of the opinion that the existing remedy for ‘adultery’ under Common Law would be insufficient for the ‘poor natives’, who would have no recourse against the paramour of their wife.16

5.3. The debate that took place in order to determine whether ‘adultery’ should be a criminal offence in India was recorded in ‘Note Q’ of ‘A Penal Code prepared by the Indian Law Commissioners‘ 17. The existing laws18 for the punishment of adultery were considered to be altogether inefficacious for preventing the injured husband from taking matters into his own hands.
The Law Commissioners considered that by not treating ‘adultery’ as a criminal offence, it may give sanction to immorality. The Report19 states:

” Some who admit that the penal law now existing on this subject is in practice of little or no use, yet think that the Code ought to contain a provision against adultery. They think that such a provision, though inefficacious for the repressing of vice, would be creditable to the Indian Government, and that by omitting such a provision we should give a sanction to immorality. They say, and we believe with truth, that the higher class of natives consider the existing penal law on the subject as far too lenient, and are unable to understand on what principle adultery is treated with more tenderness than forgery or perjury.

…That some classes of the natives of India disapprove of the lenity with which adultery is now punished we fully believe, but this in our opinion is a strong argument against punishing adultery at all. There are only two courses which in our opinion can properly be followed with respect to this and other great immoralities. They ought to be punished very severely, or they ought not to be punished at all. The circumstance that they are left altogether unpunished does not prove that the Legislature does not regard them with disapprobation. But when they are made punishable the degree of severity of the punishment will always be considered as indicating the degree of disapprobation with which the Legislature regards them. We have no doubt that the natives would be far less shocked by the total silence of the penal law touching adultery than by seeing an adulterer sent to prison for a few months while a coiner is imprisoned for fourteen years.”

(Emphasis supplied)

The Law Commissioners in their Report (supra) further stated:

“…..The population seems to be divided into two classes – those whom neither the existing punishment nor any punishment which we should feel ourselves justified in proposing will satisfy, and those who consider the injury produced by adultery as one for which a pecuniary compensation will sufficiently atone. Those whose feelings of honour are painfully affected by the infidelity of their wives will not apply to the tribunals at all. Those whose feelings are less delicate will be satisfied by a payment of money. Under such circumstances we think it best to treat adultery merely as a civil injury.

…No body proposes that adultery should be punished with a severity at all proportioned to the misery which it produces in cases where there is strong affection and a quick sensibility to family honour. We apprehend that among the higher classes in this country nothing short of death would be considered as an expiation for such a wrong. In such a state of society we think it far better that the law should inflict no punishment than that it should inflict a punishment which would be regarded as absurdly and immorally lenient.”
(Emphasis supplied)

The Law Commissioners considered the plight of women in this country, which was much worse than that of women in France and England. ‘Note Q’ (surpa) records this as the reason for not punishing women for the offence of adultery.

The relevant extract of ‘Note Q’ is reproduced herein below:

” There is yet another consideration which we cannot wholly leave out of sight. Though we well know that the dearest interests of the human race are closely connected with the chastity of women, and the sacredness of the nuptial contract, we cannot but feel that there are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives. The condition of the women of this country is unhappily very different from that of the women of England and France. They are married while still children. They are often neglected for other wives while still young. They share the attention (sic) of a husband with several rivals. To make laws for punishing the inconstancy of the wife while the law admits the privilege of the husband to fill his zenana with women, is a course which we are most reluctant to adopt. We are not so visionary as to think of attacking by law an evil so deeply rooted in the manners of the people of this country as polygamy. We leave it to the slow, but we trust the certain operation of education and of time. But while it exists, while it continues to produce its never failing effects on the happiness and respectability of women, we are not inclined to throw into a scale already too much depressed the additional weight of the penal law. We have given the reasons which lead us to believe that any enactment on this subject would be nugatory. And we are inclined to think that if not nugatory it would be oppressive. It would strengthen hands already too strong. It would weaken a class already too weak. It will be time enough to guard the matrimonial contract by penal sanctions when that contract becomes just, reasonable, and mutually beneficial.”
(Emphasis supplied)

Colonel Sleeman opposed the reasoning of the Law Commissioners on this subject. The ‘backwardness of the natives’ to take recourse to the courts for redress in cases of adultery, arose from ‘the utter hopelessness on their part of getting a conviction.’ He was of the view that if adultery is not made a crime, the adulterous wives will alone bear the brunt of the rage of their husbands. They might be tortured or even poisoned. In his view, offences such as adultery

were inexcusable and must be punished. Colonel Sleeman observed:

“ The silence of the Penal Code will give still greater impunity to the seducers, while their victims will, in three cases out of four, be murdered, or driven to commit suicide. Where husbands are in the habit of poisoning their guilty wives from the want of legal means of redress, they will sometimes poison those who are suspected upon insufficient grounds, and the innocent will suffer.

…Sometimes the poorest persons will refuse pecuniary compensations; but generally they will be glad to get what the heads of their caste or circle of society may consider sufficient to defray the expenses of a second marriage. They dare not live in adultery, they would be outcasts if they did; they must be married according to the forms of their caste, and it is reasonable that the seducer of the wife should be made to defray these expenses for the injured husband. The rich will, of course, always refuse pecuniary compensation, and for the same reason that they would never prosecute the seducer in a civil court. The poor could never afford so to prosecute in such a court; and, as I have said, the silence of the Penal Code would be a solemn pledge of impunity to the guilty seducer, under the efficient government like ours, that can prevent the husband and father from revenging themselves except upon the females.” 20
(Emphasis supplied)

This debate along with the recommendation of the Law Commissioners was considered by the Indian Law Commissioners while drafting the Indian Penal Code.

5.4. The relevant extract from the discussion on whether to criminalize adultery was as follows:

“We have observed that adultery is recognised as an offence by the existing laws of all the Presidencies, and that an Act has been lately passed by the Governor-General of India in Council for regulating the punishment of the offence in the Bombay territories. Adultery is punishable by the Code Penal of France. It is provided for in the Code of Louisiana. The following are Mr. Livingston‘s observations on the subject. “Whether adultery should be considered as an offence against public morality, or left to the operation of the civil laws, has been the subject of much discussion. As far as I am informed, it figures in the penal law of all nations except the English; and some of their most celebrated lawyers have considered the omission as a defect.

Neither the immorality of the act, nor its injurious consequences on the happiness of females, and very frequently on the peace of society and the lives of its members, can be denied. The reason then why it should go unpunished does not seem very clear. It is emphatically one of that nature to which I have just referred, in which the resentment of the injured party will prompt him to take vengeance into his own hands, and commit a greater offence, if the laws of his country refuse to punish the lesser. It is the nature of man, and no legislation can alter it, to protect himself where the laws refuse their aid; very frequently where they do not; but where they will not give protection against injury, it is in vain that they attempt to punish him who supplies by his own energy their remissness. Where the law refuses to punish this offence, the injured party will do it for himself, he will break the public peace, and commit the greatest of all crimes, and he is rarely or never punished. Assaults, duels, assassinations, poisonings, will be the consequence. They cannot be prevented; but, perhaps, by giving the aid of the law to punish the offence which they are intended to avenge, they will be less frequent; and it will, by taking away the pretext for the atrocious acts, in a great measure insure the infliction of the punishment they deserve. It is for these reasons that the offence of adultery forms a chapter of this title.”

Having given mature consideration to the subject, we have, after some hesitation, come to the conclusion that it is not advisable to exclude this offence from the Code. We think the reasons for continuing to treat it as a subject for the cognizance of the criminal courts preponderate.….

…While we think that the offence of adultery ought not to be omitted from the Code, we would limit its cognizance to adultery committed with a married woman, and considering that there is much weight in the last remark in Note Q, regarding the condition of the women of this country, in deference to it we would render the male offender alone liable to punishment. We would, however, put the parties accused of adultery on trial together, and empower the Court, in the event of their conviction, to pronounce a decree of divorce against the guilty woman, if the husband sues for it, at the same time that her paramour is sentenced to punishment by imprisonment or fine. By Mr. Livingstone‘s Code, the woman forfeits her ‘matrimonial gains‘, but is not liable to other punishment.

We would adopt Colonel Sleeman‘s suggestion as to the punishment of the male offender, limiting it to imprisonment not exceeding five years, instead of seven years allowed at present, and sanctioning the imposition of a fine payable to the husband as an alternative, or in addition.”21

(Emphasis supplied)

5.5. It was in this backdrop that Section 497 came to be included in the I.P.C.

6. THE QUEST FOR REFORM

6.1. In June 1971, the 42nd Report of the Law Commission of India22 analysed various provisions of the I.P.C. and made several important recommendations. With respect to the offence of ‘adultery’, the Law Commission recommended that the adulterous woman must be made equally liable for prosecution, and the punishment be reduced from 5 years to 2 years. This was however, not given effect to.
6.2. In August 1997, the Law Commission of India in its 156th Report23 noted that the offence of adultery under Section 497 is very limited in scope in comparison to the misconduct of adultery in divorce (civil proceedings). The section confers only upon the husband the right to prosecute the adulterous male, but does not confer any right on the aggrieved wife to prosecute her adultererous husband. It was recommended to introduce an amendment to incorporate the concept of equality between sexes in marriage vis-à-vis the offence of adultery. The proposed change was to reflect the transformation of women’s status in Indian society.
However, the recommendation was not accepted.

6.3. In March 2003, the Malimath Committee on Reforms of Criminal Justice System24, was constituted by the Government of India, which considered comprehensive measures for revamping the Criminal Justice System. The Malimath Committee made the following recommendation with respect to “Adultery”:

“16.3.1 A man commits the offence of adultery if he has sexual intercourse with the wife of another man without the consent or connivance of the husband. The object of this Section is to preserve the sanctity of the marriage. The society abhors marital infidelity. Therefore, there is no good reason for not meting out similar treatment to wife who has sexual intercourse with a married man.

16.3.2 The Committee therefore suggests that Section 497 of the I.P.C. should be suitably amended to the effect that “whosoever has sexual intercourse with the spouse of any other person is guilty of adultery……”
(Emphasis supplied)

The recommendations of the Malimath Committee on the amendment of Section 497 were referred to the Law Commission of India, which took up the matter for study and examination. The same is pending consideration.

7. CONTEMPORARY INTERNATIONAL JURISPRUDENCE

Before addressing the issue of the constitutional validity of Section 497 I.P.C., it would be of interest to review how ‘adultery’ is treated in various jurisdictions around the world.

Adultery has been defined differently across various jurisdictions. For instance, adultery charges may require the adulterous relationship to be “open and notorious,”25 or be more than a single act of infidelity, or require cohabitation between the adulterer and the adulteress. Such a definition would require a finding on the degree of infidelity.26 In other instances, the spouses may also be punishable for adultery. Such a provision raises a doubt as to how that may secure the relationship between the spouses and the institution of marriage. Another variation, in some jurisdictions is that cognizance of the offence of adultery is taken only at the instance of the State, and its enforcement is generally a rarity.

7.1. Various legal systems have found adulterous conduct sufficiently injurious to justify some form of criminal sanction. Such conduct is one, which the society is not only unwilling to approve, but also attaches a criminal label to it.

• United States of America

In the United States of America, 17 out of 50 States continue to treat ‘adultery’ as a criminal offence under the State law.27 The characterization of the offence differs from State to State.

In the case of Oliverson v. West Valley City28, the constitutionality of the Utah adultery statute29 was challenged. It was contended that the statute offends the right to privacy and violates substantive due process of law under the U.S. Constitution. The U.S. Court held that adultery is a transgression against the relationship of marriage which the law endeavors to protect. The State of Utah had an interest in preventing adultery. Whether to use criminal sanction was considered a matter particularly within the ambit of the legislature. Given the special interest of the State, it was considered
rational to classify adultery as a crime.

A similar provision exists in the State of New York, wherein adultery is treated as a Class B misdemeanor.30

By way of contrast, in the State of North Carolina, it was held in the Judgment of Hobbs v. Smith31, that adultery should not be treated as a criminal offence. The Superior Court of North Carolina, relied on the judgment of the U.S. Supreme Court, in Lawrence v. Texas32 wherein it was recognized that the right to liberty provides substantial protection to consenting adults with respect to decisions regarding their private sexual conduct. The decision of an individual to commit adultery is a personal decision, which is sufficiently similar to other personal choices regarding marriage, family, procreation, contraception, and sexuality, which fall within the area of privacy. Following this reasoning in Lawrence, the Superior Court of the State of North Carolina held that the State Law criminalizing adultery violated the substantive due process, and the right to liberty under the Fourteenth Amendment to the U.S. Constitution, and the provision criminalizing adultery was declared unconstitutional.

• Canada

In Canada, the Criminal Code of Canada under Section 172 imposes criminal sanctions for adulterous conduct. This provision was introduced in 191833, and continues to remain on the Criminal Code.

The Criminal Code of Canada prohibits endangering the morals of children in a home where one “participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice.”

Furthermore, Canada has a provision for granting divorce in cases of “breakdown of marriages”, and adultery is a ground for establishing the same.34

• Malaysia

In Malaysia, adultery is punishable as a crime under the Islamic Laws. However, the Law Reform (Marriage and Divorce) Act, 1976 made it a civil wrong, for all non-Muslims. Similar to the position in Canada, this Act makes adultery a ground for granting divorce, as it is a proof of “Breakdown of Marriage”.35 Interestingly though, the Act also allows either spouse, to be an aggrieved party and claim damages from the adulterer or adulteress.36

• Japan

In Japan, the provision for adultery was somewhat similar to the present Section 497 of I.P.C.; it punished the woman and the adulterer only on the basis of the complaint filed by the husband. In case the act of adultery was committed with the consent of the husband, there would be no valid demand for prosecution of the offence37. This provision has since been deleted.38 Adultery is now only a ground for divorce in Japan under the Civil Code.39

• South Africa

In South Africa, in the case of DE v. RH40 The Constitutional Court of South Africa struck down adultery as a ground for seeking compensation by the aggrieved persons. The Court relied on an earlier judgment of Green v. Fitzgerald41 wherein it was held that the offence of adultery has fallen in disuse, and “has ceased to be regarded as a crime”.42 The Court noted that even though adultery was of frequent occurrence in South Africa, and the reports of divorce cases were daily published in the newspapers in South Africa, the authorities took no notice of the offence.

• Turkey

In Turkey, the decision of the Constitutional Court of Turkey from 199643 is another instance where the Court struck down the provision of adultery as a criminal offence from the Turkish Penal Code of 1926. The Court noted that the provision was violative of the Right to Equality, as guaranteed by the Turkish Constitution since it treated men and women differently for the same act.

• South Korea

In South Korea, adultery as a criminal offence was struck down by the Constitutional Court of Korea in, what is popularly known as, the Adultery Case of February 26, 201544. The Constitutional Court of Korea held that Article 241, which provided for the offence of adultery, was unconstitutional as it violated Article 10 of the Constitution, which promotes the right to personality, the right to pursue happiness, and the right to self-determination. The right to self- determination connotes the right to sexual self- determination that is the freedom to choose sexual activities and partners. Article 241 was considered to restrict the right to privacy protected under Article 17 of the Constitution since it restricts activities arising out of sexual life belonging to the intimate private domain. Even though the provision had a legitimate object to preserve marital fidelity between spouses, and monogamy, the court struck it down as the provision failed to achieve the “appropriateness of means and least restrictiveness” The Court held as follows:

“In recent years, the growing perception of the Korean society has changed in the area of marriage and sex with the changes of the traditional family system and family members‘ role and position, along with rapid spread of individualism and liberal views on sexual life. Sexual life and love is a private matter, which should not be subject to the control of criminal punishment. Despite it is unethical to violate the marital fidelity, it should not be punished by criminal law….

…..

…The exercise of criminal punishment should be the last resort for the clear danger against substantial legal interests and should be limited at least. It belongs to a free domain of individuals for an adult to have voluntary sexual relationships, but it may be regulated by law when it is expressed and it is against the good sexual culture and practice. It would infringe on the right to sexual self-determination and to privacy for a State to intervene and punish sexual life which should be subject to sexual morality and social orders.

The tendency of modern criminal law directs that the State should not exercise its authority in case an act, in essence, belongs to personal privacy and is not socially harmful or in evident violation of legal interests, despite the act is in contradiction to morality. According to this tendency, it is a global trend to abolish adultery crimes.
(Emphasis supplied)

The Court concluded that it was difficult to see how criminalization of adultery could any longer serve the public interest of protecting the monogamy-based marriage system, maintain good sexual culture, and the marital fidelity between spouses. A consideration of Article 241 which punishes adultery failed to achieve the appropriateness of means and least restrictiveness. Since the provision excessively restricted a person’s sexual autonomy and privacy by criminally punishing the private and

intimate domain of sexual life, the said penal provision was said to have lost the balance of State interest and individual autonomy.

8. PREVIOUS CHALLENGES TO ADULTERY IN INDIA

This court has previously considered challenges to Section 497 inter alia on the ground that the impugned Section was violative of Articles 14 and 15 of the Constitution.

8.1. In Yusuf Abdul Aziz v. State of Bombay45, Section 497 was challenged before this Court inter alia on the ground that it contravened Articles 14 and 15 of the Constitution, since the wife who is pari delicto with the adulterous man, is not punishable even as an “abettor.” A Constitution Bench of this Court took the view that since Section 497 was a special provision for the benefit of women, it was saved by Article 15(3) which is an enabling provision providing for protective discrimination.

In Yusuf Aziz (supra), the Court noted that both Articles 14 and 15 read together validated Section 497.

8.2. Later, in Sowmithri Vishnu v. Union of India & Anr.46, a three-judge bench of this Court addressed a challenge to Section 497 as being unreasonable and arbitrary in the classification made between men and women, unjustifiably denied women the right to prosecute her husband under Section 497.

It was contended that Section 497 conferred a right only upon the husband of the adulterous woman to prosecute the adulterer; however, no such right was bestowed upon the wife of an adulterous man. The petitioners therein submitted that Section 497 was a flagrant violation of gender discrimination against women. The Court opined that the challenge had no legal basis to rest upon. The Court observed that the argument really centred on the definition, which was required to be re-cast to punish both the male and female offender for the offence of adultery.

After referring to the recommendations contained in the 42nd Report of the Law Commission of India, the Court noted that there were two opinions on the desirability of retaining Section 497. However it concluded by stating that Section 497 could not be struck down on the ground that it would be desirable to delete it from the statute books.

The Court repelled the plea on the ground that it is commonly accepted that it is the man who is the ‘seducer’, and not the woman. The Court recognized that this position may have undergone some change over the years, but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ‘transformation’ which the society has undergone.

8.3. In V. Revathi v. Union of India47, a two-judge bench of this court upheld the constitutional validity of Section 497, I.P.C. and Section 198(2) of the Cr.P.C. The petitioner contended that whether or not the law permitted a husband to prosecute his disloyal wife, a wife cannot be lawfully disabled from prosecuting her disloyal husband. Section 198(2) Cr.P.C. operates as a fetter on the wife in prosecuting her adulterous husband. Hence, the relevant provision is unconstitutional on the ground of obnoxious discrimination.
This Court held that Section 497 I.P.C. and Section 198(2) Cr.P.C. together form a legislative package. In essence, the former being substantive, and the latter being largely procedural. Women, under these provisions, neither have the right to prosecute, as in case of a wife whose husband has an adulterous relationship with another woman; nor can they be prosecuted as the pari delicto.

8.4. The view taken by the two-judge bench in Revathi (supra), that the absence of the right of the wife of an adulterous husband to sue him, or his paramour, was well-balanced by the inability of the husband to prosecute his adulterous wife for adultery, cannot be sustained. The wife’s inability to prosecute her husband and his paramour, should be equated with the husband’s ability to prosecute his wife’s paramour.

9. In the present case, the constitutionality of Section 497 is assailed by the Petitioners on the specific grounds that Section 497 is violative of Articles 14, 15 and 21.

9.1. Mr. Kaleeswaram Raj learned Counsel appearing for the Petitioners and Ms. Meenakshi Arora, learned Senior Counsel appearing for the Intervenors inter alia submitted that Section 497 criminalizes adultery based on a classification made on sex alone. Such a classification bears no rational nexus with the object sought to be achieved and is hence discriminatory.

It was further submitted that Section 497 offends the Article 14 requirement of equal treatment before the law and discriminates on the basis of marital status. It precludes a woman from initiating criminal proceedings. Further, the consent of the woman is irrelevant to the offence. Reliance was placed in this regard on the judgment of this Court in W. Kalyani v. State48.

The Petitioners submit that the age-old concept of the wife being the property of her husband, who can easily fall prey to seduction by another man, can no longer be justified as a rational basis for the classification made under Section 497.

An argument was made that the ‘protection’ given to women under Section 497 not only highlights her lack of sexual autonomy, but also ignores the social repercussions of such an offence.

The Petitioners have contended that Section 497 of the I.P.C. is violative of the fundamental right to privacy under Article 21, since the choice of a partner with whom she could be intimate, falls squarely within the area of autonomy over a person’s sexuality. It was submitted that each individual has an unfettered right (whether married or not; whether man or woman) to engage in sexual intercourse outside his or her marital relationship.

The right to privacy is an inalienable right, closely associated with the innate dignity of an individual, and the right to autonomy and self- determination to take decisions. Reliance was placed on the judgment in Shafin Jahan v. Asokan K.M. & Ors.49 where this Court observed that each individual is guaranteed the freedom in determining the choice of one’s partner, and any interference by the State in these matters, would have a serious chilling effect on the exercise of the freedoms guaranteed by the Constitution.

The Petitioners placed reliance on the judgment of K.S. Puttaswamy v. Union of India50 wherein a nine-judge bench of this Court held that the right to make decisions on vital matters concerning one’s life are inviolable aspects of human personality. This Court held that:

” 169. ….. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action….”
(Emphasis supplied)

The Petitioners and Intervenors have prayed for striking down Section 479 I.P.C. and Section 198(2) of the Cr.P.C. as being unconstitutional, unjust, illegal, arbitrary, and violative of the Fundamental Rights of citizens.

9.2. On the other hand, Ms. Pinky Anand, learned ASG forcefully submitted that adultery must be retained as a criminal offence in the I.P.C. She based her argument on the fact that adultery has the effect of breaking up the family which is the fundamental unit in society. Adultery is undoubtedly morally abhorrent in marriage, and no less an offence than the offences of battery, or assault. By deterring individuals from engaging in conduct which is potentially harmful to a marital relationship, Section 497 is protecting the institution of marriage, and promoting social well- being.

The Respondents submit that an act which outrages the morality of society, and harms its members, ought to be punished as a crime. Adultery falls squarely within this definition.

The learned ASG further submitted that adultery is not an act that merely affects just two people; it has an impact on the aggrieved spouse, children, as well as society. Any affront to the marital bond is an affront to the society at large. The act of adultery affects the matrimonial rights of the spouse, and causes substantial mental injury.

Adultery is essentially violence perpetrated by an outsider, with complete knowledge and intention, on the family which is the basic unit of a society.

It was argued on behalf of the Union of India that Section 497 is valid on the ground of affirmative action. All discrimination in favour of women is saved by Article 15(3), and hence were exempted from punishment. Further, an under- inclusive definition is not necessarily discriminatory. The contention that Section 497 does not account for instances where the husband has sexual relations outside his marriage would not render it unconstitutional.

It was further submitted that the sanctity of family life, and the right to marriage are fundamental rights comprehended in the right to life under Article 21. An outsider who violates and injures these rights must be deterred and punished in accordance with criminal law.

It was finally suggested that if this Court finds any part of this Section violative of the Constitutional provisions, the Court should read down that part, in so far as it is violative of the Constitution but retain the provision.

DISCUSSION AND ANALYSIS

10. Section 497 is a pre-constitutional law which was enacted in 1860. There would be no presumption of constitutionality in a pre-constitutional law (like Section 497) framed by a foreign legislature. The provision would

have to be tested on the anvil of Part III of the Constitution.

11. Section 497 of the I.P.C. it is placed under Chapter XX of “Offences Relating to Marriage”.

The provision of Section 497 is replete with anomalies and incongruities, such as:

i. Under Section 497, it is only the male-paramour who is punishable for the offence of adultery. The woman who is pari delicto with the adulterous male, is not punishable, even as an ‘abettor’.

The adulterous woman is excluded solely on the basis of gender, and cannot be prosecuted for adultery51.

ii. The Section only gives the right to prosecute to the husband of the adulterous wife. On the other hand, the wife of the adulterous man, has no similar right to prosecute her husband or his paramour.

iii. Section 497 I.P.C. read with Section 198(2) of the Cr.P.C. only empowers the aggrieved husband, of a married wife who has entered into the adulterous relationship to initiate proceedings for the offence of adultery.

iv. The act of a married man engaging in sexual intercourse with an unmarried or divorced woman, does not constitute ‘adultery’ under Section 497.

v. If the adulterous relationship between a man and a married woman, takes place with the consent and connivance of her husband, it would not constitute the offence of adultery.

The anomalies and inconsistencies in Section 497 as stated above, would render the provision liable to be struck down on the ground of it being arbitrary and discriminatory.

12. The constitutional validity of section 497 has to be tested on the anvil of Article 14 of the Constitution.

12.1. Any legislation which treats similarly situated persons unequally, or discriminates between persons on the basis of sex alone, is liable to be struck down as being violative of Articles 14 and 15 of the Constitution, which form the pillars against the vice of arbitrariness and discrimination.

12.2. Article 14 forbids class legislation; however, it does not forbid reasonable classification. A reasonable classification is permissible if two conditions are satisfied:

i. The classification is made on the basis of an ‘intelligible differentia’ which distinguishes persons or things that are grouped together, and separates them from the rest of the group; and

ii. The said intelligible differentia must have a rational nexus with the object sought to be achieved by the legal provision.

The discriminatory provisions in Section 497 have to be considered with reference to the classification made. The classification must have some rational basis,52 or a nexus with the object sought to be achieved.

With respect to the offence of adultery committed by two consenting adults, there ought not to be any discrimination on the basis of sex alone since it has no rational nexus with the object sought to be achieved.

Section 497 of the I.P.C., makes two classifications:

i. The first classification is based on who has the right to prosecute:

It is only the husband of the married woman who indulges in adultery, is considered to be an aggrieved person given the right to prosecute for the offence of adultery.

Conversely, a married woman who is the wife of the adulterous man, has no right to prosecute either her husband, or his paramour.

ii. The second classification is based on who can be prosecuted.

It is only the adulterous man who can be prosecuted for committing adultery, and not the adulterous woman, even though the relationship is consensual; the adulterous woman is not even considered to be an “abettor” to the offence.

The aforesaid classifications were based on the historical context in 1860 when the I.P.C. was enacted. At that point of time, women had no rights independent of their husbands, and were treated as chattel or ‘property’ of their husbands.

Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a ‘theft’ of his property, for which he could proceed to prosecute the offender.

The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone.

12.3. A law which deprives women of the right to prosecute, is not gender-neutral. Under Section 497, the wife of the adulterous male, cannot prosecute her husband for marital infidelity. This provision is therefore ex facie discriminatory against women, and violative of Article 14.

Section 497 as it stands today, cannot hide in the shadows against the discerning light of Article 14 which irradiates anything which is unreasonable, discriminatory, and arbitrary.

13. A law which could have been justified at the time of its enactment with the passage of time may become out- dated and discriminatory with the evolution of society and changed circumstances.53 What may have once been a perfectly valid legislation meant to protect women in the historical background in which it was framed, with the passage of time of over a century and a half, may become obsolete and archaic.

A provision previously not held to be unconstitutional, can be rendered so by later developments in society, including gender equality.54

Section 497 of the I.P.C. was framed in the historical context that the infidelity of the wife should not be punished because of the plight of women in this country during the 1860’s. Women were married while they were still children, and often neglected while still young, sharing the attention of a husband with several rivals.55 This situation is not true 155 years after the provision was framed. With the passage of time, education, development in civil-political rights and socio-economic conditions, the situation has undergone a sea change. The historical background in which Section 497 was framed, is no longer relevant in contemporary society.

It would be unrealistic to proceed on the basis that even in a consensual sexual relationship, a married woman, who knowingly and voluntarily enters into a sexual relationship with another married man, is a ‘victim’, and the male offender is the ‘seducer’.

Section 497 fails to consider both men and women as equally autonomous individuals in society.

In Anuj Garg v. Hotel Assn. of India,56 this Court held that:

“20. At the very outset we want to define the contours of the discussion which is going to ensue. Firstly, the issue floated by the State is very significant, nonetheless it does not fall in the same class as that of rights which it comes in conflict with, ontologically. Secondly, the issue at hand has no social spillovers. The rights of women as individuals rest beyond doubts in this age. If we consider (various strands of) feminist jurisprudence as also identity politics, it is clear that time has come that we take leave of the theme encapsulated under Section 30. And thirdly we will also focus our attention on the interplay of doctrines of self-determination and an individual’s best interests.

……..

26. When a discrimination is sought to be made on the purported ground of classification, such classification must be founded on a rational criteria. The criteria which in absence of any constitutional provision and, it will bear repetition to state, having regard to the societal conditions as they prevailed in early 20th century, may not be a rational criteria in the 21st century. In the early 20th century, the hospitality sector was not open to women in general. In the last 60 years, women in India have gained entry in all spheres of public life. They have also been representing people at grassroot democracy. They are now employed as drivers of heavy transport vehicles, conductors of service carriages, pilots, et. al. ”

(Emphasis supplied)

The time when wives were invisible to the law, and lived in the shadows of their husbands, has long since gone by. A legislation that perpetuates such stereo-types in relationships, and institutionalises discrimination is a clear violation of the fundamental rights guaranteed by Part III of the Constitution.

There is therefore, no justification for continuance of Section 497 of the I.P.C. as framed in 1860, to remain on the statute book.

14. Article 15(3) of the Constitution is an enabling provision which permits the State to frame beneficial legislation in favour of women and children, to protect and uplift this class of citizens.

Section 497 is a penal provision for the offence of adultery, an act which is committed consensually between two adults who have strayed out of the marital bond. Such a provision cannot be considered to be a beneficial legislation covered by Article 15(3) of the Constitution.

The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as ‘beneficial legislation’.

This Court in Thota Sesharathamma and Anr. v. Thota Manikyamma (Dead) by Lrs. And Ors.57 held that:

“Art. 15(3) relieves from the rigour of Art. 15(1) and charges the State to make special provision to accord to women socio-economic equality. As a fact Art. 15(3) as a fore runner to common code does animate to make law to accord socio-economic equality to every female citizen of India, irrespective of religion, race, caste or religion.”

In W. Kalyani v. State58 this Court has recognised the gender bias in Section 497. The court in Kalyani (supra) observed that “The provision is currently under criticism from certain quarters for showing a string gender bias for it makes the position of a married woman almost as a property of her husband.”

The purpose of Article 15(3) is to further socio- economic equality of women. It permits special legislation for special classes. However, Article 15(3) cannot operate as a cover for exemption from an offence having penal consequences.

A Section which perpetuates oppression of women is unsustainable in law, and cannot take cover under the guise of protective discrimination.

15. The Petitioners have contended that the right to privacy under Article 21 would include the right of two adults to enter into a sexual relationship outside marriage.

The right to privacy and personal liberty is, however, not an absolute one; it is subject to reasonable restrictions when legitimate public interest is involved.

It is true that the boundaries of personal liberty are difficult to be identified in black and white; however, such liberty must accommodate public interest. The freedom to have a consensual sexual relationship outside marriage by a married person, does not warrant protection under Article 21.

In the context of Article 21, an invasion of privacy by the State must be justified on the basis of a law that is reasonable and valid. Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr. (supra): (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State interest, and (iii) proportionality, which ensures a rational nexus between the object and the means adopted. Section 497 as it stands today, fails to meet the three-fold requirement, and must therefore be struck down.

16. The issue remains as to whether ‘adultery’ must be treated as a penal offence subject to criminal sanctions, or marital wrong which is a valid ground for divorce.

16.1. One view is that family being the fundamental unit in society, if the same is disrupted, it would impact stability and progress. The State, therefore, has a legitimate public interest in preserving the institution of marriage.

Though adultery may be an act committed in private by two consenting adults, it is nevertheless not a victim-less crime. It violates the sanctity of marriage, and the right of a spouse to marital fidelity of his/her partner. It impacts society as it breaks the fundamental unit of the family, causing injury not only to the spouses of the adulteror and the adulteress, it impacts the growth and well-being of the children, the family, and society in general, and therefore must be subject to penal consequences.

Throughout history, the State has long retained an area of regulation in the institution of marriage. The State has regulated various aspects of the institution of marriage, by determining the age when an adult can enter into marriage; it grants legal recognition to marriage; it creates rights in respect of inheritance and succession; it provides for remedies like judicial separation, alimony, restitution of conjugal rights; it regulates surrogacy, adoption, child custody, guardianship, partition, parental responsibility; guardianship and welfare of the child. These are all areas of private interest in which the State retains a legitimate interest, since these are areas which concern society and public well-being as a whole.

Adultery has the effect of not only jeopardising the marriage between the two consenting adults, but also affects the growth and moral fibre of children. Hence the State has a legitimate public interest in making it a criminal offence.

16.2. The contra view is that adultery is a marital wrong, which should have only civil consequences. A wrong punishable with criminal sanctions, must be a public wrong against society as a whole, and not merely an act committed against an individual victim.
To criminalize a certain conduct is to declare that it is a public wrong which would justify public censure, and warrant the use of criminal sanction against such harm and wrong doing.

The autonomy of an individual to make his or her choices with respect to his/her sexuality in the most intimate spaces of life, should be protected from public censure through criminal sanction. The autonomy of the individual to take such decisions, which are purely personal, would be repugnant to any interference by the State to take action purportedly in the ‘best interest’ of the individual.

Andrew Ashworth and Jeremy Horder in their commentary titled ‘Principles of Criminal Law’59 have stated that the traditional starting point of criminalization is the ‘harm principle’ the essence of which is that the State is justified in criminalizing a conduct which causes harm to others. The authors opine that the three elements for criminalization are: (i) harm, (ii) wrong doing, and (iii) public element, which are required to be proved before the State can classify a wrongful act as a criminal offence.

John Stuart Mill states that “the only purpose for which power can be rightly exercised over the member of a civilized community against his will is to prevent harm to others.” 60

The other important element is wrongfulness. Andrew Simester and Andreas von Hirsch opine that a necessary pre-requisite of criminalization is that the conduct amounts to a moral wrong.61 That even though sexual infidelity may be morally wrong conduct, this may not be a sufficient condition to criminalize the same.

17. In my view, criminal sanction may be justified where there is a public element in the wrong, such as offences against State security, and the like. These are public wrongs where the victim is not the individual, but the community as a whole.

Adultery undoubtedly is a moral wrong qua the spouse and the family. The issue is whether there is a sufficient element of wrongfulness to society in general, in order to bring it within the ambit of criminal law?

The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment.

The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.

The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary. In order to determine what conduct requires State interference through criminal sanction, the State must consider whether the civil remedy will serve the purpose. Where a civil remedy for a wrongful act is sufficient, it may not warrant criminal sanction by the State.

18. In view of the aforesaid discussion, and the anomalies in Section 497, as enumerated in para 11 above, it is declared that :

(i) Section 497 is struck down as unconstitutional being violative of Articles 14, 15 and 21 of the Constitution.

(ii) Section 198(2) of the Cr.P.C. which contains the procedure for prosecution under Chapter XX of the I.P.C. shall be unconstitutional only to the extent that it is applicable to the offence of Adultery under Section 497.

(iii) The decisions in Sowmithri Vishnu (supra), V. Rewathi (supra) and W. Kalyani (supra) hereby stand overruled.

……………………..J.
(INDU MALHOTRA)

New Delhi
September 27, 2018

FOOTNOTE

1 The New international Webster’s Comprehensive Dictionary of the English Language, Deluxe Encyclopedic Edition, Trident Press International (1996 Edn.) at page 21.
2 Outhwaite, R.B. (2007). The Rise and Fall of the English Ecclesiastical Courts, 1500–1860. Cambridge, UK: Cambridge University Press
3 Fernandez, Angela “Tapping Reeve, Nathan Dane, and James Kent: Three Fading Federalists on Marital Unity.” Married Women and the Law: Coverture in England and the Common Law World, edited by Tim Stretton and Krista J. Kesselring, McGill-Queen’s University Press, 2013, pp. 192–216.
4 Blackstone‘s Commentaries on the Laws of England, Books III & IV (8th Edn.), 1778
5 Bracton: De Legibus Et Consuetudinibus Angliæ (Bracton on the Laws and Customs of England attributed to Henry of Bratton, c. 1210-1268) Vol III, pg. 115
Available at http://bracton.law.harvard.edu/index.html
6 [1966] 3 All E.R. 601
7 1807 – 1901 A.D.
8 Margot Finn (1996). Women, Consumption and Coverture in England, c. 1760–1860. The Historical Journal, 39, pp 703-722
9 The High Sheriff of Oxfordshire’s Annual Law Lecture given by Lord Wilson on 9 October 2012
Available at: https://www.supremecourt.uk/docs/speech-121009.pdf
10 Matrimonial Causes Act 1857; 1857 (20 & 21 Vict.) C. 85
11 LIX. No Action for Criminal Conversation:
“After this Act shall have come into operation no Action shall be maintainable in England for Criminal Conversation.”
12 XXXIII. Husband may claim Damages from Adulterers:
“Any Husband may, either in a Petition for Dissolution of Marriage or for Judicial Separation, or in a Petition limited to such Object only, claim Damages from any Person on the Ground of his having committed Adultery with the Wife of such Petitioner, and such Petition shall be served on the alleged Adulterer and the Wife, unless the Court shall dispense with such Service, or direct some other Service to be substituted; and the Claim made by every such Petition shall be heard and tried on the same principle, in the same manner, and subject to the same or the like rules and regulations as actions for criminal conversations are now tried and decided in Courts of Common Law; and all the enactments herein contain with reference to the hearing and decision of Petitions to the Courts shall, so far as may be necessary, be deemed applicable to the hearing and decision of Petitions presented under this enactment..”
13 Id.
14 Uma Chakravarti, Gendering Caste Through a Feminist Lens, STREE Publications (2003) at page 71.
15 156th Report on the Indian Penal Code (Vol. I), Law Commission of India at para 9.43 at page 169
Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf
16 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code
17 A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas Babington Macaulay, Note Q
18 The laws governing adultery in the Colonial areas were laid down in Regulation XVII of 1817, and Regulation VII of 1819; the Law Commissioners observed that the strict evidentiary and procedural requirements, deter the people from seeking redress.
19 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code
20 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code
21 A Penal Code prepared by The Indian Law Commissioners, (1838), The Second Report on the Indian Penal Code
22 42nd Report on the Indian Penal Code, Law Commission of India
Available at: http://lawcommissionofindia.nic.in/1-50/report42.pdf
23 156th Report on the Indian Penal Code (Vol. I), Law Commission of India, pages 169 – 172
Available at: http://lawcommissionofindia.nic.in/101-169/Report156Vol1.pdf
24 Report of the Committee on Reforms of Criminal Justice System, Government of India, Ministry of Home Affairs, chaired by Justice V.S. Malimath, (2003)
Available at:https://mha.gov.in/sites/default/files/criminal_justice_system.pdf
25 Illinois Criminal Code, 720 ILCS 5/11-35, Adultery
“(a) A person commits adultery when he or she has sexual intercourse with another not his or her spouse, if the behavior is open and notorious,…”
26 Martin Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 Journal Of Family Law 45, 51-52 (1991)
27 Abhinav Sekhri, The Good, The Bad, and The Adulterous: Criminal Law and Adultery in India, 10 Socio Legal Review 47 (2014)
28 875 F. Supp. 1465
29 Utah Code Ann. 76-7-103, “(1) A married person commits adultery when he voluntarily has sexual intercourse with a person other than his spouse. (2) Adultery is a class B misdemeanour.”
30 New York Penal Laws, Article 255.17-Adultery, “A person is guilty of adultery when he engages in sexual intercourse with another person at a time when he has a living spouse, or the other person has a living spouse. Adultery is a class B misdemeanour.”
31 No. 15 CVS 5646 (2017) [Superior Court of North Carolina)
32 539 US 558 (2003)
33 Criminal Code of Canada, 1985, Section 172, “(1) Every one who, in the home of a child, participates in adultery or sexual immorality or indulges in habitual drunkenness or any other form of vice, and thereby endangers the morals of the child or renders the home an unfit place for the child to be in, is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.
(2) For the purposes of this section, “child” means a person who is or appears to be under the age of eighteen years.”
34 Divorce Act, 1968, “Section 8 (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.
(2) Breakdown of a marriage is established only if:
(a) …..
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
(i) committed adultery, or …..”
35 S. 54(1)(a), Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,
“54. (1) In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say:
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent…..”
36 S. 58, Law Reform (Marriage and Divorce) Act, 1976. [Malaysia] states,
“58. (1) On a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce and alleging adultery, the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.
(2) A petition under subsection (1) may include a prayer that the co-respondent be condemned in damages in respect of the alleged adultery.
(3) Where damages have been claimed against a co-respondent— (a) if, after the close of the evidence for the petitioner, the court is of the opinion that there is not sufficient evidence against the co-respondent to justify requiring him or her to reply, the co-respondent shall be discharged from the proceedings; or (b) if, at the conclusion of the hearing, the court is satisfied that adultery between the respondent and co-respondent has been proved, the court may award the petitioner such damages as it may think fit, but so that the award shall not include any exemplary or punitive element.”
37 S. 183, Penal Code, 1907 [Japan], “Whoever commits adultery with a married woman will be punished by prison upto two years. The same applies to the other party of the adultery. These offences are only prosecuted on demand of the husband. If the husband has allowed the Adultery, his demand is not valid.” [ as translated by Karl-Friedrich Lenz, in History of Law in Japan since 1868, ed. Wilhelm Rohl, published by Brill, 2005, at page 623]

38 H. Meyers, “Revision of Criminal Code of Japan” Washington Law Review & State Bar Journal, Vol. 25, (1950) at pp. 104-134
39 Article 770, Civil Code, 1896. [Japan], “Article 770 (1) Only in the cases stated in the following items may either husband or wife file a suit for divorce: (i) if a spouse has committed an act of unchastity; ….”
40 RH v. DE (594/2013) [2014] ZASCA 133 (25 September 2014)
411914 AD 88
42 Id.
43 Anayasa Mahkemesi, 1996/15; 1996/34 (Sept. 23, 1996)
See also, Anayasa Mahakemsi, 1998/3; 1998/28 (June 23, 1998) and Anayasa Mahakemsi, 1997/45. 1998/48 (July 16, 1998)
44 Adultery Case, 27-1 (A) KCCR 20, February 26, 2015
45 1954 SCR 930
46 (1985) Supp SCC 137
47 (1988) 2 SCC 72
48 (2012) 1 SCC 358
49 2018 SCC Online SC 343
50 (2017) 10 SCC 1
51 W Kalyani v. State, (2012) 1 SCC 358; at para 10.
52 E.V. Chinnaiah v. State of A.P., (2005) 1 SCC 394 (A legislation may not be amenable to a challenge on the ground of violation of Article 14 of the Constitution if its intention is to give effect to Articles 15 and 16 or when the differentiation is not unreasonable or arbitrary).
53 Motor General Traders v. State of Andhra Pradesh, (1984) 1 SCC 222;
See also Ratan Arya v. State of Tamil Nadu, (1986) 3 SCC 385
54 John Vallamattom v. Union of India, (2003) 6 SCC 611
55 ‘A Penal Code prepared by The Indian Law Commissioners, (1838), Notes of Lord Thomas Babington Macaulay, Note Q
56 (2008) 3 SCC 1
57 (1991) 4 SCC 312
58 (2012) 1 SCC 358
59 Oxford University Press, (7th Edn.) May 2013
60 Mill, John S., Chapter I: Introductory, On Liberty, Published London: Longman, Roberts, & Green Co. 1869, 4th Edn.
61 A P Simester and Andreas von Hirsch, Crimes, Harms, And Wrongs: On The Principles Of Criminalisation, Oxford: Hart Publishing (2011)

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]]> https://bnblegal.com/landmark/joseph-shine-vs-union-of-india/feed/ 0 Smt. Sowmithri Vishnu Vs Union of India & Anr https://bnblegal.com/landmark/smt-sowmithri-vishnu-vs-union-of-india-anr/ https://bnblegal.com/landmark/smt-sowmithri-vishnu-vs-union-of-india-anr/#respond Thu, 26 Nov 2020 09:11:10 +0000 https://bnblegal.com/?post_type=landmark&p=257946 IN SUPREME COURT OF INDIA SMT. SOWMITHRI VISHNU …PETITIONER Vs. UNION OF INDIA & ANR. …RESPONDENT DATE OF JUDGMENT: 27/05/1985 BENCH: CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S. SEN, AMARENDRA NATH (J) CITATION: 1985 AIR 1618 1985 SCR Supl. (1) 741 1985 SCC Supl. 137 1985 SCALE (1)960 CITATOR INFO : R 1988 SC 835 (4) ACT: […]

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]]> IN SUPREME COURT OF INDIA

SMT. SOWMITHRI VISHNU …PETITIONER
Vs.
UNION OF INDIA & ANR. …RESPONDENT

DATE OF JUDGMENT: 27/05/1985

BENCH: CHANDRACHUD, Y.V. ((CJ) PATHAK, R.S. SEN, AMARENDRA NATH (J)

CITATION: 1985 AIR 1618 1985 SCR Supl. (1) 741

1985 SCC Supl. 137 1985 SCALE (1)960

CITATOR INFO : R 1988 SC 835 (4)

ACT:

Indian Penal Code, s. 497-Constitutional validity of.

HEADNOTE:

During the pendency of a divorce petition against the petitioner/wife on the grounds of desertion and adultery, the husband also filed a complaint against one Dharma Ebenezer u/s. 497 of the Penal Code charging him with having committed adultery with the petitioner. Thereafter the petitioner filed this writ petition for quashing the complaint on the grounds (1) that s. 497 of the Penal Code is violative of Art. 14 of the Constitution because, by making an irrational classification between men and women, it unjustifiably denies to women the right which is given to men This argument rests on the following three grounds- (i) Section 497 confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery; (ii) Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and, (iii) Section 497 does not take in cases where the husband has sexual relations with an unmarried women, with the result that husbands have, as it were, a free licence under the law to have extramarital relationship with unmarried women; and (2) That the right to life includes the right to reputation and therefore if the outcome of a trial is likely to affect the reputation of a person adversely, he or she ought to be entitled appear and to be heard in that trial and since s. 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard, the section is bad as violating Art. 21 of the Constitution.

Dismissing the writ petition,

^
HELD: 1 (i) The law, as it is, does not offend Art. 14 or 15 of the Constitution. The offence of adultery by its very definition, can be committed by a man and not by a woman: The argument of the petitioner really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Where such an argument permissible, several provisions of the penal law may have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough. Such arguments go to the policy of the law, not to its constitutionality, unless while implementing the policy, any provision of the Constitution is infringed. Therefore, it cannot be accepted that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. However, it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ’transformation’ which the society has undergone. [745 E-F; G-H; 746A]

1(ii) Section 497 does not envisage the prosecution of the wife by the husband for ’adultery’. The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed, the section provides expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in s. 497 is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. [746 D-G]

1 (iii) Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried women. It only makes a specific kind of extramarital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps, invites a civil action by the wife for separation. The legislature is entitled to deal with the evil where it is felt and seen most: A man seducing the wife of another. [746H; 747A]

(2) It is correct to say that s.497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. But, that does not justify the proposition that she is not entitled to be heard at the trial. There is no doubt that if the wife makes an application in the trial court that she should be heard before a finding is recorded on the question of adultery, the application would receive due consideration from the court. There is nothing, either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to be adversely affected directly and immediately, by the decision of the court. The right of hearing is a concomitant of the principles of natural justice, though not in all situations. That right can be read into the law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not contained in s.497 cannot render that section unconstitutional as violating Art. 21. [748 A-D;]

Francies Coralie v. Union Territory AIR 1981 SC 736 & Board of Trustees, Fort of Bombay v. Nadkarni, AIR 1983 SC 109 referred to.

Yusuf Abdul Aziz v. The State of Bombay [1954] SCR 930 followed.

(3) In the instant case. there was general agreement that since the petitioner’s husband has already obtained divorce against her on the ground of desertion, no useful purpose will be served by inquiring into the allegation whether she had adulterous relationship with Dharma Ebenezer, against whom the husband has lodged a complaint u/s. 497 of the Penal Code-Accordingly, the Court quashed that complaint and directed that no further proceedings will be taken therein.

JUDGMENT:

ORIGINAL JURISDICTION : Writ Petition No. 845 of 1980.

(Under Article 32 of the Constitution of India)

Mrs. Nalini Chidambaram and Miss Seita Vaidyalingam for the Petitioner.

B. Datta and R.N. Poddar for the Respondent No. 1.

Miss Lily Thomas for the Respondent No. 2.

The Judgment of the Court was delivered by.

CHANDRACHUD, C.J. By this petition under Article 32 of the Constitution, the petitioner challenges the validity of section 497 of the Penal Code which defines the offence of ’adultery’ and prescribes punishment for it. A few facts, interesting but unfortunate, leading to this petition are these:

The petitioner filed a petition for divorce against her husband on the ground of desertion. The trial court dismissed that petition, holding that the petitioner herself had deserted the husband and not the other way about. Thereafter, the husband filed a petition for divorce against the petitioner on two grounds: firstly, that she had deserted him and secondly, that she was living in adultery with a person called Dharma Ebenezer. The petitioner conceded in that petition that in view of the finding recorded in the earlier proceeding that she had deserted her husband, a decree for divorce may be passed against her on the ground of desertion. So far so good. But, the petitioner contended further that the Court should not adjudicate upon the question of adultery since it was unnecessary to do so. That plea was opposed by the husband. He contended that he was entitled to obtain a decree of divorce against the petitioner not only on the ground of desertion but also on the ground of adultery and that, there was no reason why he should be denied an opportunity to show that the petitioner was living in adultery. The husband’s contention was accepted by the trial court but, in a revision application filed by the petitioner, the High Court accepted her plea and held that since, the finding recorded in the earlier petition was binding on the parties, a decree for divorce had to be passed in favour of the husband on the ground of desertion and that, it was unnecessary to inquire into the question of adultery. We are informed at the Bar that, pursuant to the High Court’s view, a decree for divorce has already been passed in favour of the husband on the ground that the petitioner had deserted him.

While his petition for divorce was pending against the petitioner, the husband filed a complaint against Dharma Ebenezer under section 497 of the Penal Code charging him with having committed adultery with the petitioner. This writ petition has been filed by the petitioner for quashing that complaint on the ground that the very provision which creates the offence of ’adultery’, namely, section 497 of the Penal Code, is unconstitutional.

Section 497 is one of the six sections is Chapter XX of the Penal Code, which is entitled ’Of Offences Relating to Marriage’. Section 497 reads thus:

“Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.”

By reason of section 198(1) of the Code of Criminal Procedure, 1973, no Court can take cognizance of an offence punishable under Chapter XX of the Penal Code except upon a complaint made by some person aggrieved by the offence. Subsection (2) of section 198 provides that, for the purposes of sub-section (1), “no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under section 497 or section 498 of the Penal Code”. Section 498 prescribes punishment for enticing or taking away or detaining a married woman with criminal intent.

Mrs. Nalini Chidambaram, who appears on behalf of the petitioner, contends that Section 497 of the Penal Code is violative of Article 14 of the Constitution because, by making an irrational classification between man and women, it unjustifiably denies to women the right which is given to men. This argument rests on the following three grounds: (1) Section 497 confers upon the husband the right to prosecute the adulterer but, it does not confer any right upon the wife to prosecute the woman with whom her husband has committed adultery; (2) Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman; and, (3) Section 497 does not take in cases where the husband has sexual relations with an unmarried woman, with the result that husbands have, as it were, a free licence under the law to have extra-marital relationship with unmarried women. The learned counsel complains that Section 497 is flagrant instance of ’gender discrimination’, ’legislative despotism’ and ’male chauvinism’. It is urged that the section may, at first blush, appear as if it is a beneficial legislation intended to serve the interests of women but, on closer examination, it would be found that the provision contained in the section is a kind of ’Romantic Paternalism’, which stems from the assumption that women, like chattels, are the property of men.

These contentions have a strong emotive appeal but they have no valid legal basis to rest upon. Taking the first of these three grounds, the offence of adultery, by its very definition, can be committed by a man and not by a woman : “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man … … is guilty of the offence of adultery.”The argument really comes to this that the definition should be recast by extending the ambit of the offence of adultery so that, both the man and the woman should be punishable for the offence of adultery. Were such an argument permissible, several provisions of the penal law my have to be struck down on the ground that, either in their definition or in their prescription of punishment, they do not go far enough. For example, an argument could be advanced as to why the offence of robbery should be punishable with imprisonment for ten years under section 392 of the penal Code but the offence of adultery should be punishable with a sentence of five years only : ’Breaking a matrimonial home is not less serious a crime than breaking open a house’. Such arguments go to the policy of the law, not to its constitutionality, unless, while implementing the policy, any provision of the Constitution is infringed. We cannot accept that in defining the offence of adultery so as to restrict the class of offenders to men, any constitutional provision is infringed. It is commonly accepted that it is the man who is the seducer and not the woman. This position my have undergone some change over the years but it is for the legislature to consider whether Section 497 should be amended appropriately so as to take note of the ’transformation’ which the society has undergone. The Law Commission of India in its 42nd Report, 1971, recommended the retention of Section 497 in its present form with the modification that, even the wife, who has sexual relations with a person other than her husband, should be made punishable for adultery. The suggested modification was not accepted by the legislature. Mrs. Anna Chandi, who was in the minority, voted for the deletion of Section 497 on the ground that “it is the right time to consider the question whether the offence of adultery as envisaged in Section 497 is in tune with our present day notions of woman’s status in marriage”. The repot of the Law Commission show that there can be two opinions on the desirability of retaining a provision like the one contained in Section 497 on the statute book. But, we cannot strike down that section on the ground that it is desirable to delete it.

In so far as the second of the three grounds is concerned, section 497 does not envisage the prosecution of the wife by the husband for ’adultery’. The offence of adultery as defined in that section can only be committed by a man, not by a woman. Indeed, the section provides expressly that the wife shall not be punishable even as an abettor. No grievance can then be made that the section does not allow the wife to prosecute the husband for adultery. The contemplation of the law, evidently, is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime. The offence of adultery, as defined in section 497, is considered by the Legislature as an offence against the sanctity of the matrimonial home, an act which is committed by a man, as it generally is. Therefore, those men who defile that sanctity are brought within the net of the law. In a sense, we revert to the same point : Who can prosecute whom for which offence depends, firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute.

The self-same answer holds good in the case of the third ground also. Law does not confer freedom upon husbands to be licentious by gallivanting with unmarried woman. It only makes a specific kind of extra-marital relationship an offence, the relationship between a man and a married woman, the man alone being the offender. An unfaithful husband risks or, perhaps, invites a civil action by the wife for separation. The legislature is entitled to deal with the evil where it is felt and seen most : A man seducing the wife of another. Mrs. Chidambaram says that women, both married and unmarried, have changed their life style over the years and there are cases where they have wrecked the peace and happiness of other matrimonial homes. We hope this is not too right but, an under-inclusive definition is not necessarily discriminatory. The alleged transformation in feminine attitudes, for good or bad may justly engage the attention of the law-makers when the reform of penal law is undertaken. They may enlarge the definition of adultery to keep pace with the moving times. But, until then, the law must remain as it is. The law, it is, does not offend either Article 14 or Article 15 of the Constitution. Incidentally, the demand of the petitioner that sexual relationship of a husband with an unmarried women should also be comprehended with in the definition of ’adultery’ is a crusade by a woman against a woman. If the paramour of a married woman can be guilty of adultery, why can an unmarried girl who has sexual relations with a married man not be guilty of adultery ? That is the grievance of the petitioner.

Mrs Chidambaram has challenged the validity of section 497 on yet another ground, namely, that it violates Article 21 of the Constitution. Relying upon the decisions of this Court in Francis Coralie v. Union Territory and Board of Trustees, Fort of Bombay v. Nadkarni, counsel argues that the right to life includes the right to reputation and, therefore, if the outcome of a trial is likely to affect the reputation of a person adversely, he or she ought to be entitled to appear and be heard in that trial. A law which does not confer upon such a person the right of being heard is violative of Article 21. This argument, for its better appreciation, may be put in a concrete shape by taking a hypothetical example : The husband ’A’ wants to get rid of his wife ’B’. He colludes with his friend ’C’ and prosecutes him for committing adultery with ’B’. C’s trial for adultery is mere pretence because, he and A are ad idem that he should be convicted for committing adultery with B. The argument of the counsel is that the real victim of such a prosecution is the wife B because, it is her reputation which is most importantly involved and assailed. Since section 497 does not contain a provision that she must be impleaded as a necessary party to the prosecution or that she would be entitled to be heard, the section is said to be bad.

Counsel is right that section 497 does not contain a provision for hearing the married woman with whom the accused is alleged to have committed adultery. But, that does not justify the proposition that she is not entitled to be heard at the trial. We have no doubt that if the wife makes an application in the trial Court that she should be heard before a finding is recorded on the question of adultery, the application would receive due consideration from the Court. There is nothing, either in the substantive or the adjectival criminal law, which bars the court from affording a hearing to a party, which is likely to be adversely affected, directly and immediately, by the decision of the Court In fact, instances are not unknown in criminal law where, though the prosecution is in the charge of the Public Prosecutor, the private complainant is given permission to oversee the proceedings. One step more, and the wife could be allowed a hearing before an adverse finding is recorded that, as alleged by her husband, the accused had committed adultery with her. The right of hearing is a concomitant of the principles of natural justice, though not in all situations. That right can be read into the law in appropriate cases. Therefore, the fact that a provision for hearing the wife is not contained in section 497 cannot render that section unconstitutional as violating Article 21.

Instead of embarking upon this discussion, we could have as well dismissed the writ petition by relying upon the decision of a Constitution Bench of this Court in Yusuf Abdul Aziz v. The State of Bombay, which held that section 497 of the Penal Code does not offend Articles 14 and 15 of the Constitution. However, the petitioner’s counsel had many more arguments to advance and since, more than 30 years have gone by since the decision in Yusuf Abdul Aziz was given, we thought that we might examine the position afresh, particularly in the light of the alleged social transformation in the behavioural pattern of women in matters of sex.

Though it is true that the erring spouses have no remedy against each other within the confines of section 497 of the Penal Code, that is to say, they cannot prosecute each other for adultery, each one has a remedy against the other under the civil law, for divorce on the ground of adultery. ’Adulter’ under the civil law has a wider connotation than under the Penal Code. If we were to accept the argument of the petitioner, Section 497 will be obliterated from the statute book and adulterous relations will have a more free play than now. For then, it will be impossible to convict anyone of adultery at all. It is better, from the point of view of the interests of the society, that at least a limited class of adulterous relationship is punishable by law. Stability of marriages is not an ideal to be scorned.

There was general agreement before us that since the petitioner’s husband has already obtained divorce against her on the ground of desertion, no useful purpose will be served by inquiring into the allegation whether she had adulterous relationship with Dharma Ebenezer, against whom the husband has lodged a complaint under section 497 of the Penal Code. Accordingly, we quash that complaint and direct that no further proceedings will be taken therein.

In the result, the writ petition is dismissed. There will be no order as to costs.

M.L.A. Petition dismissed.

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]]> https://bnblegal.com/landmark/smt-sowmithri-vishnu-vs-union-of-india-anr/feed/ 0 Sri Sankari Prasad Singh Deo Vs. Union of India and State of Bihar(and Other Cases). https://bnblegal.com/landmark/sri-sankari-prasad-singh-deo-vs-union-of-india-and-state-of-biharand-other-cases/ https://bnblegal.com/landmark/sri-sankari-prasad-singh-deo-vs-union-of-india-and-state-of-biharand-other-cases/#respond Tue, 17 Nov 2020 09:30:22 +0000 https://bnblegal.com/?post_type=landmark&p=257833 IN SUPREME COURT OF INDIA SRI SANKARI PRASAD SINGH DEO …PETITIONER Vs. UNION OF INDIA AND STATE OF BIHAR(And Other Cases). …RESPONDENT DATE OF JUDGMENT: 05/10/1951 BENCH: SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA CITATION: 1951 AIR 458 1952 SCR CITATOR INFO : F 1952 SC 252 […]

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]]> IN SUPREME COURT OF INDIA

SRI SANKARI PRASAD SINGH DEO …PETITIONER
Vs.
UNION OF INDIA AND STATE OF BIHAR(And Other Cases). …RESPONDENT

DATE OF JUDGMENT: 05/10/1951

BENCH: SASTRI, M. PATANJALI KANIA, HIRALAL J. (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION:

1951 AIR 458

1952 SCR

CITATOR INFO :

F 1952 SC 252 (1,30)

RF 1954 SC 257 (4)

R 1959 SC 395 (28)

E&D 1959 SC 512 (4)

F 1965 SC 845 (20,21,23,24,25,27,33,35,38,39

R 1965 SC1636 (25)

O 1967 SC1643 (12,14,23,27,43,44,56,59,61,63

RF 1973 SC1461 (16,20,27,30,32,38,39,44,46,88

RF 1975 SC1193 (17)

RF 1975 SC2299 (649)

RF 1980 SC1789 (96)

RF 1980 SC2056 (61)

RF 1980 SC2097 (6)

D 1981 SC 271 (19,33,42,43)

RF 1986 SC1272 (78)

RF 1986 SC1571 (34)

RF 1987 SC1140 (3)

ACT:

Constitution (First Amendment) Act, 1951, Arts. 31A, 31B-Validity–Constitution of India, 1950, Arts. 13(2), 368, 379, 392–Provisional Parliament–Power to amend Constitution- Constitution (Removal of Difficulties) Order No. 2 of 1950–Validity –Amendment of Constitution–Proce- dure–Bill amended by Legislature–Amendment curtailing fundamental rights–Amendment affecting land–Validity of Amending Act.

HEADNOTE:

The Constitution (First Amendment) Act, 1951, which has inserted, inter alia, Arts. 31A and 3lB in the Constitution of India is not ultra vires or unconstitutional.

The provisional Parliament is competent to exercise the power of amending the Constitution under Art. 368. The fact that the said article refers to the two Houses of the Par- liament and the President separately and not to the Parlia- ment, does not lead to the inference that the body which is invested with the power to amend is not the Parliament but a different body consisting of the two Houses.

The words “all the powers conferred by the provisions of this Constitution on Parliament” in Art. 379 are not con- fined to such powers as could be exercised by the provision- al Parliament consisting of a single chamber, but are wide enough to include the power to amend the Constitution con- ferred by Art. 368.

The Constitution (Removal of Difficulties) Order No. 2 made by the President on the 26th January, 1950, which purports to adapt Art. 368 by omitting “either House of” and “in each House” and substituting “Parliament” for “that House” is not

beyond the powers conferred on him by Art. 39:1 and ultra vires. There is nothing in Art. 392 to suggest that the President should wait, before adapting a particular article, till the occasion actually arose for the provisional Parlia- ment to exercise the power conferred by the article.

The view that Art. 368 is a complete code in itself in respect of the procedure provided by it and does not contem- plate any amendment of a Bill for amendment of the Constitu- tion after it has been introduced, and that if the Bill is amended during its passage through the House, the amendment Act cannot be said to have been passed in conformity with the procedure prescribed by Art. 368 and would be invalid, is erroneous.

Although “law” must ordinarily include constitutional law there is a clear demarcation between ordinary law which is made in the exercise of legislative power and constitu- tional law, which is made in the exercise of constituent power. In the context of Art. 13, “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the constitution made in the exercise of constituent power with the result that Art. 13(2) does not affect amendments made under Art. 368.

Articles 31A and 3lB inserted in the Constitution by the Constitution (First Amendment) Act, 1951, do not curtail the powers of the High Court under Art. 226 to issue writs for enforcement of any of the rights conferred by Part III or of the Supreme Court under Arts. 132 and 136 to entertain appeals from orders issuing or refusing such writs; but they only exclude from the purview of Part III ’certain classes of cases. These articles therefore do not require ratifica- tion under cl. (b) of the proviso to Art. 368.

Articles 31A and 31B are not invalid on the ground that they relate to land which is a matter covered by the State List (item 18 of List II) as these articles are essentially amendments of the Constitution, and Parliament alone has the power to enact them.

JUDGMENT:

ORIGINAL JURISDICTION : Petitions under

Art. 32 of the Constitution (Petitions Nos. 166,287,317 to 319, 371,372, 374 to 389, 392 to 395, 418, 481 to 485 of 1951). The facts which led to these petitions are stated in the judgment.

Arguments were heard on the l2th, l4th, l1th, 18th and 19th of September.

P.R. Das (B. Sen, with him) for the petitioners in Petitions Nos. 37 l, 372, 382,383, 388 and 392. Article 368 of the Constitution is a complete code in itself. It does not contemplate any amendments to the Bill after its introduction. The Bill must be passed and assent- ed to by the President as it was introduced without any amendment. As the Constitution Amendment Bill was amended in several respects during its passage through the Parliament, the Constitution (First Amendment) Act was not passed in conformity with the procedure laid down in article 368 and is therefore invalid. When the Parliament exercises its ordinary legislative powers it has power to amend the Bills under articles 107. 108, 109(3) & (4). It has no such power when it seeks to amend the Constitution itself as article 368 does not give any such power: of The Parliament Act of 1911 (of England). The Article 368 vests the power to amend the Constitution not in the Parliament but in a different body, viz., a two-thirds majority of the two Houses of the Parliament. In article 368, the word Parliament which occurs in other articles is purposely avoided. There is a distinction between ordinary legislative power and power to amend the Constitution. This distinction is observed in America and the power to amend the Constitution is vested there also in a different body. Vide Willis, page 875, Coolly Vol. 1. page 4, Orfield, page 146. Article 379 speaks of the power of the provisional Parliament as a legislative body. The powers under article 368 cannot be and was not intended to be exercised by the provisional Parlia- ment under article 379. As it consists only of a Single Chamber the adaptations made in article 368 by the Constitu- tion (Removal of Difficulties) Order No. 2 are ultra vires. Article 392 gives power to the President to remove only such difficulties as arise in the working of the Constitution. It cannot be used to remove difficulties in the way of amending the Constitution that have been deliberately introduced by the Constitution. No difficulty could have been possibly experienced in the working of the Constitution on the very day the Constitution came into force. The Constitution could legally be amended only by the Parliament consisting of two Houses constituted under clause 2 of Part V. In any event, the impugned Act is void under article 13 (2) as contraven- ing the provisions relating to fundamental rights guaranteed by Part III. ’ Law ’ in article 13 (2) evidently includes all laws passed by the Parliament and must include laws passed under article 368 amending the Constitution: Constituent Assembly Debates, Vol. IX No. 37, pp. 1644, 1645, 1661, 1665.

S.M. Bose (M. L. Chaturvedi, with him)for the petitioner in Petition No. 375. The word “only” in article 368 refers to all that follows and article 368 does not contemplate amendment of a Bill after it has been introduced. The President’s Order is ultra rites his powers Under article 392.

There is no difficulty in working article 368 and there could be no occasion for the President to adapt 368 in the exercise of his powers under article 392.

S. Chaudhuri (M. L. Chaturvedi, with him) for the petitioner in Petition No. 368 adopted the arguments of P.R. Das and S.M. Bose.

S.K. Dhar (Nanakchand and M.L. Chaturvedi, with him) for the petitioner in Petition No- 387. Article 379 on which the provisional Parliament’s jurisdiction to amend the Constitu- tion is based not only empowers the said Parliament to exercise the powers of the Parliament but also imposes upon it the obligation to perform all the duties enjoined upon the Parliament by the Constitution. Hence Parliament cannot seek to abridge the rights of property of the citizens guaranteed by Part III. As the present Act contravenes the provisions of Part III, it is void under article 13 (2). In any event, the new articles 31A and 3lB curtail the powers of the Supreme Court under articles 32, 132 and 136 and those of the High Court under article 226, and as such, they required ratification under clause (b) of the proviso to article 368 and not having been ratified, they are void and unconstitutional. They are also ultra vires as they relate to land, a subject matter covered by List II (see item 18) over which the State Legislatures have exclusive power. Parliament cannot make a law validating a law which it had no power to enact.

N.P. Asthana (K. B. Asthana, with him) for the petition- ers in Petitions Nos. 481 to 484. Article 338 s, does not confer power on any body to amend the constitution. It simply lays down the procedure to be followed for amending the Constitution. In this view u article 379 does not come into operation at all. Under article 392 the President himself can alter the Constitution but he cannot authorise the provisional Parliament to do so.

S.P. Sinha (Nanak Chand, with him) for the petitioner in Petition No. 485. Article 13(2) is very wide in its scope and it invalidates all laws past, present and future which seek to curtail the rights conferred by Part II 1. It does not exempt laws passed under article 368 from its operation.

N.C. Chatterjee (with V.N. Swami for the petitioner in PetitiOn No. 287 and with Abdul Razzak Khan for the peti- tioner in Petition No. 318). Article 368 must be read subject to article 13(2). Articles 31A and 31IB are legis- lative in character and were enacted in the exercise of the law-making power of the Parliament and not in the exercise of any power to amend the Constitution and Parliament has no power to validate the laws as it had no power to enact them.

N.R. Raghavachari (V. N. Swami, with him) for the petitioner in Petition No. 166. The fundamental rights are supreme and article 13 (2) is a complete bar to any amend- ment of the rights cenferred by Part III.

N.S.. Bindra (Kahan Chand Chopra, with him) for the petitioner in Petition No. 319.

M.L. Chaturvedi for the petitioners in Petitions Nos. 374,376, 377, 379, 380, 381,384, 385, 386, 389, 393, 394 and 395.
Bishan Singh for the petitioner in Petition No. 418. Abdul Razzak Khan and P. 5. Safeer for the petitioner in Petition No. a17.

M.C. Setalvad, Attorney-General for India (with G.N. Joshi) for the Union of India, and (with Lal Narain Singh, G N. Joshi, A. Kuppuswami and

G. Durgabai) for the State of Bihar. The donee of the power under article 368 is Parliament. and The process of the passage of the Bill indicated in the said article is the same as that of ordinary legislative Bills. The arti- cle does not mean that the powers under article 368 are to be exercised by a fluctuating body of varying majority and not by Parliament. If the constituent authority and the legislative authority are two different entities the saving clauses in articles 2,3, 4 and 240, will be meaningless. Under article 379 provisional Parliament can exercise all the powers of Parliament; hence Provisional Parliament can act under article 368. “All the powers” in article 379 include power to amend the Constitution and there is no reason to restrict the import of these words by excluding amendment of the Constitution from their ambit. The words “perform all the duties” in that article do not in any manner cut down the power of Parliament under article 379 because article 13 (2) does not impose any duty. There is no conflict between exercising all the powers under article 379 and the prohibition in article 13 (2). No technical meaning should be given to the word “difficulty” in article 392 (1). The adaptation of article 368 is really an adapta- tion for the removal of difficulties. The adaptation is not of a permanent character. This shows that the adaptation is not an amendment and even if it is an amendment, it is so by way of adaptation. Article 13 (2) prohibits “laws” incon- sistent with fundamental rights. It cannot affect article 368 since the word “law” in article 13 (2) refers to ordi- nary legislative enactments and not constitution making. The argument that the Bill to amend the Constitution should be passed as introduced, without amendments, is fallacious. It cannot be said that the Bill referred to in article 368 has to be dealt with under a procedure different from that laid down for ordinary Bills in articles 107 and 108. Arti- cles 31-A and 31B are not legislative in character. The said articles do not affect the scope of articles 226 and 32, for the power of the Court under the said two articles remains unaltered. What has been done is to alter the content of fundamental rights.

P.L. Banerjee, Advocate-General of Uttar Pradesh (U. K. Misra and Gopalji Mehrotra, with him) for the State of Uttar Pradesh adopted the arguments of the un. Attorney-General and added that articles 31-A and 31-B st do not necessarily stand or fall together; even if 31-B goes, 31-A will remain.

T.L. Shevde, Advocate-General of Madhya Pradesh (T. P. Naik, with him)for the State of Madhya Pradesh adopted the arguments of the Attorney General. The Provisional Parlia- ment is competent to do all that the future Parliament can do. The adaptation under article 392 does not seek to amend article 368.

P.R. Dots, S.M. Bose S. Chaudhuri, N.C. Chatterjee, S.K. Dhar and S.P. Sinha replied. 1951. October 5.

The Judgment of the Court was delivered by

PATANJALI SASTRI J.–These petitions, which have been heard together, raise the common question whether the Constitution (First Amendment) Act, 1951, which was recently passed by the present provisional Parliament and purports to insert, inter alia, articles 31A and 3lB in the Constitution Of India is ultra vires and unconstitutional.

What led to that enactment is a matter of common knowl- edge. The political party now in power, commanding as it does a majority of votes in the several State legislatures as well as in Parliament, carried out certain measures of agrarian reform in Bihar, Uttar Pradesh and Madhya Pradesh by enacting legislation which may compendiously be referred to as Zemindary Abolition Acts. Certain zemindars, feeling themselves aggrieved, attacked the validity of those Acts in courts of law on the ground that they contravened the fundamental rights conferred on them by Part III of the Constitution. The High Court at Patna held that the Act passed in Bihar was unconstitutional while the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislation in Uttar Pradesh and, Madhya Pradesh respectively. Appeals from those decisions are pending in this Court. Petitions filed in this Court by some other zemindars seeking the determination of the same question are “also pending. At this stage, the Union Gov- ernment, with a view to put an end to all this litigation and to remedy what they considered to be certain defects brought to light in the working of the Constitution, brought forward a bill to amend the Constitution, which, after undergoing amendments in various particulars, was passed by the: requisite majority as the Constitution (First Amend- ment) Act, 1951, (hereinafter referred to as the Amendment Act). Swiftly reacting to this move of the Government, the zemindars have brought the present petitions under article 32 of the Constitution impugning the Amendment Act itself as unconstitutional and void.

The main arguments advanced in support of the petitions may be summarised as follows:

First, the power of amending the Constitution provided for under article 368 was conferred not on Parliament but on the two Houses of Parliament as a designated body and, therefore, the provisional Parliament was not competent to exercise that power under article 379.
Secondly, assuming that the power was conferred on Parliament, it did not devolve on the provisional Parliament by virtue of article 379 as the words “All the powers con- ferred by the provisions of this Constitution on Parliament” could refer only to such powers as are capable of being exercised by the provisional Parliament consisting of a single chamber. The power conferred by article 368 calls for the co-operative action of two Houses of Parliament and could be appropriately exercised only by the Parliament to be duly constituted under Ch. 2 of Part V.

Thirdly, the Constitution (Removal of Difficulties) Order No. 2 made by the President on 26th January 1950, in so far as it purports to adapt article 368 by omitting “either House of” and “in each House” and substi- tuting “Parliament” for” that House”, is beyond the powers conferred on him by article 392, as “any difficulties” sought to be removed by adaptation under that article must be difficulties in the actual working of the Constitution during the transitional period whose removal is necessary for carrying on the Government. No such difficulty could possibly have been experienced on the very date of the commencement of the Constitution.

Fourthly, in any case article 368 is a complete code in itself and does not provide -for any amendment being made in the bill after it has been introduced in the House. The bill in the present case having been admittedly amended in sever- al particulars during its passage through the House, the Amendment Act cannot be said to have been passed in conform- ity with the procedure prescribed in article 368.

Fifthly, the Amendment Act, in so far as it purports to take away or abridge the rights conferred by Part III of the Constitution, falls within the prohibition of article 13 (2).

And lastly, as the newly inserted articles 31A and 3lB seek to make changes in articles 132 and 136 in Chapter IV of Part V and article 226 in Chapter V of Part VI, they require ratification under clause (b) of the proviso to article 368, and not having been so ratified, they are void and unconstitutional. They are also ultra vires as they relate to matters enumerated in List II, with respect to which the State legislatures and not Parliament have the power to make laws.

Before dealing with these points it will be convenient to set out here the material portions of articles 368, 379 and 392, on the true construction of which these arguments have largely turned.

368. An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President for his assent and upon such assent being given to the Bill, the Constitution shall stand amended in accordance with the terms of the Bill:

Provided that if such amendment seeks to make any change (a) articles 54, 55, 78,162 or 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States specified in Parts A and B of the First Schedule by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.

379. (1) Until both Houses of Parliament have been duly constituted and summoned. to meet for the first session under the provisions of this Constitution, the body func- tioning as the Constituent Assembly of the Dominion of India immediately ’before the commencement of this’ Constitution shall be the provisional Parliament and shall exercise all the powers and perform all the duties conferred by the provisions of this Constitution on Parliament.

392. (1) The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be speci- fied in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient:

Provided that no such order shall be made after the first meeting of Parliament duly constituted under Chapter II of Part V.

* * * *

On the ’first point, it was submitted that whenever the Constitution sought to confer a power upon Parliament, it specifically mentioned “Parliament” as the done of the power, as in articles 2, 3, 33, 34 and numerous other arti- cles, but it deliberately avoided the use of that expression in article 368. Realising that the Constitution, as the fundamental law of the country, should not be liable to frequent changes according to the whim of party majorities, the framers placed special difficulties in the way of amend- ing the Constitution and it was a part of that scheme to confer the power of amendment on a body other than the ordinary legislature, as was done by article 5 of the Ameri- can Federal Constitution. We are unable to take that view. Various methods of constitutional amendment have been adopt- ed in written constitutions, such as by referendum, by a special convention, by legislation under a special proce- dure, and so on. But, which of these methods the framers of the Indian Constitution have adopted must be ascertained from the relevant provisions of the Constitution itself without any leaning based on a priori grounds or the analogy of other constitutions in favour of one method in preference to another. We accordingly turn to the provisions dealing with constitutional amendments.

Now, the Constitution provides for three classes of amendments of its provisions. First, those that can be effected by a bare majority such as that required for the passing of any ordinary law. The amendments contemplated in articles 4, 169 and 240 fall within this class, and they are specifically excluded from the purview of article 368. Secondly, those that Can be effected by a special majority as laid down in article 368. All constitutional amendments other than those referred to above come within this category and must be effected by a majority of the total membership of each House as well as by a majority of not less than two thirds of the members of that House present and a voting; and thirdly, those that require, in addition to the special majority above-mentioned, ratification by resolutions passed by not less than one-half of the States specified in Parts A and B of ’the First Schedule. This class comprises amendments which seek to make any change in the provisions referred to in the proviso to article 368. It will be seen that the power of effecting the first class of amendments is explicitly conferred on “Parliament”, that is to say, the two Houses of Parliament and the President (article 79). This would lead one to suppose, in the absence of a clear indication to the contrary, that the power of effecting the other two classes of amendments has also been conferred on the same body, namely, Parliament, for, the requirement of a different majority, which is merely procedural, can by itself be no reason for entrusting the power to a different body. An examination of the language used in article 368 confirms that view.

In the first place, it is provided that the amendment must be initiated by the introduction of a “bill in either’ House of Parliament”, a familiar feature of parliamentary proce- dure (of. article 107(1) which says “A bill may originate in either House of Parliament”). Then, the bill must be “passed in each House”-just what Parliament does when it is called upon to exercise its normal legislative function [article 107(2)]; and finally, the bill thus passed must be “present- ed to the President”’ for his “assent”, again a parliamen- tary process through which every bill must pass before it can reach the statute-book (article 111). We thus find that each of the component units of Parliament is to play its allotted part in bringing about an amendment to the Consti- tution. We have already seen that Parliament effects amend- ments of the first class mentioned above by going through the same three-fold procedure but with a simple majority. The fact that a different majority in the same body is required for effecting the second and third categories of amendments cannot make the amending agency a different body. There is no force, therefore, in the suggestion that Parliament would have been referred to specifically if that body was intended to exercise the power. Having mentioned each House of Par- liament and the President separately and assigned to each its appropriate part in bringing about constitutional changes, the makers of the Constitution presumably did not think it necessary to refer to the collective designation of the three units.

Apart from the intrinsic indications in article 368 referred to above, a convincing argument is to be found in articles 2, 3, 4, 169 and 240. As already stated, under these articles power is given to “Parliament” to make laws by a bare majority to amend certain parts of the Constitu- tion; but in each case it is laid down that no such law should be deemed to be an amendment of the Constitution “for the purpose of article 368.” It would be quite unnecessary, and indeed inappropriate, to exclude these laws from the operation of article 368, which requires a. special majori- ty, if the power to amend under the latter article was not also given to Parliament.

Somewhat closely allied to the point discussed above is the objection based on the bill in the present case having been passed in an amended form, and not as originally intro- duced. It is not correct to say that article 368 is a “complete code” in respect of the procedure provided by it. There are gaps in the procedure as to how and after what notice a bill is to be introduced, how it is to be passed by each House and how the President’s assent is to be obtained. Evidently, the rules made by each House under article 118 for regulating its procedure and the conduct of its business were intended, so far as may be, to be applicable. There was some discussion at the. Bar as to whether the process of amending the Constitution was a legislative process. Peti- tioners’ counsel insisted that it was not, and that, there- fore, the “legislative procedure” prescribed in article 107, which specifically provides for a bill being passed with amendments, was not applicable to a bill for amending the Constitution under article 368. The argument was further supported by pointing out that if amendment of such a bill were permissible, it must be open to either House to propose and pass amendments, and in case the two Houses failed to agree, the whole ma- chinery of article 368 would be thrown out of gear, for the joint sitting of both Houses passing the bill by a simple majority provided for in article 108 in the case of ordinary bills would be inapplicable in view of the special majority required in article 368. The argument proceeds on a miscon- ception. Assuming that amendment of the Constitution is not legislation even where it is carried out by the ordinary legislature by passing a bill introduced for the purpose and that articles 107 to 111 cannot in terms apply when Parlia- ment is dealing with a bill under article 368, there is no obvious reason why Parliament should not adopt, on such occasions, its own normal procedure, so far as that proce- dure can be followed consistently with statutory require- ments. Repelling the contention that a Local Government Board conducting a statutory enquiry should have been guided by the procedure of a court of justice, Lord Haldane ob- served in Local Government Board v. Arlidge(1):

“Its (the Board’s) character is that of an organisation with executive functions. In this it resembles other great departments of the State. When, therefore, Parliament en- trusts it with judicial duties, Parliament must be taken, in the absence of any declaration to the contrary, to have intended to follow the procedure which is its own and is necessary if it is to be capable of doing its work effi- ciently.”

These observations have application here. Having pro- vided for the constitution of a Parliament and prescribed a certain procedure for the conduct of’ its ordinary legisla- tive business to be supplemented by rules made by each House (article 118), the makers of the Constitution must be taken to have intended Parliament to follow that procedure, so far as it may be applicable, consistently with the express provisions of article 368, when they entrusted to it the power of amending the Constitution,.

The argument that a power entrusted to a Parliament consisting two Houses cannot be exercised under article 379 by the provisional Parliament sitting as a single chamber overlooks the scheme of the constitutional provisions in regard to Parliament. These provisions envisage a Parlia- ment of two Houses functioning under the Constitution framed as they have been on that basis. But the framers were well’ aware that such a Parliament could not be constituted till after the first elections were held under the Constitution. It thus became necessary to make provision for the carrying on, in the meantime, of the work entrusted to Parliament under the Constitution. Accordingly, it was provided in article 379 that the Constituent Assembly should function as the provisional Parliament during the transitional’ period and exercise all the powers and perform all the duties conferred by the Constitution on Parliament. Article 379 should be viewed and interpreted in the wider perspective of this scheme and not in its isolated relation to article 368 alone. The petitioners’ argument that the reference in article 368 to “two Houses” makes that provision inapplica- ble to the provisional Parliament would equally apply to all the provisions of the Constitution in regard to Parliamen- tary action and, if accepted, would rob article 379 of its very purpose and meaning. It was precisely to obviate such an argument and to remove the difficulty on which it is rounded and other difficulties of a like nature in working the Constitution during the transitional period that the framers of the Constitution made the further provision in article 392 conferring a general power on the President to adapt the provisions of the’ Constitution by suitably modi- fying their terms.

This brings us to the construction of article 392.

It will be seen that the purpose for which an adaptation may be made under that article is widely expressed. It may be made for the purpose of removing “any difficulties”. The particularisation of one class of diffi- culties which follows is illustrative and cannot have the effect of circumscribing the scope of the preceding general words. It has been urged, however, that the condition precedent to the exercise of powers under article 392 is the existence of difficulties to be removed, that is to say, difficulties actually experienced in the working of the Constitution whose removal would be necessary for carrying on the Government, such as for instance, the difficulties connected with applying articles 112, 113, etc., in the transitional period. But, the argument proceeds, constitu- tional amendments cannot be said to be necessary during that period. Besides, amendment of the Constitution is a very serious thing, and hence, by providing that both Houses must deliberate and agree to the amendment proposed and pass the bill by a special majority, the Constitution has purposely placed difficulties in the way of amending its provisions. It would be fantastic to suppose that, after deliberately creating those difficulties, it has empowered the President to remove them by a stroke of his pen. We see no force in this line of argument. It is true enough to say that diffi- culties must exist before they can be removed by adaptation, but they can exist before an occasion for their removal actually arises. As already stated, difficulties are bound to arise in applying provisions, which, by their terms are applicable to a Parliament of two Houses. to the provisional Parliament sitting as a single chamber. Those difficulties, arising as they do out of the inappropriateness of the language of those provisions as applied to the provisional Parliament, have to be removed by modifying that language to fit in with the situation created by article 379. There is nothing in that article to suggest that the President should wait, before adapting a particular article, till an occasion actually arose for the provisional Parliament to exercise the power conferred by that article. Nor is there any question here of the President removing by his adaptation any of the difficulties which the Constitution has deliberately placed in the way of its amendment. The adaptation leaves the requirement of a special majority untouched. The passing of an amendment bill by both Houses is no more a special requirement of such a bill than it is of any ordinary law made by Parliament. We are, therefore, of opinion that the adaptation of article 368 by the Presi- dent was well within the powers conferred on him by article 892 and is valid and constitutional.

A more plausible argument was advanced in support of the contention that the Amendment Act, in so far as it purports to take away or abridge any of the fundamental rights, falls within the prohibition of article 13(2) which provides that “the State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall to the extent of the contravention be void.” The argument was put thus: “The State” includes Parliament (article 12)and “law” must in- clude a constitutional amendment. It was the deliberate intention of the framers of the Constitution, who realized the sanctity of the fundamental rights conferred by Part III, to make them immune from interference not only by ordinary laws passed by the legislatures in the country but also from constitutional amendments. It is not uncommon to find in written constitutions a declaration that certain fundamental rights conferred on the people should be “eter- nal and inviolate” as for instance article 11 of the Japa- nese Constitution. Article 5 of the American Federal Consti- tution provides that no amendment shall be made depriving any State without its consent “of its equal suffrage in the Senate.” The framers of the Indian Constitution had the American and the Japanese models before them, and they must be taken to have prohibited even constitutional amendments in derogation of fundamental rights by using aptly wide language in article 13 (2). The argument is attractive, but there are other important considerations which point to the opposite conclusion.

Although “law” must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in exercise of legislative power, and consti- tutional law, which is made in exercise of constituent power. Dicey defines constitutional law as including “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State.” It is thus mainly concerned with the creation of the three great organs of the State, the executive, the legislature and the judiciary, the distribution of governmental power among them and the definition of their mutual relation. No doubt our constitution-makers, following the American model, have incorporated certain fundamental rights in Part III and made them immune from interference by laws made by the State. We find it, however,difficult, in the absence of a clear indi- cation to the contrary, to suppose that they also intended to make those rights immune from constitutional amendment. We are inclined to think that they must have had in mind what is of more frequent occurrence, that is, invasion of the rights of the subjects by the legislative and the execu- tive organs of the State by means of laws and rules made in exercise of their legislative power and not the abridgement or nullification of such rights by alterations of the Con- stitution itself in exercise of sovereign constituent power. That power, though it has been entrusted to Parliament, has been so hedged about with restrictions that its exercise must be difficult and rare. On the other hand, the terms of article 36a are perfectly general and empower Parliament to amend the Constitution, without any exception whatever. Had it been intended to save the fundamental rights from the operation of that provision, it would have been perfectly easy to make that intention clear by adding a proviso to that effect. In short, we have here two articles each of which is widely phrased, but conflicts in its operation with the other. Harmonious construction requires that one should be read as controlled and qualified by the other. Having regard to the considerations adverted to above, we are of opinion that in the context of article 13 “law” must be taken to mean rules or regulations made in exercise of ordinary legislative power and not amendments to the Constitution made in exercise of constituent power, with the result that article 1:3(2) does not affect amendments made under article 368

It only remains to deal with the objections particularly directed against the newly inserted articles 31A and :3lB. One of these objections is based on the absence of ratifica- tion under article 368. It was said that, before these articles were inserted by the Amending Act, the High Courts had the power under article 226 of the Constitution to issue appropriate writs declaring the Zemindari Abolition Acts unconstitutional as contravening fundamental rights, and this Court could entertain appeals from the orders of the High Courts under article 132 or article 136. As a matter of fact, some High Courts had. exercised such powers and this Court had entertained appeals. The new articles, however, deprive the High Courts as well as this Court of the power of declaring the said Acts unconstitutional, and thereby seek to make changes in Ch. 4 of Part V and Ch. 5 of Part VI. It was therefore submitted that the newly inserted articles required ratification under the proviso to article 368.

The argument proceeds on a misconception. These arti- cles so far as they are material here, run thus :–

31A. Saving of laws providing for acquisition of es- tates, etc.–(1) Notwithstanding anything in the foregoing provisions of this part, no law providing for the acquisi- tion by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights shall be deemed to be void on the ground that it is incon- sistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part :–

* * * *

31B. Validation of certain Acts and Regulations.Without prejudice to the generality of the provisions contained in article :31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.

It will be seen that these articles do not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of article 13 read with other relevant articles in Part III, while article 3lB purports to validate certain specified Acts and-Regula- tions already passed, which, but for such a provision, would be liable to be impugned under article 13. It is not cor- rect to say that the powers of the High Court under article 226 to issue writs “for the enforcement of any of the rights conferred by Part III” or of this Court under articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before: only a certain class of case has been excluded from the purview of Part II/and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases.

The other objection that it was beyond the power of Parliament to enact the new articles is equally untenable. It was said that they related tO land which was covered by item 18 of List II of the Seventh Schedule and that the State legislatures alone had the power to legislate with respect to that matter. The answer is that, as has been stated, articles a IA and 3lB really seek to save a certain class of laws and certain specified laws already passed from the combined operation of article 13 read with other rele- vant articles of Part III. The new articles being thus essential- ly amendments of the Constitution, Parliament alone had the power of enacting them. That the laws thus saved relate to matters covered by List II does not in any way affect the position. It was said that Parliament could not validate a law which it had no power to enact. The proposition holds good where the validity of the impugned provision turns on whether the subject-matter falls within or without the jurisdiction of the legislature which passed it. But to make a law which contravenes the constitution constitution- ally valid is a matter of constitutional amendment, and as such it falls within the exclusive power of Parliament. The question whether the latter part of article 31B is too widely expressed was not argued before us and we express no opinion upon it.

The petitions fail and are dismissed with costs.

Petitions dismissed.

Agent for the Petitioners in Petitions Nos. 871, 372, 382, 383, 388 and 392: I. N. Shroff.

Agent for the Petitioners in Petitions Nos. 287, 374 to 381 393, 394, 395: Rajinder Narain.

Agent for the Petitioners in Petitions Nos. 387, 418, 481 to 485, 384, 385, 386 and 389: S.S. Sukla.

Agent for the Petitioners in Petition No. 166: M.S.K. Sastri.

Agent for the Petitioners in Petition Nos. 817 and 319: R.S. Narula.

Agent for the Petitioner in Petition No. 318: Ganpat Rai.

Agent for the respondents: P. A. Mehta. 15

The post Sri Sankari Prasad Singh Deo Vs. Union of India and State of Bihar(and Other Cases). appeared first on B&B Associates LLP.

]]> https://bnblegal.com/landmark/sri-sankari-prasad-singh-deo-vs-union-of-india-and-state-of-biharand-other-cases/feed/ 0 I.R. Coelho (Dead)by Lrs. Vs The State of Tamil Nadu https://bnblegal.com/landmark/i-r-coelho-deadby-lrs-vs-the-state-of-tamil-nadu/ https://bnblegal.com/landmark/i-r-coelho-deadby-lrs-vs-the-state-of-tamil-nadu/#respond Tue, 17 Nov 2020 08:37:32 +0000 https://bnblegal.com/?post_type=landmark&p=257829 IN SUPREME COURT OF INDIA CASE NO.: Appeal (civil) 1344-45 of 1976 I.R.Coelho (Dead) By LRs …PETITIONER vs State of Tamil Nadu & Ors. …RESPONDENT DATE OF JUDGMENT: 11/01/2007 BENCH:Y.K.SABHARWAL CJI & ASHOK BHAN & ARIJIT PASAYAT & BISHESHWAR P.SINGH & S.H.KAPADIA & C.K.THAKKER & P.K.I.BALASUBRAMANYAN & ALTAMAS KABIR & D.K.JAIN J U D G […]

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]]> IN SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 1344-45 of 1976

I.R.Coelho (Dead) By LRs …PETITIONER
vs
State of Tamil Nadu & Ors. …RESPONDENT

DATE OF JUDGMENT: 11/01/2007

BENCH:Y.K.SABHARWAL CJI & ASHOK BHAN & ARIJIT PASAYAT & BISHESHWAR P.SINGH & S.H.KAPADIA & C.K.THAKKER & P.K.I.BALASUBRAMANYAN & ALTAMAS KABIR & D.K.JAIN

J U D G M E N T

With

[WP (C) Nos.242 of 1988, 751 of 1990,
CA Nos.6045 & 6046 of 2002,
WP (C) No.408/03, SLP (C) Nos.14182,
14245, 14248, 14249, 26879, 14946, 14947, 26880,
26881, 14949, 26882, 14950, 26883, 14965, 26884,
14993, 15020, 26885, 15022, 15029, 14940 & 26886 of 2004,
WP (C) Nos.454, 473 & 259 of 1994,
WP (C) No.238 of 1995 and WP (C) No.35 of 1996]

DELIVERED BY: Y.K.SABHARWAL,CJI

Y.K. Sabharwal, CJI.

In these matters we are confronted with a very important yet not very easy task of determining the nature and character of protection provided by Article 31-B of the Constitution of India, 1950 (for short, the ’Constitution’) to the laws added to the Ninth Schedule by amendments made after 24th April, 1973. The relevance of this date is for the reason that on this date judgment in His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC 225] was pronounced propounding the doctrine of Basic Structure of the Constitution to test the validity of constitutional amendments.

Re : Order of Reference

The order of reference made more than seven years ago by a Constitution Bench of Five Judges is reported in I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu [(1999) 7 SCC 580] (14.9.1999) . The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act), insofar as it vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by this Court in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu [(1972) 2 SCC 133] because this was not found to be a measure of agrarian reform protected by Article 31-A of the Constitution. Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck down by the Calcutta High Court as being arbitrary and, therefore, unconstitutional and the special leave petition filed against the judgment by the State of West Bengal was dismissed. By the Constitution (Thirty-fourth Amendment) Act, the Janmam Act, in its entirety, was inserted in the Ninth Schedule. By the Constitution (Sixty-sixth Amendment) Act, the West Bengal Land Holding Revenue Act, 1979, in its entirety, was inserted in the Ninth Schedule. These insertions were the subject matter of challenge before a Five Judge Bench. The contention urged before the Constitution Bench was that the statutes, inclusive of the portions thereof which had been struck down, could not have been validly inserted in the Ninth Schedule. In the referral order, the Constitution Bench observed that, according to Waman Rao & Ors. v. Union of India & Ors. [(1981) 2 SCC 362], amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule was amended from time to time by inclusion of various Acts, regulations therein were open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of Parliament since they damage the basic or essential features of the Constitution or its basic structure. The decision in Minerva Mills Ltd. & Ors. v. Union of India & Ors. [(1980) 3 SCC 625)], Maharao Sahib Shri Bhim Singhji v. Union of India & Ors. [(1981) 1 SCC 166] were also noted and it was observed that the judgment in Waman Rao needs to be reconsidered by a larger Bench so that the apparent inconsistencies therein are reconciled and it is made clear whether an Act or regulation which, or a part of which, is or has been found by this Court to be violative of one or more of the fundamental rights conferred by Articles 14, 19 and 31 can be included in the Ninth Schedule or whether it is only a constitutional amendment amending the Ninth Schedule which damages or destroys the basic structure of the Constitution that can be struck down. While referring these matters for decision to a larger Bench, it was observed that preferably the matters be placed before a Bench of nine Judges. This is how these matters have been placed before us.

Broad Question

The fundamental question is whether on and after 24th April, 1973 when basic structures doctrine was propounded, it is permissible for the Parliament under Article 31B to immunize legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court. Development of the Law First, we may consider, in brief, the factual background of framing of the Constitution and notice the developments that have taken place almost since inception in regard to interpretation of some of Articles of the Constitution. The Constitution was framed after an in depth study of manifold challenges and problems including that of poverty, illiteracy, long years of deprivation, inequalities based on caste, creed, sex and religion. The independence struggle and intellectual debates in the Constituent Assembly show the value and importance of freedoms and rights guaranteed by Part III and State’s welfare obligations in Part-IV. The Constitutions of various countries including that of United States of America and Canada were examined and after extensive deliberations and discussions the Constitution was framed. The Fundamental Rights Chapter was incorporated providing in detail the positive and negative rights. It provided for the protection of various rights and freedoms. For enforcement of these rights, unlike Constitutions of most of the other countries, the Supreme Court was vested with original jurisdiction as contained in Article 32. The High Court of Patna in Kameshwar v. State of Bihar [AIR 1951 Patna 91] held that a Bihar legislation relating to land reforms was unconstitutional while the High Court of Allahabad and Nagpur upheld the validity of the corresponding legislative measures passed in those States. The parties aggrieved had filed appeals before the Supreme Court. At the same time, certain Zamindars had also approached the Supreme Court under Article 32 of the Constitution. It was, at this stage, that Parliament amended the Constitution by adding Articles 31-A and 31-B to assist the process of legislation to bring about agrarian reforms and confer on such legislative measures immunity from possible attack on the ground that they contravene the fundamental rights of the citizen. Article 31-B was not part of the original Constitution. It was inserted in the Constitution by the Constitution (First Amendment) Act, 1951. The same amendment added after Eighth Schedule a new Ninth Schedule containing thirteen items, all relating to land reform laws, immunizing these laws from challenge on the ground of contravention of Article 13 of the Constitution. Article 13, inter alia, provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention thereof shall, to the extent of the contravention, be void.

Articles 31A and 31B read as under :

“31A. Saving of laws providing for acquisition of estates, etc. [(1) Notwithstanding anything contained in article 13, no law providing for

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of
any such rights, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers,
managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 :

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent :

Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

(2) In this article,

(a) the expression “estate”, shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include

(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;

(ii) any land held under ryotwary settlement;

(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;

(b) the expression “rights”, in relation to an estate, shall include any rights vesting in a proprietor, sub- proprietor, under-proprietor, tenure- holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.

31B. Validation of certain Acts and Regulations. Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.”

The Constitutional validity of the First Amendment was upheld in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar [(1952) SCR 89].

The main object of the amendment was to fully secure the constitutional validity of Zamindari Abolition Laws in general and certain specified Acts in particular and save those provisions from the dilatory litigation which resulted in holding up the implementation of the social reform measures affecting large number of people. Upholding the validity of the amendment, it was held in Sankari Prasad that Article 13(2) does not affect amendments to the Constitution made under Article 368 because such amendments are made in the exercise of constituent power. The Constitution Bench held that to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament.

The Constitutional validity of the Acts added to the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964 was challenged in petitions filed under Article 32 of the Constitution. Upholding the constitutional amendment and repelling the challenge in Sajjan Singh v. State of Rajasthan [(1965) 1 SCR 933] the law declared in Sankari Prasad was reiterated. It was noted that Articles 31A and 31B were added to the Constitution realizing that State legislative measures adopted by certain States for giving effect to the policy of agrarian reforms have to face serious challenge in the courts of law on the ground that they contravene the fundamental rights guaranteed to the citizen by Part III. The Court observed that the genesis of the amendment made by adding Articles 31A and 31B is to assist the State Legislatures to give effect to the economic policy to bring about much needed agrarian reforms. It noted that if pith and substance test is to apply to the amendment made, it would be clear that the Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfillment of the socio-economic policy viz. a policy in which the party in power believes. The Court further noted that the impugned act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. It noted that the object of the Act was to amend the relevant Articles in Part III which confer Fundamental Rights on citizens and as such it falls under the substantive part of Article 368 and does not attract the provision of clause (b) of that proviso. The Court, however, noted, that if the effect of the amendment made in the Fundamental Rights on Article 226 is direct and not incidental and if in significant order, different considerations may perhaps arise. Justice Hidayattulah, and Justice J.R. Mudholkar, concurred with the opinion of Chief Justice Gajendragadkar upholding the amendment but, at the same time, expressed reservations about the effect of possible future amendments on Fundamental Rights and basic structure of the Constitution. Justice Mudholkar questioned that “It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of the Article 368?”In I.C. Golak Nath & Ors. v. State of Punjab & Anr. [(1967) 2 SCR 762] a Bench of 11 Judges considered the correctness of the view that had been taken in Sankari Prasad and Sajjan Singh (supra). By majority of six to five, these decisions were overruled. It was held that the constitutional amendment is ’law’ within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. It was declared that the Parliament will have no power from the date of the decision (27th February, 1967) to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein. Soon after Golak Nath’s case, the Constitution (24th Amendment) Act, 1971, the Constitution (25th Amendment) Act, Act, 1971, the Constitution (26th Amendment) Act, 1971 and the Constitution (29th Amendment) Act, 1972 were passed. By Constitution (24th Amendment) Act, 1971, Article 13 was amended and after clause (3), the following clause was inserted as Article 13(4) :

“13(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.”Article 368 was also amended and in Article 368(1) the words “in exercise of its constituent powers” were inserted. The Constitution (25th Amendment) Act, 1971 amended the provision of Article 31 dealing with compensation for acquiring or acquisition of properties for public purposes so that only the amount fixed by law need to be given and this amount could not be challenged in court on the ground that it was not adequate or in cash. Further, after Article 31B of the Constitution, Article 31C was inserted, namely : “31C. Saving of laws giving effect to certain directive principles. Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy : Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.”

The Constitution (26th Amendment) Act, 1971 omitted from Constitution Articles 291 (Privy Purses) and Article 362 (rights and privileges of Rulers of Indian States) and inserted Article 363A after Article 363 providing that recognition granted to Rulers of Indian States shall cease and privy purses be abolished.

The Constitution (29th Amendment) Act, 1972 amended the Ninth Schedule to the Constitution inserting therein two Kerala Amendment Acts in furtherance of land reforms after Entry 64, namely, Entry 65 Kerala Land Reforms Amendment Act, 1969 (Kerala Act 35 of 1969); and Entry 66 Kerala Land Reforms Amendment Act, 1971 (Kerala Act 35 of 1971). These amendments were challenged in Kesavananda Bharati’s case. The decision in Kesavananda Bharati’s case was rendered on 24th April, 1973 by a 13 Judges Bench and by majority of seven to six Golak Nath’s case was overruled. The majority opinion held that Article 368 did not enable the Parliament to alter the basic structure or framework of the Constitution. The Constitution (24th Amendment) Act, 1971 was held to be valid. Further, the first part of Article 31C was also held to be valid. However, the second part of Article 31C that “no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” was declared unconstitutional. The Constitution 29th Amendment was held valid. The validity of the 26th Amendment was left to be determined by a Constitution Bench of five Judges.

The majority opinion did not accept the unlimited power of the Parliament to amend the Constitution and instead held that Article 368 has implied limitations. Article 368 does not enable the Parliament to alter the basic structure or framework of the Constitution.

Another important development took place in June, 1975, when the Allahabad High Court set aside the election of the then Prime Minister Mrs. Indira Gandhi to the fifth Lok Sabha on the ground of alleged corrupt practices. Pending appeal against the High Court judgment before the Supreme Court, the Constitution (39th Amendment) Act, 1975 was passed. Clause (4) of the amendment inserted Article 329A after Article 329. Sub-clauses (4) and (5) of Article 329A read as under :

“(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

(5) Any appeal or cross appeal against any such order of any court as is referred to in Clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of Clause (4).” Clause (5) of the Amendment Act inserted after Entry 86, Entries 87 to 124 in the Ninth Schedule. Many of the Entries inserted were unconnected with land reforms.

In Smt. Indira Nehru Gandhi v. Raj Narain [1975 Supp. (1) SCC 1] the aforesaid clauses were struck down by holding them to be violative of the basic structure of the Constitution.

About two weeks before the Constitution Bench rendered decision in Indira Gandhi’s case, internal emergency was proclaimed in the country. During the emergency from 26th June, 1975 to March, 1977, Article 19 of the Constitution stood suspended by virtue of Article 358 and Articles 14 and 21 by virtue of Article 359. During internal emergency, Parliament passed Constitution (40th Amendment) Act, 1976. By clause (3) of the said amendment, in the Ninth Schedule, after Entry 124, Entries 125 to 188 were inserted. Many of these entries were unrelated to land reforms.

Article 368 was amended by the Constitution (42nd Amendment) Act, 1976. It, inter alia, inserted by Section 55 of the Amendment Act, in Article 368, after clause (3), the following clauses (4) and (5) :

“368(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”

After the end of internal emergency, the Constitution (44th Amendment) Act, 1978 was passed. Section 2, inter alia, omitted sub-clauses (f) of Article 19 with the result the right to property ceased to be a fundamental right and it became only legal right by insertion of Article 300A in the Constitution.

Articles 14, 19 and 21 became enforceable after the end of emergency. The Parliament also took steps to protect fundamental rights that had been infringed during emergency. The Maintenance of Internal Security Act, 1971 and the Prevention of Publication of Objectionable Matter Act, 1976 which had been placed in the Ninth Schedule were repealed.

The Constitution (44th Amendment) Act also amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the emergency, rights conferred by Articles 20 and 21 could not be suspended. During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521]. The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions.

The fundamental rights received enlarged judicial interpretation in the post-emergency period. Article 21 which was given strict textual meaning in A.K Gopalan v. The State of Madras [1950 SCR 88] interpreting the words “according to procedure established by law” to mean only enacted law, received enlarged interpretation in Menaka Gandhi v. Union of India [(1978) 1 SCC 248]. A.K. Gopalan was no longer good law. In Menaka Gandhi a Bench of Seven Judges held that the procedure established by law in Article 21 had to be reasonable and not violative of Article 14 and also that fundamental rights guaranteed by Part III were distinct and mutually exclusive rights.

In Minerva Mills case (supra), the Court struck down clauses (4) and (5) and Article 368 finding that they violated the basic structure of the Constitution.

The next decision to be noted is that of Waman Rao (supra). The developments that had taken place post- Kesavananda Bharati’s case have been noticed in this decision.

In Bhim Singhji (supra), challenge was made to the validity of Urban Land (Ceiling and Regulation) Act, 1976 which had been inserted in the Ninth Schedule after Kesavananda Bharati’s case. The Constitution Bench unanimously held that Section 27(1) which prohibited disposal of property within the ceiling limit was violative of Articles 14 and 19(1)(f) of Part III. When the said Act was enforced in February 1976, Article 19(1)(f) was part of fundamental rights chapter and as already noted it was omitted therefrom only in 1978 and made instead only a legal right under Article 300A.

It was held in L. Chandra Kumar v. Union of India & Ors. [(1997) 3 SCC 261] that power of judicial review is an integral and essential feature of the Constitution constituting the basic part, the jurisdiction so conferred on the High Courts and the Supreme Court is a part of inviolable basic structure of Constitution of India.

Constitutional Amendment of Ninth Schedule

It would be convenient to note at one place, various constitutional amendments which added/omitted various Acts/provisions in Ninth Schedule from Item No.1 to 284. It is as under :

“Amendment Acts/Provisions added
1st Amendment (1951)
1-13
4th Amendment (1955)
14-20
17th Amendment (1964)
21-64
29th Amendment (1971)
65-66
34th Amendment (1974)
67-86
39th Amendment (1975)
87-124
40th Amendment (1976)
125-188
47th Amendment (1984)
189-202
66th Amendment (1990)
203-257
76th Amendment (1994)
257A
78th Amendment (1995)
258-284
Omission

In 1978 item 92 (Internal Security Act) was repealed by Parliamentary Act.

In 1977 item 130 (Prevention of Publication of Objectionable Matter) was repealed.

In 1978 the 44th amendment omitted items 87 (The Representation of People Act), 92 and 130.” Many additions are unrelated to land reforms.

The question is as to the scope of challenge to Ninth Schedule laws after 24th April, 1973 Article 32 The significance of jurisdiction conferred on this Court by Article 32 is described by Dr. B.R. Ambedkar as follows “most important Article without which this Constitution would be nullity”Further, it has been described as “the very soul of the Constitution and the very heart of it”. Reference may also be made to the opinion of Chief Justice Patanjali Sastri in State of Madras v. V.G. Row [1952 SCR 597] to the following effect :

“This is especially true as regards the “fundamental rights” as to which the Supreme Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.”

The jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic structure of the Constitution of India and no act of Parliament can abrogate it or take it away except by way of impermissible erosion of fundamental principles of the constitutional scheme are settled propositions of Indian jurisprudence [see Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India and Ors.[(1981) 1 SCC 568], State of Rajasthan v. Union of India & Ors. [(1977) 3 SCC 592], M. Krishna Swami v. Union of India & Ors. [(1992) 4 SCC 605], Daryao & Ors. v. The State of U.P. & Ors. [(1962) 1 SCR 574] and L. Chandra Kumar (supra). In S.R. Bommai & Ors. v. Union of India & Ors. [(1994) 3 SCC 1] it was reiterated that the judicial review is a basic feature of the Constitution and that the power of judicial review is a constituent power that cannot be abrogated by judicial process of interpretation. It is a cardinal principle of our Constitution that no one can claim to be the sole judge of the power given under the Constitution and that its actions are within the confines of the powers given by the Constitution.

It is the duty of this Court to uphold the constitutional values and enforce constitutional limitations as the ultimate interpreter of the Constitution.

Principles of Construction

The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law.

The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of constitutionalism underpins the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes.

Common Law Constitutionalism

The protection of fundamental constitutional rights through the common law is main feature of common law constitutionalism. According to Dr. Amartya Sen, the justification for protecting fundamental rights is not on the assumption that they are higher rights, but that protection is the best way to promote a just and tolerant society.

According to Lord Steyn, judiciary is the best institution to protect fundamental rights, given its independent nature and also because it involves interpretation based on the assessment of values besides textual interpretation. It enables application of the principles of justice and law.

Under the controlled Constitution, the principles of checks and balances have an important role to play. Even in England where Parliament is sovereign, Lord Steyn has observed that in certain circumstances, Courts may be forced to modify the principle of parliamentary sovereignty, for example, in cases where judicial review is sought to be abolished. By this the judiciary is protecting a limited form of constitutionalism, ensuring that their institutional role in the Government is maintained.

Principles of Constitutionality

There is a difference between Parliamentary and constitutional sovereignty. Our Constitution is framed by a Constituent Assembly which was not the Parliament. It is in the exercise of law making power by the Constituent Assembly that we have a controlled Constitution. Articles 14, 19, 21 represent the foundational values which form the basis of the rule of law. These are the principles of constitutionality which form the basis of judicial review apart from the rule of law and separation of powers. If in future, judicial review was to be abolished by a constituent amendment, as Lord Steyn says, the principle of parliamentary sovereignty even in England would require a relook. This is how law has developed in England over the years. It is in such cases that doctrine of basic structure as propounded in Kesavananda Bharati’s case has to apply. Granville Austin has been extensively quoted and relied on in Minerva Mills. Chief Justice Chandrachud observed that to destroy the guarantees given by Part III in order to purportedly achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure.

Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as “transcendental”, “inalienable” and “primordial”. They constitute the ark of the Constitution. (Kesavananda Bharati P.991, P.999). The learned Chief Justice held that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution. It is to be traced for a deep understanding of the scheme of the Indian Constitution. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Part III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy the essential element of the basic structure of the Constitution. [Emphasis supplied] (Para 57). Further observes the learned Chief Justice, that the matters have to be decided not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach. We must not miss the wood for the trees. A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. The observations made in the context of Article 31C have equal and full force for deciding the questions in these matters. Again the observations made in Para 70 are very relevant for our purposes. It has been observed that if by a Constitutional Amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonably in public interest, the basic framework of the Constitution may remain unimpaired. But if the protection of those Articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a ’parchment in a glass case’ to be viewed as a matter of historical curiosity. These observations are very apt for deciding the extent and scope of judicial review in cases wherein entire Part III, including Articles 14, 19, 20, 21 and 32, stand excluded without any yardstick.

The developments made in the field of interpretation and expansion of judicial review shall have to be kept in view while deciding the applicability of the basic structure doctrine to find out whether there has been violation of any fundamental right, the extent of violation, does it destroy the balance or it maintains the reasonable balance. The observations of Justice Bhagwati in Minerva Mills case show how clause (4) of Article 368 would result in enlarging the amending power of the Parliament contrary to dictum in Kesavananda Bharati’s case. The learned Judge has said in Paragraph 85 that : “So long as clause (4) stands, an amendment of the Constitution though unconstitutional and void as transgressing the limitation on the amending power of Parliament as laid down in Kesavananda Bharati’s case, would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would, from a practical point of view, become non-existent and it would not be incorrect to say that, covertly and indirectly, by the exclusion of judicial review, the amending power of Parliament would stand enlarged, contrary to the decision of this Court in Kesavananda Bharati case. This would undoubtedly damage the basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers.”

In Minerva Mills while striking down the enlargement of Article 31C through 42nd Amendemnt which had replaced the words “of or any of the principles laid down in Part IV” with “the principles specified in clause (b) or clause (c) and Article 39”, Justice Chandrachud said :
“Section 4 of the Constitution (42nd Amendment) Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution.”

In Indira Gandhi’s case, for the first time the challenge to the constitutional amendment was not in respect of the rights to property or social welfare, the challenge was with reference to an electoral law. Analysing this decision, H.M. Seervai in Constitutional Law of India (Fourth Edition) says that “the judgment in the election case break new ground, which has important effects on Kesavananda Bharati’s case itself (Para 30.18). Further the author says that “No one can now write on the amending power, without taking into account the effect of the Election case”. (Para 30.19). The author then goes on to clarify the meaning of certain concepts ’constituent power’, ’Rigid’ (controlled), or ’flexible’ (uncontrolled) constitution, ’primary power’, and ’derivative power’. The distinction is drawn by the author between making of a Constitution by a Constituent Assembly which was not subject to restraints by any external authority as a plenary law making power and a power to amend the Constitution, a derivative powerderived from the Constitution and subject to the limitations imposed by the Constitution. No provision of the Constitution framed in exercise of plenary law making power can be ultra vires because there is no touch-stone outside the Constitution by which the validity of provision of the Constitution can be adjudged. The power for amendment cannot be equated with such power of framing the Constitution. The amending power has to be within the Constitution and not outside it. For determining whether a particular feature of the Constitution is part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance (Chief Justice Chandrachud in Indira Gandhi’s case).

The fundamentalness of fundamental rights has thus to be examined having regard to the enlightened point of view as a result of development of fundamental rights over the years. It is, therefore, imperative to understand the nature of guarantees under fundamental rights as understood in the years that immediately followed after the Constitution was enforced when fundamental rights were viewed by this Court as distinct and separate rights. In early years, the scope of the guarantee provided by these rights was considered to be very narrow. Individuals could only claim limited protection against the State. This position has changed since long. Over the years, the jurisprudence and development around fundamental rights has made it clear that they are not limited, narrow rights but provide a broad check against the violations or excesses by the State authorities. The fundamental rights have in fact proved to be the most significant constitutional control on the Government, particularly legislative power.

This transition from a set of independent, narrow rights to broad checks on state power is demonstrated by a series of cases that have been decided by this Court. In The State of Bombay v. Bhanji Munji & Anr. [(1955) 1 SCR 777] relying on the ratio of Gopalan it was held that Article 31 was independent of Article 19(1)(f). However, it was in Rustom Cavasjee Cooper v. Union of India [(1970) 3 SCR 530] (popularly known as Bank Nationalization case) the view point of Gopalan was seriously disapproved. While rendering this decision, the focus of the Court was on the actual impairment caused by the law, rather than the literal validity of the law. This view was reflective of the decision taken in the case of Sakal Papers (P) Ltd. & Ors. v. The Union of India [(1962) 3 SCR 842] where the court was faced with the validity of certain legislative measures regarding the control of newspapers and whether it amounted to infringement of Article 19(1)(a). While examining this question the Court stated that the actual effect of the law on the right guaranteed must be taken into account. This ratio was applied in Bank Nationalization case. The Court examined the relation between Article 19(1)(f) and Article 13 and held that they were not mutually exclusive. The ratio of Gopalan was not approved. Views taken in Bank Nationalization case has been reiterated in number of cases (see Sambhu Nath Sarkar v. The State of West Bengal & Ors. [(1974) 1 SCR 1], Haradhan Saha & Anr. v. The State of West Bengal & Ors. [(1975) 1 SCR 778] and Khudiram Das v. The State of West Bengal & Ors. [(1975) 2 SCR 832] and finally the landmark judgment in the case of Maneka Gandhi (supra). Relying upon Cooper’s case it was said that Article 19(1) and 21 are not mutually exclusive.

The Court observed in Maneka Gandhi’s case:

“The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ’personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R. C. Cooper’s case, Shambhu Nath Sarkar’s case and Haradhan Saha’s case. Now, if a law depriving a person of ’’personal liberty’ and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given, situation, ex hypothesi it must also’ be liable to be tested with reference to Article 14. This was in fact not disputed by the learned Attorney General and indeed he could not do so in view of the clear and categorical statement made by Mukherjea, J., in A. K. Gopalan’s case that Article 21 “presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it “relates to and does not infringe any of the fundamental rights which the Constitution provides for”, including Article 14. This Court also applied Article 14 in two of its earlier decisions, namely, The State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284 and Kathi Raning Rawat v. The State of Saurashtra [1952] S.C.R. 435]”
[emphasis supplied]

The decision also stressed on the application of Article 14 to a law under Article 21 and stated that even principles of natural justice be incorporated in such a test. It was held: ” In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14″. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21″.
[emphasis supplied]

The above position was also reiterated by Krishna Iyer J., as follows :
“The Gopalan (supra) verdict, with the cocooning of Article 22 into a self contained code, has suffered supersession at the hands of R. C. Cooper(1) By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist and the proprietariat have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of sub- conscious forces in judicial noesis when the cyclorarmic review starts from Gopalan, moves on to In re : Kerala Education Bill and then on to All India Bank Employees Union, next to Sakal Newspapers, crowning in Cooper [1973] 3 S.C.R. 530 and followed by Bennet Coleman and Sambu Nath Sarkar. Be that as it may, the law is now settled, as I apprehend it, that no article in Part III is an island but part of a continent, and the conspectus of the whole part gives the directions and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.”
[emphasis supplied]

It is evident that it can no longer be contended that protection provided by fundamental rights comes in isolated pools. On the contrary, these rights together provide a comprehensive guarantee against excesses by state authorities. Thus post-Maneka Gandhi’s case it is clear that the development of fundamental rights has been such that it no longer involves the interpretation of rights as isolated protections which directly arise but they collectively form a comprehensive test against the arbitrary exercise of state power in any area that occurs as an inevitable consequence. The protection of fundamental rights has, therefore, been considerably widened. The approach in the interpretation of fundamental rights has been evidenced in a recent case M. Nagaraj & Ors. v. Union of India & Ors. [(2006) 8 SCC 212] in which the Court noted:

“This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any constitution by reason of the basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part-III of the Constitution does not confer fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a content. Every foundational value is put in Part-III as fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the Article in which the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. In Sakal Papers (P) Ltd. v. Union of India and Ors. [AIR 1967 SC 305] this Court has held that while considering the nature and content of fundamental rights, the Court must not be too astute to interpret the language in a literal sense so as to whittle them down. The Court must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow interpretation of a vital fundamental right in the Indian Constitution is the early decision of the Supreme Court in A.K. Gopalan v. State of Madras. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that ’procedure established by law’ means any procedure established by law made by the Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan and held in its landmark judgment in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression ’life’ in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part-III on the principle that certain unarticulated rights are implicit in the enumerated guarantees”.
[Emphasis supplied]

The abrogation or abridgment of the fundamental rights under Chapter III have, therefore, to be examined on broad interpretation, the narrow interpretation of fundamental rights chapter is a thing of past. Interpretation of the Constitution has to be such as to enable the citizens to enjoy the rights guaranteed by Part III in the fullest measure. Seperation of Powers The separation of powers between Legislature, Executive and the Judiciary constitutes basic structure, has been found in Kesavananda Bharati’s case by the majority. Later, it was reiterated in Indira Gandhi’s case. A large number of judgments have reiterated that the separation of powers is one of the basic features of the Constitution.

In fact, it was settled centuries ago that for preservation of liberty and prevention of tyranny it is absolutely essential to vest separate powers in three different organs. In Federalist 47, 48, and 51 James Madison details how a separation of powers preserves liberty and prevents tyranny. In Federalist 47, Madison discusses Montesquieu’s treatment of the separation of powers in the Spirit of Laws (Boox XI, Ch. 6). There Montesquieu writes, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. . . Again, there is no liberty, if the judicial power be not separated from the legislative and executive.” Madison points out that Montesquieu did not feel that different branches could not have overlapping functions, but rather that the power of one department of government should not be entirely in the hands of another department of government. Alexander Hamilton in Federalist 78 remarks on the importance of the independence of the judiciary to preserve the separation of powers and the rights of the people:

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or

privileges would amount to nothing.” (434)

Montesquieu finds tyranny pervades when there is no separation of powers:

“There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

The Supreme Court has long held that the separation of powers is part of the basic structure of the Constitution. Even before the basic structure doctrine became part of Constitutional law, the importance of the separation of powers on our system of governance was recognized by this Court in Special Reference No.1 of 1964 [(1965) 1 SCR 413]. Contentions

In the light of aforesaid developments, the main thrust of the argument of the petitioners is that post-1973, it is impermissible to immunize Ninth Schedule laws from judicial review by making Part III inapplicable to such laws. Such a course, it is contended, is incompatible with the doctrine of basic structure. The existence of power to confer absolute immunity is not compatible with the implied limitation upon the power of amendment in Article 368, is the thrust of the contention. Further relying upon the clarification of Khanna, J, as given in Indira Gandhi’s case, in respect of his opinion in Kesavananda Bharati’s case, it is no longer correct to say that fundament rights are not included in the basic structure. Therefore, the contention proceeds that since fundamental rights form a part of basic structure and thus laws inserted into Ninth Schedule when tested on the ground of basic structure shall have to be examined on the fundamental rights test.

The key question, however, is whether the basic structure test would include judicial review of Ninth Schedule laws on the touchstone of fundamental rights. Thus, it is necessary to examine what exactly is the content of the basic structure test. According to the petitioners, the consequence of the evolution of the principles of basic structure is that Ninth Schedule laws cannot be conferred with constitutional immunity of the kind created by Article 31B. Assuming that such immunity can be conferred, its constitutional validity would have to be adjudged by applying the direct impact and effect test which means the form of an amendment is not relevant, its consequence would be determinative factor.

The power to make any law at will that transgresses Part III in its entirety would be incompatible with the basic structure of the Constitution. The consequence also is, learned counsel for the petitioners contended, to emasculate Article 32 (which is part of fundamental rights chapter) in its entirety if the rights themselves (including the principle of rule of law encapsulated in Article 14) are put out of the way, the remedy under Article 32 would be meaningless. In fact, by the exclusion of Part III, Article 32 would stand abrogated qua the Ninth Schedule laws. The contention is that the abrogation of Article 32 would be per se violative of the basic structure. It is also submitted that the constituent power under Article 368 does not include judicial power and that the power to establish judicial remedies which is compatible with the basic structure is qualitatively different from the power to exercise judicial power. The impact is that on the one hand the power under Article 32 is removed and, on the other hand, the said power is exercised by the legislature itself by declaring, in a way, Ninth Schedule laws as valid. On the other hand, the contention urged on behalf of the respondents is that the validity of Ninth Schedule legislations can only be tested on the touch-stone of basic structure doctrine as decided by majority in Kesavananda Bharati’s case which also upheld the Constitution 29th Amendment unconditionally and thus there can be no question of judicial review of such legislations on the ground of violation of fundamental rights chapter. The fundamental rights chapter, it is contended, stands excluded as a result of protective umbrella provided by Article 31B and, therefore, the challenge can only be based on the ground of basic structure doctrine and in addition, legislation can further be tested for (i) lack of legislative competence and (ii) violation of other constitutional provisions. This would also show, counsel for the respondents argued, that there is no exclusion of judicial review and consequently, there is no violation of the basic structure doctrine.

Further, it was contended that the constitutional device for retrospective validation of laws was well known and it is legally permissible to pass laws to remove the basis of the decisions of the Court and consequently, nullify the effect of the decision. It was submitted that Article 31B and the amendments by which legislations are added to the Ninth Schedule form such a device, which ’cure the defect’ of legislation.

The respondents contend that the point in issue is covered by the majority judgment in Kesavananda Bharati’s case. According to that view, Article 31B or the Ninth Schedule is a permissible constitutional device to provide a protective umbrella to Ninth Schedule laws. The distinction is sought to be drawn between the necessity for the judiciary in a written constitution and judicial review by the judiciary.

Whereas the existence of judiciary is part of the basic framework of the Constitution and cannot be abrogated in exercise of constituent power of the Parliament under Article 368, the power of judicial review of the judiciary can be curtailed over certain matters. The contention is that there is no judicial review in absolute terms and Article 31B only restricts that judicial review power. It is contended that after the doctrine of basic structure which came to be established in Kesavananda Bharati’s case, it is only that kind of judicial review whose elimination would destroy or damage the basic structure of the Constitution that is beyond the constituent power. However, in every case where the constituent power excludes judicial review, the basic structure of the Constitution is not abrogated. The question to be asked in each case is, does the particular exclusion alter the basic structure. Giving immunity of Part III to the Ninth Schedule laws from judicial review, does not abrogate judicial review from the Constitution. Judicial review remains with the court but with its exclusion over Ninth Schedule laws to which Part III ceases to apply. The effect of placing a law in Ninth Schedule is that it removes the fetter of Part III by virtue of Article 31B but that does not oust the court jurisdiction. It was further contended that Justice Khanna in Kesavananda Bharati’s case held that subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and will include within itself the power to add, alter or repeal various articles including taking away or abridging fundamental rights and that the power to amend the fundamental rights cannot be denied by describing them as natural rights. The contention is that the majority in Kesavananda Bharati’s case held that there is no embargo with regard to amending any of the fundamental rights in Part III subject to basic structure theory and, therefore, the petitioners are not right in the contention that in the said case the majority held that the fundamental rights form part of the basic structure and cannot be amended. The further contention is that if fundamental rights can be amended, which is the effect of Kesavananda Bharati’s case overruling Golak Nath’s case, then fundamental rights cannot be said to be part of basic structure unless the nature of the amendment is such which destroys the nature and character of the Constitution. It is contended that the test for judicially reviewing the Ninth Schedule laws cannot be on the basis of mere infringement of the rights guaranteed under Part III of the Constitution. The correct test is whether such laws damage or destroy that part of fundamental rights which form part of the basic structure. Thus, it is contended that judicial review of Ninth Schedule laws is not completely barred. The only area where such laws get immunity is from the infraction of rights guaranteed under Part III of the Constitution.

To begin with, we find it difficult to accept the broad proposition urged by the petitioners that laws that have been found by the courts to be violative of Part III of the Constitution cannot be protected by placing the same in the Ninth Schedule by use of device of Article 31B read with Article 368 of the Constitution. In Kesavananda Bharti’s case, the majority opinion upheld the validity of the Kerala Act which had been set aside in Kunjukutty Sahib etc. etc. v. The State of Kerala & Anr. [(1972) 2 SCC 364] and the device used was that of the Ninth Schedule. After a law is placed in the Ninth Schedule, its validity has to be tested on the touchstone of basic structure doctrine. In State of Maharashtra & Ors. v. Man Singh Suraj Singh Padvi & Ors. [(1978) 1 SCC 615], a Seven Judge Constitution Bench, post-decision in Kesavananda Bharati’s case upheld Constitution (40th Amendment) Act, 1976 which was introduced when the appeal was pending in Supreme Court and thereby included the regulations in the Ninth Schedule. It was held that Article 31B and the Ninth Schedule cured the defect, if any, in the regulations as regards any unconstitutionality alleged on the ground of infringement of fundamental rights.

It is also contended that the power to pack up laws in the Ninth Schedule in absence of any indicia in Article 31B has been abused and that abuse is likely to continue. It is submitted that the Ninth Schedule which commenced with only 13 enactments has now a list of 284 enactments. The validity of Article 31B is not in question before us. Further, mere possibility of abuse is not a relevant test to determine the validity of a provision. The people, through the Constitution, have vested the power to make laws in their representatives through Parliament in the same manner in which they have entrusted the responsibility to adjudge, interpret and construe law and the Constitution including its limitation in the judiciary. We, therefore, cannot make any assumption about
the alleged abuse of the power. Validity of 31B

There was some controversy on the question whether validity of Article 31B was under challenge or not in Kesavananda Bharati. On this aspect, Chief Justice Chandrachud has to say this in Waman Rao :

In Sajjan Singh v. State of Rajasthan [(1965) 1 SCR 933], the Court refused to reconsider the decision in Sankari Prasad (supra), with the result that the validity of the 1st Amendment remained unshaken. In Golaknath, it was held by a majority of 6 : 5 that the power to amend the Constitution was not located in Article 368. The inevitable result of this holding should have been the striking down of all constitutional amendments since, according to the view of the majority, Parliament had no power to amend the Constitution in pursuance of Article 368. But the Court resorted to the doctrine of prospective overruling and held that the constitutional amendments which were already made would be left undisturbed and that its decision will govern the future amendments only. As a result, the 1st Amendment by which Articles 31A and 31B were introduced remained inviolate. It is trite knowledge that Golaknath was overruled in Kesavananda Bharati (supra) in which it was held unanimously that the power to amend the Constitution was to be found in Article 368 of the Constitution. The petitioners produced before us a copy of the Civil Misc. Petition which was filed in Kesavananda Bharati, (supra) by which the reliefs originally asked for were modified. It appears thereform that what was challenged in that case was the 24th, 25th and the 29th Amendments to the Constitution. The validity of the 1st Amendment was not questioned Khanna J., however, held-while dealing with the validity of the unamended Article 31C that the validity of Article 31A was upheld in Sankari Prasad, (supra) that its validity could not be any longer questioned because of the principle of stare decisis and that the ground on which the validity of Article 31A was sustained will be available equally for sustaining the validity of the first part of Article 31C (page 744) (SCC p.812, para 1518).

We have examined various opinions in Kesavananda Bharati’s case but are unable to accept the contention that Article 31B read with the Ninth Schedule was held to be constitutionally valid in that case. The validity thereof was not in question. The constitutional amendments under challenge in Kesavananda Bharati’s case were examined assuming the constitutional validity of Article 31B. Its validity was not in issue in that case. Be that as it may, we will assume Article 31B as valid. The validity of the 1st Amendment inserting in the Constitution, Article 31B is not in challenge before us. Point in issue The real crux of the problem is as to the extent and nature of immunity that Article 31B can validly provide. To decide this intricate issue, it is first necessary to examine in some detail the judgment in Kesavananda Bharati’s case, particularly with reference to 29th Amendment. Kesavananda Bharati’s case

The contention urged on behalf of the respondents that all the Judges, except Chief Justice Sikri, in Kesavananda Bharati’s case held that 29th Amendment was valid and applied Jeejeebhoy’s case, is not based on correct ratio of Kesavananda Bharati’s case. Six learned Judges (Ray, Phalekar, Mathew, Beg, Dwivedi and Chandrachud, JJ) who upheld the validity of 29th Amendment did not subscribe to basic structure doctrine. The other six learned Judges (Chief Justice Sikri, Shelat, Grover, Hegde, Mukherjee and Reddy JJ) upheld the 29th Amendment subject to it passing the test of basic structure doctrine. The 13th learned Judge (Khanna, J), though subscribed to basic structure doctrine, upheld the 29th Amendment agreeing with six learned Judges who did not subscribe to the basic structure doctrine. Therefore, it would not be correct to assume that all Judges or Judges in majority on the issue of basic structure doctrine upheld the validity of 29th Amendment unconditionally or were alive to the consequences of basic structure doctrine on 29th Amendment. Six learned Judges otherwise forming the majority, held 29th amendment valid only if the legislation added to the Ninth Schedule did not violate the basic structure of the Constitution. The remaining six who are in minority in Kesavananda Bharati’s case, insofar as it relates to laying down the doctrine of basic structure, held 29th Amendment unconditionally valid.

While laying the foundation of basic structure doctrine to test the amending power of the Constitution, Justice Khanna opined that the fundamental rights could be amended abrogated or abridged so long as the basic structure of the Constitution is not destroyed but at the same time, upheld the 29th Amendment as unconditionally valid. Thus, it cannot be inferred from the conclusion of the seven judges upholding unconditionally the validity of 29th Amendment that the majority opinion held fundamental rights chapter as not part of the basic structure doctrine. The six Judges which held 29th Amendment unconditionally valid did not subscribe to the doctrine of basic structure. The other six held 29th Amendment valid subject to it passing the test of basic structure doctrine.

Justice Khanna upheld the 29th Amendment in the following terms:

“We may now deal with the Constitution (Twenty ninth Amendment) Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I
have been able to find no infirmity in the Constitution (Twenty ninth Amendment) Act.”

In his final conclusions, with respect to the Twenty-ninth Amendment, Khanna, J. held as follows:

“(xv) The Constitution (Twenty-ninth Amendment) Act does not suffer from any infirmity and as such is valid.”

Thus, while upholding the Twenty-ninth amendment, there was no mention of the test that is to be applied to the legislations inserted in the Ninth Schedule. The implication that the Respondents seek to draw from the above is that this amounts to an unconditional upholding of the legislations in the Ninth Schedule. They have also relied on observations by Ray CJ., as quoted below, in Indira Gandhi (supra). In that case, Ray CJ. observed:

“The Constitution 29th Amendment Act was considered by this Court in Kesavananda Bharati’s case. The 29th Amendment Act inserted in the Ninth Schedule to the Constitution Entries 65 and 66 being the Kerala Land Reforms Act, 1969 and the Kerala Land Reforms Act, 1971. This Court unanimously upheld the validity of the 29th Amendment Act . The view of seven Judges in Kesavananda Bharati’s case is that Article 31-B is a constitutional device to place the specified statutes in the Schedule beyond any attack that these infringe Part III of the Constitution. The 29th Amendment is affirmed in Kesavananda Bharati’s case (supra) by majority of seven against six Judges. .Second, the majority view in Kesavananda Bharati’s case is that the 29th Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights.”
[Emphasis supplied]

The respondents have particularly relied on aforesaid highlighted portions.

On the issue of how 29th Amendment in Kesavananda Bharati case was decided, in Minerva Mills, Bhagwati, J. has said thus :

“The validity of the Twenty-ninth Amendment Act was challenged in Kesavananda Bharati case but by a majority consisting of Khanna, J. and the six learned Judges led by Ray, J. (as he then was) it was held to be valid. Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Sankari Prasad case and Sajian Singh’s case and were accepted as valid in Golak Nath case and the Twenty Ninth Amendment Act was also held valid in Kesavananda Bharati case, though not on the application of the basic structure test, and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 31A with the possible exception of only four Acts referred to above, I do not think, we would be justified in re-opening the question of validity of these constitutional amendments and hence we hold them to be valid. But, all constitutional amendments made after the decision in Kesavananda Bharati case would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation on its amending power.”

To us, it seems that the position is correctly reflected in the aforesaid observations of Bhagwati, J. and with respect we feel that Ray CJ. is not correct in the conclusion that 29th Amendment was unanimously upheld. Since the majority which propounded the basic structure doctrine did not unconditionally uphold the validity of 29th Amendment and six learned judges forming majority left that to be decided by a smaller Bench and upheld its validity subject to it passing basic structure doctrine, the factum of validity of 29th mendment in Kesavananda Bharati case is not conclusive of matters under consideration before us.

In order to understand the view of Khanna J. in Kesavananda Bharati (supra), it is important to take into account his later clarification. In Indira Gandhi (supra), Khanna J. made it clear that he never opined that fundamental rights were outside the purview of basic structure and observed as follows:

“There was a controversy during the course of arguments on the point as to whether I have laid down in my judgment in Kesavananda Bharati’s case that fundamental rights are not a part of the basic structure of the Constitution. As this controversy cropped up a number of times, it seems apposite that before I conclude I should deal with the contention advanced by learned Solicitor General that according to my judgment in that case no fundamental right is part of the basic structure of the Constitution. I find it difficult to read anything in that judgment to justify such a conclusion.

What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contained in Part III of the Constitution .

The above observations clearly militate against the contention that according to my judgment fundamental rights are not a part of the basic structure of the Constitution. I also dealt with the matter at length to show that the right to property was not a part of the basic structure of the Constitution. This would have been wholly unnecessary if none of the fundamental rights was a part of the basic structure of the Constitution”.

Thus, after his aforesaid clarification, it is not possible to read the decision of Khanna J. in Kesavananda Bharati so as to exclude fundamental rights from the purview of the basic structure. The import of this observation is significant in the light of the amendment that he earlier upheld. It is true that if the fundamental rights were never a part of the basic structure, it would be consistent with an unconditional upholding of the Twenty-ninth Amendment, since its impact on the fundamental rights guarantee would be rendered irrelevant. However, having held that some of the fundamental rights are a part of the basic structure, any amendment having an impact on fundamental rights would necessarily have to be examined in that light. Thus, the fact that Khanna J. held that some of the fundamental rights were a part of the basic structure has a significant impact on his decision regarding the Twenty-ninth amendment and the validity of the Twenty-ninth amendment must necessarily be viewed in that light. His clarification demonstrates that he was not of the opinion that all the fundamental rights were not part of the basic structure and the inevitable conclusion is that the Twenty-ninth amendment even if treated as unconditionally valid is of no consequence on the point in issue in view of peculiar position as to majority abovenoted.

Such an analysis is supported by Seervai, in his book Constitutional Law of India (4th edition, Volume III), as follows:

“Although in his judgment in the Election Case, Khanna J. clarified his judgment in Kesavananda’s Case, that clarification raised a serious problem of its own. The problem was: in view of the clarification, was Khanna J. right in holding that Article 31-B and Sch. IX were unconconditionally valid? Could he do so after he had held that the basic structure of the Constitution could not be amended? As we have seen, that problem was solved in Minerva Mills Case by holding that Acts inserted in Sch. IX after 25 April, 1973 were not unconditionally valid, but would have to stand the test of fundamental rights. (Para 30.48, page 3138)

But while the clarification in the Election Case simplifies one problem the scope of amending power it raises complicated problems of its own. Was Khanna J. right in holding Art. 31-B (and Sch. 9) unconditionally valid? An answer to these questions requires an analysis of the function of Art. 31-B and Sch. 9 .Taking Art. 31-B and Sch. 9 first, their effect is to confer validity on laws already enacted which would be void for violating one of more of the fundamental rights conferred by Part III (fundamental rights) .

But if the power of amendment is limited by the doctrine of basic structure, a grave problem immediately arises .The thing to note is that though such Acts do not become a part of the Constitution, by being included in Sch.9 [footnote: This is clear from the provision of Article 31-B that such laws are subject to the power of any competent legislature to repeal or amend them that no State legislature has the power to repeal or amend the Constitution, nor has Parliament such a power outside Article 368, except where such power is conferred by a few articles.] they owe their validity to the exercise of the amending power. Can Acts, which destroy the secular character of the State, be given validity and be permitted to destroy a basic structure as a result of the exercise of the amending power?

That, in the last analysis is the real problem; and it is submitted that if the doctrine of the basic structure is accepted, there can be only one answer. If Parliament, exercising constituent power cannot enact an amendment destroying the secular character of the State, neither can Parliament, exercising its constituent power, permit the Parliament or the State Legislatures to produce the same result by protecting laws, enacted in the exercise of legislative power, which produce the same result.

To hold otherwise would be to abandon the doctrine of basic structure in respect of fundamental rights for every part of that basic structure can be destroyed by first enacting laws which produce that effect, and then protecting them by inclusion in Sch. 9. Such a result is consistent with the view that some fundamental rights are a part of the basic structure, as Khanna J. said in his clarification. (Para30.65, pages 3150- 3151) In other words, the validity of the 25th and 29th Amendments raised the question of applying the law laid down as to the scope of the amending power when determining the validity of the 24th Amendment. If that law was correctly laid down, it did not become incorrect by being wrongly applied. Therefore the conflict between Khanna J.’s views on the amending power and on the unconditional validity of the 29th Amendment is resolved by saying that he laid down the scope of the amending power correctly but misapplied that law in holding Art. 31-B and Sch. 9 unconditionally valid . Consistently with his view that some fundamental rights were part of the basic structure, he ought to have joined the 6 other judges in holding that the 29th Amendment was valid, but Acts included in Sch. 9 would have to be scrutinized by the Constitution bench to see whether they destroyed or damaged any part of the basic structure of the Constitution, and if they did, such laws would not be protected. (Para30.65, page 3151)”

The decision in Kesavananda Bharati (supra) regarding the Twenty-ninth amendment is restricted to that particular amendment and no principle flows therefrom. We are unable to accept the contention urged on behalf of the respondents that in Waman Rao’s case Justice Chandrachud and in Minerva Mills case, Justice Bhagwati have not considered the binding effect of majority judgments in Kesavananda Bharati’s case. In these decisions, the development of law post-Kesavananda Bharati’s case has been considered. The conclusion has rightly been reached, also having regard to the decision in Indira Gandhi’s case that post-Kesavananda Bharati’s case or after 24th April, 1973, the Ninth Schedule laws will not have the full protection. The doctrine of basic structure was involved in Kesavananda Bharati’s case but its effect, impact and working was examined in Indira Gandhi’s case, Waman Rao’s case and Minerva Mills case. To say that these judgments have not considered the binding effect of the majority judgment in Kesavananda Bharati’s case is not based on a correct reading of Kesavananda Bharati.

On the issue of equality, we do not find any contradiction or inconsistency in the views expressed by Justice Chandrachud in Indira Gandhi’s case, by Justice Krishna Iyer in Bhim Singh’s case and Justice Bhagwati in Minerva Mills case. All these judgments show that violation in individual case has to be examined to find out whether violation of equality amounts to destruction of the basic structure of the Constitution. Next, we examine the extent of immunity that is provided by Article 31B. The principle that constitutional amendments which violate the basic structure doctrine are liable to be struck down will also apply to amendments made to add laws in the Ninth Schedule is the view expressed by Chief Justice Sikri. Substantially, similar separate opinions were expressed by Shelat, Grover, Hegde, Mukherjea and Reddy, JJ. In the four different opinions six learned judges came to substantially the same conclusion. These judges read an implied limitation on the power of the Parliament to amend the Constitution. Justice Khanna also opined that there was implied limitation in the shape of the basic structure doctrine that limits the power of Parliament to amend the Constitution but the learned Judge upheld 29th Amendment and did not say, like remaining six Judges, that the Twenty-Ninth Amendment will have to be examined by a smaller Constitution Bench to find out whether the said amendment violated the basic structure theory or not. This gave rise to the argument that fundamental rights chapter is not part of basic structure. Justice Khanna, however, does not so say in Kesavananda Bharati’s case. Therefore, Kesavananda Bharati’s case cannot be said to have held that fundamental rights chapter is not part of basic structure. Justice Khanna, while considering Twenty-Ninth amendment, had obviously in view the laws that had been placed in the Ninth Schedule by the said amendment related to the agrarian reforms. Justice Khanna did not want to elevate the right to property under Article 19(1)(f) to the level and status of basic structure or basic frame-work of the Constitution, that explains the ratio of Kesavananda Bharati’s case. Further, doubt, if any, as to the opinion of Justice Khanna stood resolved on the clarification given in Indira Gandhi’s case, by the learned Judge that in Kesavananda Bharati’s case, he never held that fundamental rights are not a part of the basic structure or framework of the Constitution.

The rights and freedoms created by the fundamental rights chapter can be taken away or destroyed by amendment of the relevant Article, but subject to limitation of the doctrine of basic structure. True, it may reduce the efficacy of Article 31B but that is inevitable in view of the progress the laws have made post-Kesavananda Bharati’s case which has limited the power of the Parliament to amend the Constitution under Article 368 of the Constitution by making it subject to the doctrine of basic structure.

To decide the correctness of the rival submissions, the first aspect to be borne in mind is that each exercise of the amending power inserting laws into Ninth Schedule entails a complete removal of the fundamental rights chapter vis-‘-vis the laws that are added in the Ninth Schedule. Secondly, insertion in Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated. The consequence of insertion is that it nullifies entire Part III of the Constitution. There is no constitutional control on such nullification. It means an unlimited power to totally nullify Part III in so far as Ninth Schedule legislations are concerned. The supremacy of the Constitution mandates all constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ, viz. the judiciary. While examining the validity of Article 31C in Kesavananda Bharati’s case, it was held that the vesting of power of the exclusion of judicial review in a legislature including a State legislature, strikes at the basic structure of the Constitution. It is on this ground that second part of Article 31C was held to be beyond the permissible limits of power of amendment of the Constitution under Article 368.

If the doctrine of basic structure provides a touchstone to test the amending power or its exercise, there can be no dobt and it has to be so accepted that Part III of the Constitution has a key role to play in the application of the said doctrine.

Regarding the status and stature in respect of fundamental rights in Constitutional scheme, it is to be remembered that Fundamental Rights are those rights of citizens or those negative obligations of the State which do not permit encroachment on individual liberties. The State is to deny no one equality before the law. The object of the Fundamental Rights is to foster the social revolution by creating a society egalitarian to the extent that all citizens are to be equally free from coercion or restriction by the State. By enacting Fundamental Rights and Directive Principles which are negative and positive obligations of the States, the Constituent Assembly made it the responsibility of the Government to adopt a middle path between individual liberty and public good. Fundamental Rights and Directive Principles have to be balanced. That balance can be tilted in favour of the public good. The balance, however, cannot be overturned by completely overriding individual liberty. This balance is an essential feature of the Constitution.

Fundamental rights enshrined in Part III were added to the Constitution as a check on the State power, particularly the legislative power. Through Article 13, it is provided that the State cannot make any laws that are contrary to Part III. The framers of the Constitution have built a wall around certain parts of fundamental rights, which have to remain forever, limiting ability of majority to intrude upon them. That wall is the ’Basic Structure’ doctrine. Under Article 32, which is also part of Part III, Supreme Court has been vested with the power to ensure compliance of Part III. The responsibility to judge the constitutionality of all laws is that of judiciary. Thus, when power under Article 31B is exercised, the legislations made completely immune from Part III results in a direct way out, of the check of Part III, including that of Article 32. It cannot be said that the same Constitution that provides for a check on legislative power, will decide whether such a check is necessary or not. It would be a negation of the Constitution. In Waman Rao’s case, while discussing the application of basic structure doctrine to the first amendment, it was observed that the measure of the permissibility of an amendment of a pleading is how far it is consistent with the original; you cannot by an amendment transform the original into opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law. Indeed, if Article 31B only provided restricted immunity and it seems that original intent was only to protect a limited number of laws, it would have been only exception to Part III and the basis for the initial upholding of the provision.

However, the unchecked and rampant exercise of this power, the number having gone from 13 to 284, shows that it is no longer a mere exception. The absence of guidelines for exercise of such power means the absence of constitutional control which results in destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise.

It is also contended for the respondents that Article 31A excludes judicial review of certain laws from the applications of Articles 14 and 19 and that Article 31A has been held to be not violative of the basic structure. The contention, therefore, is that exclusion of judicial review would not make the Ninth Schedule law invalid. We are not holding such law per se invalid but, examining the extent of the power which the Legislature will come to possess. Article 31A does not exclude uncatalogued number of laws from challenge on the basis of Part III. It provides for a standard by which laws stand excluded from Judicial Review. Likewise, Article 31C applies as a yardstick the criteria of sub-clauses (b) and (c) of Article 39 which refers to equitable distribution of resources.

The fundamental rights have always enjoyed a special and privileged place in the Constitution. Economic growth and social equity are the two pillars of our Constitution which are linked to the rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part III constitute fundamentals of the Constitution like Article 21 read with Articles 14 and 15 which represent secularism etc. As held in Nagaraj, egalitarian equality exists in Article 14 read with Article 16(4) (4A) (4B) and, therefore, it is wrong to suggest that equity and justice finds place only in the Directive Principles.

The Parliament has power to amend the provisions of Part III so as to abridge or take away fundamental rights, but that power is subject to the limitation of basic structure doctrine. Whether the impact of such amendment results in violation of basic structure has to be examined with reference to each individual case. Take the example of freedom of Press which, though not separately and specifically guaranteed, has been read as part of Article 19(1)(a). If Article 19(1)(a) is sought to be amended so as to abrogate such right (which we hope will never be done), the acceptance of respondents contention would mean that such amendment would fall outside the judicial scrutiny when the law curtailing these rights is placed in the Ninth Schedule as a result of immunity granted by Article 31B. The impact of such an amendment shall have to be tested on the touchstone of rights and freedoms guaranteed by Part III of the Constitution. In a given case, even abridgement may destroy the real freedom of the Press and, thus, destructive of the basic structure. Take another example. The secular character of our Constitution is a matter of conclusion to be drawn from various Articles conferring fundamental rights; and if the secular character is not to be found in Part III, it cannot be found anywhere else in the Constitution because every fundamental right in Part III stands either for a principle or a matter of detail. Therefore, one has to take a synoptic view of the various Articles in Part III while judging the impact of the laws incorporated in the Ninth Schedule on the Articles in Part III. It is not necessary to multiply the illustrations.

After enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme.

Justice Khanna in Kesavananda Bharati’s case was considering the right to property and it is in that context it was said that no Article of the Constitution is immune from the amendatory process. We may recall what Justice Khanna said while dealing with the words “amendment of the Constitution”. His Lordship said that these words with all the wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. The opinion of Justice Khanna in Indira Gandhi clearly indicates that the view in Kesavananda Bharati’s case is that at least some fundamental rights do form part of basic structure of the Constitution. Detailed discussion in Kesavananda Bharati’s case to demonstrate that the right to property was not part of basic structure of the Constitution by itself shows that some of the fundamental rights are part of the basic structure of the Constitution. The placement of a right in the scheme of the Constitution, the impact of the fending law on that right, the effect of the exclusion of that right from judicial review, the abrogation of the principle on the essence of that right is an exercise which cannot be denied on the basis of fictional immunity under Article 31B.

In Indira Gandhi,s case, Justice Chandrachud posits that equality embodied in Article 14 is part of the basic structure of the Constitution and, therefore, cannot be abrogated by observing that the provisions impugned in that case are an outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our constitution.

Dealing with Articles 14, 19 and 21 in Minerva Mills case, it was said that these clearly form part of the basic structure of the Constitution and cannot be abrogated. It was observed that three Articles of our constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. These Articles stand on altogether different footing. Can it be said, after the evolution of the basic structure doctrine, that exclusion of these rights at Parliament’s will without any standard, cannot be subjected to judicial scrutiny as a result of the bar created by Article 31B? The obvious answer has to be in the negative. If some of the fundamental rights constitute a basic structure, it would not be open to immunise those legislations from full judicial scrutiny either on the ground that the fundamental rights are not part of the basic structure or on the ground that Part III provisions are not available as a result of immunity granted by Article 31B. It cannot be held that essence of the principle behind Article 14 is not part of the basic structure. In fact, essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense. The majority opinion in Kesavananda Bharati’s case clearly is that the principles behind fundamental rights are part of the basic structure of the Constitution. It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution. Rather these rights have been further defined and redefined through various trials having regard to various experiences and some attempts to invade and nullify these rights. The fundamental rights are deeply interconnected. Each supports and strengthens the work of the others. The Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with it. This is the ratio of the decision in Indira Gandhi case.

The history of the emergence of modern democracy has also been the history of securing basic rights for the people of other nations also. In the United States the Constitution was finally ratified only upon an understanding that a Bill of Rights would be immediately added guaranteeing certain basic freedoms to its citizens.

At about the same time when the Bill of Rights was being ratified in America, the French Revolution declared the Rights of Man to Europe. When the death of colonialism and the end of World War II birthed new nations across the globe, these states embraced rights as foundations
to their new constitutions. Similarly, the rapid increase in the creation of constitutions that coincided with the end of the Cold War has planted rights at the base of these documents.

Even countries that have long respected and upheld rights, but whose governance traditions did not include their constitutional affirmation have recently felt they could no longer leave their deep commitment to rights, left unstated. In 1998, the United Kingdom adopted the Human Rights Act which gave explicit affect to the European Convention on Human Rights. In Canada, the “Constitution Act of 1982” enshrined certain basic rights into their system of governance. Certain fundamental rights, and the principles that underlie them, are foundational not only to the Indian democracy, but democracies around the world. Throughout the world nations have declared that certain provisions or principles in their Constitutions are inviolable.

Our Constitution will almost certainly continue to be amended as India grows and changes. However, a democratic India will not grow out of the need for protecting the principles behind our fundamental rights.

Other countries having controlled constitution, like Germany, have embraced the idea that there is a basic structure to their Constitutions and in doing so have entrenched various rights as core constitutional commitments. India’s constitutional history has led us to include the essence of each of our fundamental rights in the basic structure of our Constitution.

The result of the aforesaid discussion is that since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have to be examined in each case.

We may also recall the observations made in Special Reference No.1/64 [(1965) 1 SCR 413] as follows : “…[W]hether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and there functions are normally confined to legislative functions, and the function and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country.”

We are of the view that while laws may be added to the Ninth Schedule, once Article 32 is triggered, these legislations must answer to the complete test of fundamental rights. Every insertion into the Ninth Schedule does not restrict Part III review, it completely excludes Part III at will. For this reason, every addition to the Ninth Schedule triggers Article 32 as part of the basic structure and is consequently subject to the review of the fundamental rights as they stand in Part III.

Extent of Judicial Review in the context of Amendments to the Ninth Schedule We are considering the question as to the extent of judicial review permissible in respect of Ninth Schedule laws in the light of the the basic structure theory propounded in Kesavananda Bharati’s case. In this connection, it is necessary to examine the nature of the constituent power exercised in amending a Constitution.

We have earlier noted that the power to amend cannot be equated with the power to frame the Constitution. This power has no limitations or constraints, it is primary power, a real plenary power. The latter power, however, is derived from the former. It has constraints of the document viz. Constitution which creates it. This derivative power can be exercised within the four corners of what has been conferred on the body constituted, namely, the Parliament. The question before us is not about power to amend Part III after 24th April, 1973. As per Kesavananda Bharati, power to amend exists in the Parliament but it is subject to the limitation of doctrine of basic structure. The fact of validation of laws based on exercise of blanket immunity eliminates Part III in entirety hence the ’rights test’ as part of the basic structure doctrine has to apply.

In Kesavananda Bharati’s case, the majority held that the power of amendment of the Constitution under Article 368 did not enable Parliament to alter the basic structure of the Constitution.

Kesavananda Bharati’s case laid down a principle as an axiom which was examined and worked out in Indira Gandhi’s case, Minerva Mills, Waman Rao and Bhim Singh.

As already stated, in Indira Gandhi’s case, for the first time, the constitutional amendment that was challenged did not relate to property right but related to free and fair election.

As is evident from what is stated above that the power of amending the Constitution is a species of law making power which is the genus. It is a different kind of law making power conferred by the Constitution. It is different from the power to frame the Constitution i.e. a plenary law making power as described by Seervai in Constitutional Law of India (4th Edn.).

The scope and content of the words ’constituent power’ expressly stated in the amended Article 368 came up for consideration in Indira Gandhi’s case. Article 329-A(4) was struck down because it crossed the implied limitation of amending power, that it made the controlled constitution uncontrolled, that it removed all limitations on the power to amend and that it sought to eliminate the golden triangle of Article 21 read with Articles 14 and 19. (See also Minerva Mills case).

It is Kesavananda Bharati’s case read with clarification of Justice Khanna in Indira Gandhi’s case which takes us one step forward, namely, that fundamental rights are interconnected and some of them form part of the basic structure as reflected in Article 15, Article 21 read with Article 14, Article 14 read with Article 16(4) (4A) (4B) etc. Bharti and Indira Gandhi’s cases have to be read together and if so read the position in law is that the basic structure as reflected in the above Articles provide a test to judge the validity of the amendment by which laws are included in the Ninth Schedule. Since power to amend the Constitution is not unlimited, if changes brought about by amendments destroy the identity of the Constitution, such amendments would be void. That is why when entire Part III is sought to be taken away by a constitutional amendment by the exercise of constituent power under Article 368 by adding the legislation in the Ninth Schedule, the question arises as to the extent of judicial scrutiny available to determine whether it alters the fundamentals of the Constitution. Secularism is one such fundamental, equality is the other, to give a few examples to illustrate the point. It would show that it is impermissible to destroy Article 14 and 15 or abrogate or en bloc eliminate these Fundamental Rights. To further illustrate the point, it may be noted that the Parliament can make additions in the three legislative lists, but cannot abrogate all the lists as it would abrogate the federal structure.

The question can be looked at from yet another angle also. Can the Parliament increase the amending power by amendment of Article 368 to confer on itself the unlimited power of amendment and destroy and damage the fundamentals of the Constitution? The answer is obvious. Article 368 does not vest such a power in the Parliament. It cannot lift all restrictions placed on the amending power or free the amending power from all its restrictions. This is the effect of the decision in Kesavananda Bharati’s case as a result of which secularism, separation of power, equality, etc. to cite a few examples would fall beyond the constituent power in the sense that the constituent power cannot abrogate these fundamentals of the Constitution. Without equality the rule of law, secularism etc. would fail. That is why Khanna, J. held that some of the Fundamental Rights like Article 15 form part of the basic structure.

If constituent power under Article 368, the other name for amending power, cannot be made unlimited, it follows that Article 31B cannot be so used as to confer unlimited power. Article 31B cannot go beyond the limited amending power contained in Article 368. The power to amend Ninth Schedule flows from Article 368. This power of amendment has to be compatible with the limits on the power of amendment. This limit came with the Kesavananda Bharati’s case. Therefore Article 31-B after 24th April, 1973 despite its wide language cannot confer unlimited or unregulated immunity.

To legislatively override entire Part III of the Constitution by invoking Article 31-B would not only make the Fundamental Rights overridden by Directive Principles but it would also defeat fundamentals such as secularism, separation of powers, equality and also the judicial review which are the basic feature of the Constitution and essential elements of rule of law and that too without any yardstick/standard being provided under Article 31-B. Further, it would be incorrect to assume that social content exist only in Directive Principles and not in the Fundamental Rights. Article 15 and 16 are facets of Article 14. Article 16(1) concerns formal equality which is the basis of the rule of law. At the same time, Article 16(4) refers to egalitarian equality. Similarly, the general right of equality under Article 14 has to be balanced with Article 15(4) when excessiveness is detected in grant of protective discrimination. Article 15(1) limits the rights of the State by providing that there shall be no discrimination on the grounds only of religion, race, caste, sex, etc. and yet it permits classification for certain classes, hence social content exists in Fundamental Rights as well. All these are relevant considerations to test the validity of the Ninth Schedule laws.

Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ.

Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.

Realising that it is necessary to secure the enforcement of the Fundamental Rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial Review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. It may be noted that the mere fact that equality which is a part of the basic structure can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure. Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure rule of law, separation of power the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure.

On behalf of the respondents, reliance has been placed on the decision of a nine Judge Constitution Bench in Attorney General for India & Ors. v. Amratlal Prajivandas & Ors. [(1994) 5 SCC 54] to submit that argument of a violation of Article 14 being equally violative of basic structure or Articles 19 and 21 representing the basic structure of the Constitution has been rejected. Para 20 referred to by learned counsel for the respondent reads as
under :

“Before entering upon discussion of the issues arising herein, it is necessary to make a few clarificatory observations. Though a challenge to the constitutional validity of 39th, 40th and 42nd Amendments to the Constitution was levelled in the writ petitions on the ground that the said Amendments – effected after the decision in Keshavananda Bharati v. State of Kerala [1973] Suppl. SCR 1 – infringe the basic structure of the Constitution, no serious attempt was made during the course of arguments to substantiate it. It was generally argued that Article 14 is one of the basic features of the Constitution and hence any constitutional amendment violative of Article 14 is equally violative of the basic structure. This simplistic argument overlooks the reason d’etre of Article 31B – at any rate, its continuance and relevance after Bharati – and of the 39th and 40th Amendments placing the said enactments in the IXth Schedule.

Acceptance of the petitioners’ argument would mean that in case of post-Bharati constitutional amendments placing Acts in the IXth Schedule, the protection of Article 31-B would not be available against Article 14. Indeed, it was suggested that Articles 21 and 19 also represent the basic features of the Constitution. If so, it would mean a further enervation of Article 31B. Be that as it may, in the absence of any effort to substantiate the said challenge, we do not wish to express any opinion on the constitutional validity of the said Amendments. We take them as they are, i.e., we assume them to be good and valid. We must also say that no effort has also been made by the counsel to establish in what manner the said Amendment Acts violate Article 14.”

It is evident from the aforenoted passage that the question of violation of Articles 14, 19 or 21 was not gone into. The bench did not express any opinion on those issues. No attempt was made to establish violation of these provisions. In Para 56, while summarizing the conclusion, the Bench did not express any opinion on the validity of 39th and 40th Amendment Acts to the Constitution of India placing COFEPOSA and SAFEMA in the Ninth Schedule. These Acts were assumed to be good and valid. No arguments were also addressed with respect to the validity of 42nd Amendment Act.

Every amendment to the Constitution whether it be in the form of amendment of any Article or amendment by insertion of an Act in the Ninth Schedule has to be tested by reference to the doctrine of basic structure which includes reference to Article 21 read with Article 14, Article 15 etc. As stated, laws included in the Ninth Schedule do not become part of the Constitution, they derive their validity on account of the exercise undertaken by the Parliament to include them in the Ninth Schedule. That exercise has to be tested every time it is undertaken. In respect of that exercise the principle of compatibility will come in. One has to see the effect of the impugned law on one hand and the exclusion of Part III in its entirety at the will of the Parliament.

In Waman Rao, it was accordingly rightly held that the Acts inserted in the Ninth Schedule after 24th April, 1973 would not receive the full protection.

Exclusion of Judicial Review compatible with the doctrine of basic structure concept of Judicial Review Judicial review is justified by combination of ’the principle of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review’ (Democracy through Law by Lord Styen, Page 131).

The role of the judiciary is to protect fundamental rights. A modern democracy is based on the twin principles of majority rule and the need to protect fundamental rights.

According to Lord Styen, it is job of the Judiciary to balance the principles ensuring that the Government on the basis of number does not override fundamental rights. Application of doctrine of basic structure In Kesavananda Bharati’s case, the discussion was on the amending power conferred by unamended Article 368 which did not use the words ’constituent power’. We have already noted difference between original power of framing the Constitution known as constituent power and the nature of constituent power vested in Parliament under Article 368. By addition of the words ’constituent power’ in Article 368, the amending body, namely, Parliament does not become the original Constituent Assembly. It remains a Parliament under a controlled Constitution. Even after the words ’constituent power’ are inserted in Article 368, the limitations of doctrine of basic structure would continue to apply to the Parliament. It is on this premise that clauses 4 and 5 inserted in Article 368 by 42nd Amendment were struck down in Minerva Mills case.

The relevance of Indira Gandhi’s case, Minerva Mills case and Waman Rao’s case lies in the fact that every improper enhancement of its own power by Parliament, be it clause 4 of Article 329-A or clause 4 and 5 of Article 368 or Section 4 of 42nd Amendment have been held to be incompatible with the doctrine of basic structure as they introduced new elements which altered the identity of the Constitution or deleted the existing elements from the Constitution by which the very core of the Constitution is discarded. They obliterated important elements like judicial review. They made Directive Principles en bloc a touchstone for obliteration of all the fundamental rights and provided for insertion of laws in the Ninth Schedule which had no nexus with agrarian reforms. It is in this context that we have to examine the power of immunity bearing in mind that after Kesavananda Bharati’s case, Article 368 is subject to implied limitation of basic structure.

The question examined in Waman Rao’s case was whether the device of Article 31-B could be used to immunize Ninth Schedule laws from judicial review by making the entire Part III inapplicable to such laws and whether such a power was incompatible with basic structure doctrine. The answer was in affirmative. It has been said that it is likely to make the controlled Constitution uncontrolled. It would render doctrine of basic structure redundant. It would remove the golden triangle of Article 21 read with Article 14 and Article 19 in its entirety for examining the validity of Ninth Schedule laws as it makes the entire Part III inapplicable at the will of the Parliament. This results in the change of the identify of the Constitution which brings about incompatibility not only with the doctrine of basic structure but also with the very existence of limited power of amending the Constitution. The extent of judicial review is to be examined having regard to these factors.

The object behind Article 31-B is to remove difficulties and not to obliterate Part III in its entirety or judicial review.

The doctrine of basic structure is propounded to save the basic features. Article 21 is the heart of the Constitution. It confers right to life as well as right to choose. When this triangle of Article 21 read with Article 14 and Article 19 is sought to be eliminated not only the ’essence of right’ test but also the ’rights test’ has to apply, particularly when Keshavananda Bharti and Indira Gandhi cases have expanded the scope of basic structure to cover even some of the Fundamental Rights.

The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution.

Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III.

There is also a difference between the ’rights test’ and the ’essence of right test’. Both form part of application of the basic structure doctrine. When in a controlled Constitution conferring limited power of amendment, an entire Chapter is made inapplicable, ’the essence of the right’ test as applied in M. Nagaraj’s case (supra) will have no applicability.

In such a situation, to judge the validity of the law, it is ’right test’ which is more appropriate. We may also note that in Minerva Mills and Indira Gandhi’s cases, elimination of Part III in its entirety was not in issue. We are considering the situation where entire equality code, freedom code and right to move court under Part III are all nullified by exercise of power to grant immunization at will by the Parliament which, in our view, is incompatible with the implied limitation of the power of the Parliament. In such a case, it is the rights test that is appropriate and is to be applied. In Indira Gandhi’s case it was held that for the correct interpretation, Article 368 requires a synoptic view of the Constitution between its various provisions which, at first sight, look disconnected. Regarding Articles 31-A and 31-C (validity whereof is not in question here) having been held to be valid despite denial of Article 14, it may be noted that these Articles have an indicia which is not there in Article 31-B.

Part III is amendable subject to basic structure doctrine. It is permissible for the Legislature to amend the Ninth Schedule and grant a law the protection in terms of Article 31B but subject to right of citizen to assail it on the enlarged judicial review concept. The Legislature cannot grant fictional immunities and exclude the examination of the Ninth Schedule law by the Court after the enunciation of the basic structure doctrine.

The constitutional amendments are subject to limitations and if the question of limitation is to be decided by the Parliament itself which enacts the impugned amendments and gives that law a complete immunity, it would disturb the checks and balances in the Constitution. The authority to enact law and decide the legality of the limitations cannot vest in one organ. The validity to the limitation on the rights in Part III can only be examined by another independent organ, namely, the judiciary.

The power to grant absolute immunity at will is not compatible with basic structure doctrine and, therefore, after 24th April, 1973 the laws included in the Ninth Schedule would not have absolute immunity. Thus, validity of such laws can be challenged on the touchstone of basic structure such as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles underlying these Articles.

It has to be borne in view that the fact that some Articles in Part III stand alone has been recognized even by the Parliament, for example, Articles 20 and 21. Article 359 provides for suspension of the enforcement of the rights conferred by Part III during emergencies. However, by Constitution (44th Amendment) Act, 1978, it has been provided that even during emergencies, the enforcement of the rights under Articles 20 and 21 cannot be suspended. This is the recognition given by the Parliament to the protections granted under Articles 20 and 21. No discussion or argument is needed for the conclusion that these rights are part of the basic structure or framework of the Constitution and, thus, immunity by suspending those rights by placing any law in the Ninth Schedule would not be countenanced. It would be an implied limitation on the constituent power of amendment under Article 368. Same would be the position in respect of the rights under Article 32, again, a part of the basic structure of the Constitution.

The doctrine of basic structure as a principle has now become an axiom. It is premised on the basis that invasion of certain freedoms needs to be justified. It is the invasion which attracts the basic structure doctrine. Certain freedoms may justifiably be interfered with. If freedom, for example, is interfered in cases relating to terrorism, it does not follow that the same test can be applied to all the offences. The point to be noted is that the application of a standard is an important exercise required to be undertaken by the Court in applying the basic structure doctrine and that has to be done by the Courts and not by prescribed authority under Article 368. The existence of the power of Parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III including power of judicial review under Article 32 is incompatible with the basic structure doctrine. Therefore, such an exercise if challenged, has to be tested on the touchstone of basic structure as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles thereunder.

The power to amend the Constitution is subject to aforesaid axiom. It is, thus, no more plenary in the absolute sense of the term. Prior to Kesavananda Bharati, the axiom was not there. Fictional validation based on the power of immunity exercised by the Parliament under Article 368 is not compatible with the basic structure doctrine and, therefore, the laws that are included in the Ninth Schedule have to be examined individually for determining whether the constitutional amendments by which they are put in the Ninth Schedule damage or destroy the basic structure of the Constitution. This Court being bound by all the provisions of the Constitution and also by the basic structure doctrine has necessarily to scrutinize the Ninth Schedule laws. It has to examine the terms of the statute, the nature of the rights involved, etc. to determine whether in effect and substance the statute violates the essential features of the Constitution. For so doing, it has to first find whether the Ninth Schedule law is violative of Part III. If on such examination, the answer is in the affirmative, the further examination to be undertaken is whether the violation found is destructive of the basic structure doctrine. If on such further examination the answer is again in affirmative, the result would be invalidation of the Ninth Schedule Law. Therefore, first the violation of rights of Part III is required to be determined, then its impact examined and if it shows that in effect and substance, it destroys the basic structure of the Constitution, the consequence of invalidation has to follow. Every time such amendment is challenged, to hark back to Kesavananda Bharati upholding the validity of Article 31B is a surest means of a drastic erosion of the fundamental rights conferred by Part III.

Article 31B gives validation based on fictional immunity.

In judging the validity of constitutional amendment we have to be guided by the impact test. The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights. Parliament is presumed to legislate compatibly with the fundamental rights and this is where Judicial Review comes in. The greater the invasion into essential freedoms, greater is the need for justification and determination by court whether invasion was necessary and if so to what extent. The degree of invasion is for the Court to decide. Compatibility is one of the species of Judicial Review which is premised on compatibility with rights regarded as fundamental. The power to grant immunity, at will, on fictional basis, without full judicial review, will nullify the entire basic structure doctrine. The golden triangle referred to above is the basic feature of the Constitution as it stands for equality and rule of law.

The result of aforesaid discussion is that the constitutional validity of the Ninth Schedule Laws on the touchstone of basic structure doctrine can be adjudged by applying the direct impact and effect test, i.e., rights test, which means the form of an amendment is not the relevant factor, but the consequence thereof would be determinative factor.

In conclusion, we hold that :

(i) A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic
structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth
Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.

(ii) The majority judgment in Kesavananda Bharati’s case read with Indira Gandhi’s case, requires the validity of each new constitutional amendment to be judged on its
own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.

(iii) All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by
inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To
put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the “rights test” and the “essence of the right” test taking the synoptic view of the Articles in Part III as held in Indira Gandhi’s case. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such a law(s) will not get the protection of the Ninth Schedule.

This is our answer to the question referred to us vide Order dated 14th September, 1999 in I.R. Coelho v.
State of Tamil Nadu [(1999) 7 SCC 580].

(v) If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge
such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as
indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder.

(vi) Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge.
We answer the reference in the above terms and direct
that the petitions/appeals be now placed for hearing before a

Three Judge Bench for decision in accordance with the principles laid down herein.

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]]> https://bnblegal.com/landmark/i-r-coelho-deadby-lrs-vs-the-state-of-tamil-nadu/feed/ 0 Vineeta Sharma Vs. Rakesh Sharma & Ors. https://bnblegal.com/landmark/vineeta-sharma-vs-rakesh-sharma-ors/ https://bnblegal.com/landmark/vineeta-sharma-vs-rakesh-sharma-ors/#respond Thu, 13 Aug 2020 05:52:31 +0000 https://bnblegal.com/?post_type=landmark&p=256084 R E P O R T A B L E IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. DIARY NO.32601 OF 2018 VINEETA SHARMA … APPELLANT(S) VERSUS RAKESH SHARMA & ORS. … RESPONDENTS WITH SPECIAL LEAVE PETITION (C) NO.684 OF 2016 SPECIAL LEAVE PETITION (C) NO.35994 OF 2015 SPECIAL LEAVE PETITION […]

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]]> R E P O R T A B L E

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. DIARY NO.32601 OF 2018

VINEETA SHARMA … APPELLANT(S)
VERSUS
RAKESH SHARMA & ORS. … RESPONDENTS

WITH

SPECIAL LEAVE PETITION (C) NO.684 OF 2016

SPECIAL LEAVE PETITION (C) NO.35994 OF 2015

SPECIAL LEAVE PETITION (C) NO.38542 OF 2016

SPECIAL LEAVE PETITION (C) NO.6403 OF 2019

SPECIAL LEAVE PETITION (C) NO.14353 OF 2019

SPECIAL LEAVE PETITION (C) NO.24901 OF 2019

SPECIAL LEAVE PETITION (C) NOS.1766­1767 OF 2020

J U D G M E N T

ARUN MISHRA, J.

1. The question concerning the interpretation of section 6 of the Hindu Succession Act, 1956 (in short, ‘the Act of 1956’) as amended by Hindu Succession (Amendment) Act, 2005 (in short, ‘the Act of 2005’) has been referred to a larger Bench in view of the conflicting verdicts rendered in two Division Bench judgments of this Court in Prakash & Ors. v. Phulavati & Ors., (2016) 2 SCC 36 and Danamma @ Suman Surpur & Anr. v. Amar & Ors., (2018) 3 SCC 343. In other connected matters, the question involved is similar; as such, they have also been referred for hearing along.

2. In the case of Lokmani & Ors. v. Mahadevamma & Ors., [S.L.P.(C) No.6840 of 2016] the High Court held that section 6, as amended by the Act of 2005, is deemed to be there since 17.6.1956 when the Act of 1956 came into force, the amended provisions are given retrospective effect, when the daughters were denied right in the coparcenary property, pending proceedings are to be decided in the light of the amended provisions. Inequality has been removed. The High Court held that the oral partition and unregistered partition deeds are excluded from the definition of ‘partition’ used in the Explanation to amended Section 6(5).

3. In Balchandra v. Smt. Poonam & Ors. [SLP [C] No.35994/2015], the question raised is about the retrospectivity of section 6 as substituted by Amendment Act, 2005 and in case the father who was a coparcener in the joint Hindu family, was not alive when the Act of 2005 came into force, whether daughter would become a coparcener of joint Hindu family property.

4. In the matter of Sistia Sarada Devi v. Uppaluri Hari Narayana & Ors. [SLP [C] No.38542/2016], the question raised is where the final decree has not been passed in a suit for partition, whether the re­ distribution of shares can be claimed by the daughters by amended section 6, as substituted.

5. In Girijavva v. Kumar Hanmantagouda & Ors. [SLP [C] No.6403/2019], the question raised is whether section 6, as substituted, is prospective as the father died in the year 1994 and, thus, no benefit could be drawn by the daughters.

6. In Smt. V.L. Jayalakshmi v. V.L. Balakrishna & Ors. [SLP [C] No. 14353/2019], the petitioner sought partition of his father’s ancestral properties, and suit was filed in 2001. The trial court granted 1/7th share to all the parties. The same was modified. It was held petitioner, and daughters were entitled to only 1/35th share in the light of the decision of this Court in Prakash v. Phulavati (supra).

7. In Indubai v. Yadavrao [SLP [C] No.24901/2019], a similar question has been raised. In B.K. Venkatesh v. B.K. Padmavathi [SLP [C] Nos. 1766­67/2020], the daughters have been accorded equal shares in Item No. 1 of Schedule A property, that has been questioned.

8. A Division Bench of this Court in Prakash v. Phulavati (supra) held that section 6 is not retrospective in operation, and it applies when both coparceners and his daughter were alive on the date of commencement of Amendment Act, 9.9.2005. This Court further opined that the provision contained in the Explanation to section 6(5) provides for the requirement of partition for substituted section 6 is to be a registered one or by a decree of a court, can have no application to a statutory notional partition on the opening of succession as provided in the unamended Section 6. The notional statutory partition is deemed to have taken place to ascertain the share of the deceased coparcener which is not covered either under the proviso to section 6(1) or section 6(5), including its Explanation. The registration requirement is inapplicable to partition of property by operation of law, which has to be given full effect. The provisions of section 6 have been held to be prospective.

9. In Danamma (supra), this Court held that the amended provisions of section 6 confer full rights upon the daughter coparcener. Any coparcener, including a daughter, can claim a partition in the coparcenary property. Gurunalingappa died in the year 2001, leaving behind two daughters, two sons, and a widow. Coparcener’s father was not alive when the substituted provision of section 6 came into force. The daughters, sons and the widow were given 1/5th share apiece.
Arguments:

10. Shri Tushar Mehta, learned Solicitor General of India, appearing on behalf of Union of India, raised the following arguments:

(i) The daughters have been given the right of a coparcener, to bring equality with sons, and the exclusion of daughter from coparcenary was discriminatory and led to oppression and negation of fundamental rights. The Amendment Act, 2005, is not retrospective but retroactive in operation since it enables the daughters to exercise their coparcenary rights on the commencement of the Amendment Act. Even though the right of a coparcener accrued to the daughter by birth, coparcenary is a birthright.

(ii) The conferment of coparcenary status on daughters would not affect any partition that may have occurred before 20.12.2004 when the Bill was tabled before Rajya Sabha as contained in the proviso to section 6(1). Hence, the conferment of right on the daughter did not disturb the rights which got crystallised by partition before 20.12.2004.

(iii) Unamended Section 6 provided that if a male coparcener had left behind on death a female relative specified in Class I of the Schedule or male relative claiming through such female relative, the daughter was entitled to limited share in the coparcenary interest of her father not share as a coparcener in her rights. They were unable to inherit the ancestral property like sons/male counterparts. The Mitakshara coparcenary law not only contributed to discrimination on the ground of gender but was oppressive and negated the fundamental right of equality guaranteed by the Constitution of India.

(iv) With effect from 9.9.2005, the date of enforcement of Amendment Act, the daughters became coparceners by birth, in their own right with the same liability in the coparcenary property as if she had been a son.

(v) The Explanation contained under Section 6(1) concerning conferral of rights as coparcener, daughter as coparcener, shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20.12.2004.

(vi) After substitution of the provisions of section 6, the devolution of coparcenary by survivorship has been abrogated. Now in case of death of coparcener, male/female, the coparcenary interest would not devolve by survivorship but by intestate succession under the provisions of the Hindu Succession Act or based on testamentary succession.

(vii) The decision in Prakash v. Phulavati to the effect that there should be a living daughter of a living coparcener on the date of commencement of the Act of 2005 fails to appreciate that coparcenary rights are by birth. The death of a Hindu coparcener father or any other coparcener is only relevant for the succession of his coparcenary interest under section 6(3) of the Act of 2005. The death of any coparcener does not bring to an end any coparcenary. An increase or decrease in the coparcenary interest independently held by each coparcener may occur by birth or death. On the coparcener’s death, the notional partition is drawn only to determine his coparcenary’s interest. It does not disturb the other incidents of the coparcenary, it can continue without disruption with other coparceners, and even new coparceners can be added on account of birth till the time an actual partition takes place. Coparcenary interest becomes definite only when a partition is effected.

(viii) The daughter of a coparcener in section 6 does not imply the daughter of a living coparcener or father, as the death of the coparcener/father does not automatically lead to the end of coparcenary, which may continue with other coparceners alive. Thus, the coparcener, from whom the daughter is inheriting by her being coparcener, needs not to be alive as on the commencement of the Amendment Act of 2005.

(ix) The Explanation to Section 6(5) was not provided in the original amendment Bill moved before the Rajya Sabha on 20.12.2004, which came to be added later.

(x) Often, coparceners enter into a family arrangement or oral partition, and it may not be necessary to register such a partition. Explanation to section 6(5) of the Amendment Act requires the partition to be registered, was inserted to avoid any bogus or sham transactions. Considering the entire scheme of the Amendment Act, the requirement of registered partition deed is directory and not mandatory. Any coparcener relying upon any family arrangement or oral partition must prove the same by leading proper documentary evidence.

11. Shri R. Venkataramani, learned senior counsel/amicus curiae, argued as under:

(a) There is no conflict between the decisions in Prakash v. Phulavati (supra) and Danamma v. Suman (supra). In both the decisions, the provisions of section 6 have been held to be of prospective application. The amendment is a prospective one. The declaration by the law that the daughter of a coparcener has certain entitlements and be subject to certain liabilities is prospective. The daughter is treated as a coparcener under the amendment Act and not because of the daughter’s birth prior to the amendment.

(b) Unlike the joint tenancy principle in English law, a joint Hindu family stands on a different footing. Every son by birth became a coparcener, and because of birth, the son became entitled to be a coparcener in the joint Hindu family property entitled to claim partition with or without reference to the death of the Karta of a joint Hindu family. Like a son born into the family, an adopted son is also entitled to succeed to the joint family property. He becomes a coparcener with adoptive father, but his relationship with the natural family is severed, including his status as a coparcener in the family of birth as laid down in Nagindas Bhagwandas v. Bachoo Hurkissondas, AIR 1915 PC 41 and Nanak Chand & Ors. v. Chander Kishore & Ors., AIR 1982 Del. 520.

(c) A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows, and unmarried daughters bound together by the fundamental principle of a Sapindaship of family relationship is the essence and distinguishing feature of the institution of the coparcenary. A joint family may consist of a single male member and widows of deceased male members. This body is purely a creature of law and cannot be created by an act of parties, as observed in G. Narasimulu & Ors. v. P. Basava Sankaram & Ors., AIR 1925 Mad. 249; and State Bank of India v. Ghamandi Ram (dead) through Gurbax Rai, (1969) 2 SCC 33. An undivided family which is the normal condition of Hindu society is ordinarily joint not only in the estate but in food and worship, and, therefore, not only the concerns of the joint family but whatever relates to their commensality and their religious duties are regulated by the member or by the manager to whom they have expressly or by implication delegated the task of regulation as held in Raghunadha v. Brozo Kishore, 3 IA 154 (PC). The coparcener status being the result of birth; possession of the joint property is only an adjunct of the joint family and is not necessary for its constitution, as discussed in Haridas Narayandas Bhatia v. Devkuvarbai Mulji, AIR 1926 Bom. 408.

(d) A Hindu coparcenary is said to have seven essential characteristics, which include that the interest of a deceased member survives on his death and merges in the coparcenary property as observed in Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977) 3 SCC 385. As a result, if father or any other coparcener has died before the Amendment Act, 2005, the interest of father or another coparcener would have already merged in the surviving coparcenary. Consequently, there will be no coparcener alive, from whom the daughter will succeed. Thus, the daughter can succeed only in the interest of living coparcener as on the date of enforcement of the Amendment Act.

(e) In Anthonyswamy v. Chhinnaswamy, (1969) 3 SCC 15, it was observed that as a logical corollary and counter­balance to the principle before the amendment, that the son from the moment of his birth, acquires an interest in the coparcener, a pious obligation is imposed on him to pay his father’s debts incurred for the purpose which is not illegal or immoral.

(f) In Baijnath Prasad Singh & Ors. v. Tej Bali Singh, AIR 1921 PC 62, it was observed that there is a difference between coparcenary in Hindu law, which is not identical with coparcenary as understood under the English law. In the case of death of a member of a coparcenary under the Mitakshara law, his right accretes to other members by survivorship while under the English law if one of the co­ heirs jointly inheriting property dies, his or her right goes to his or her relations without accreting to surviving coparceners.

(g) By birth and adoption, a male becomes a coparcener. The custom of adoption is of ancient origin, as observed in Amarendra Man Singh Bhramarbar & Anr. v. Sanatan Singh & Ors., AIR 1933 PC 155, and Sri Balusu Gurulingaswami v. Sri Balusu Ramalakshmamma & Ors., 26 IA 113. The adoption at the relevant time was only of male and not of a female as the custom related to succession to the property, as discussed in Bireswar Mookerji & Ors. v. Shib Chunder Roy, 19 IA 101.

(h) By the expression used in the amended section 6, the daughter becomes coparcener by birth. The retrospective effect is not intended to be given to the provisions of section 6. Though equality has been brought in, w.e.f. 2005, the incidence of birth of a daughter before 2005 is of no consequence and not to reopen the past transactions.

(i) The oral partition and family settlement are not intended to be reopened by section 6(1) and 6(5).

(j) If the daughter is treated as coparcener at any point of time in the past before the amendment, the same will bring in enormous uncertainty in the working of the law. It can be stated that the Parliament has not intended to scramble the unscrambled egg or to resurrect the past.

(k) Challenges to partition had always come when any member of a coparcenary, including an adopted son, stood deprived of the entitlement to succeed to the joint family property.

(l) The scheme of section 6 is future and forward­looking, and it has to be interpreted in such a manner that its relevance is not diluted. Now the rights of a coparcener have been enlarged, and the provision has disabled it from defeating the right of a daughter from being treated equally.

(m) In the light of the decision in Shashikalabai (Smt) v. the State of Maharashtra & Anr., (1998) 5 SCC 332, the past transactions cannot be reopened. Thus, the daughter, whose coparcener father, was alive on the date of incorporation of provisions of section 6, will be treated as a coparcener. Any other interpretation would cause unjust consequences.

12. Shri V.V.S. Rao learned amicus curiae/senior counsel, argued that:

(a) the logic of Prakash v. Phulavati has been upheld in Mangammal v. T.B. Raju, (2018) 15 SCC 662. It was held that there should be a living daughter of a living coparcener to inherit the property on the date of enforcement of the amended provisions of the 2005 Act.

(b) Section 6(1)(a) declares a daughter to be a coparcener by birth.

By the declaration, a daughter stands included in coparcenary. As the declaration is to the effect that the daughter is to become coparcener by birth, the question of prospectivity or retrospectivity will not arise— daughter, whether born before 2005 or after that, is considered a coparcener.

(c) Section 6(1)(b) and (c) deal with the effects of inclusion of daughter as a coparcener. Having regard to the plain language and future perfect tense “shall have the same rights,” the only conclusion is that the daughters who are included in the coparcenary will have the same rights after coming into force of the Amendment Act. The future perfect tense indicates that an action will have been completed (finished or perfected) at some point in the future. This tense is formed with “will” plus “have” plus the past participle of the verb. If the Parliament had intended to mean as conferring the same rights in the coparcenary, anterior to the amendment, the language would have been different. The future perfect tense indicates that action will have to be completed at some point in time in the future. The tense is formed with “will” plus “have” plus the past participle of the verb. If the Parliament intended to mean conferring the same rights in the coparcenary, anterior to the amendment, the language would have been different. If the daughter is now made a coparcener, she would now have the same rights as she is a son.

(d) The legislative history of section 6 throws light in understanding the provision before the Act of 1956 was enacted. Women were not having any interest in the coparcenary properties, and on the demise of a coparcener, the share of the deceased coparcener devolved on the surviving coparceners. Hindu Succession Act made inroads into the system. It provided that on the demise of a coparcener, his interest in the coparcenary properties would not devolve on other coparceners by survivorship, and the share of the deceased coparcener was to be ascertained by way of notional partition as on the date of death. To that limited extent, the women did not become a coparcener, but they could inherit the property.

(e) The 174th Report of Law Commission of India recommended the adoption of the Kerala Model, and the amendments were effected in Kerala, Andhra Pradesh, Karnataka, and in several States, giving coparcenary rights to the daughters.

(f) The Parliament Standing Committee report indicates that the Ministry proposed giving the benefit of the provision of this Bill to married daughters after the commencement of the proposed amending legislation.

(g) It was proposed in the report that nothing in the amended section 6 shall apply to a partition that has been effected before the commencement of the Amendment Act.

(h) Deliberations by the Committee also indicate that concerning the partition effected through oral means, it was opined that it would depend upon the facts of a particular case. As per the prevailing law, it was not necessary that a partition should be registered. There can be an oral partition also, as the law does not prohibit it. At the same time, the Committee observed that the term ‘partition’ should be defined appropriately, and for all practical purposes, should be registered or should have been effected by a decree of the Court. In case where oral partition is recognised, it should be backed by proper evidentiary support.

(i) The Parliament intended to confer the status of a coparcener from the birth of a daughter. However, it was never intended to confer her the rights in the coparcenary property retrospectively, for the following reasons:

a. Section 6(1)(a) deals with the inclusion of a daughter in the coparcenary “on and from the commencement of amendment Act 2005, w.e.f. 9.9.2005;

b. The operating part of section 6(1) controls not only clause (a) but also clauses (b) and (c);

c. Hence the daughter who is declared as coparcener from 9.9.205 would have the right in a coparcenary property only from 9.9.2005;

d. Equally, a daughter who is now coparcener will be subject to the same liabilities in respect of property only from 9.9.2005.

(j) Conferment of coparcenary status shall take effect on and from the commencement “of the Amendment Act.” The use of the words “on and from” in section 6(1) indicates that the daughter becomes coparcener from the commencement of the Act. The daughter of a coparcener shall by birth become a coparcener, have the same rights and be subject to the same liabilities. The word “shall” indicates the due status of the daughter as coparcener is created only for the future and would not affect the existing rights of a male coparcener. The use of the words “become,” “have,” and “be” are all present tenses, and they reiterate to support the above­suggested interpretation.

(k) In the Bill recommended by the Law Commission and the Bill introduced, the Explanation to section 6(5) was not mentioned. It was introduced only on the recommendations of the Parliamentary Committee. Thus, the concept of partition by registered deed and

decree of the Court were introduced. It follows that on a daughter becoming coparcener from a particular date, she cannot prospectively affect the share of a coparcener, which was already fixed as held in Prakash v. Phulavati.

(l) The essential condition for conferring the status of coparcener on the daughter is that there should be a coparcenary on the date of coming into force of the Act in 2005. If the coparcenary was disrupted by the act of the parties or by the death of parties, in partition or sale, the daughter could not get the status of a coparcener in coparcenary. The status conferred cannot affect the past transactions of alienation, disposition, partition – oral or written.

(m) Partition could be in the form of a memorandum of partition, or it could also be made orally. In most of the families, there used to be an oral partition. Once parties settle their rights, the partition effected orally cannot be ignored to give shares to the daughters. Such legal transactions cannot be unsettled; the Explanation safeguards all genuine transactions of the past, including oral partition effected by the parties. The Explanation should not be understood as invalidating all other documents recording partition or oral partition in respect of coparcenary property before 20.12.2004.

(n) Daughters conferred with the status of coparcener under the Amendment Act cannot challenge past transactions that took place before 20.12.2004, and the daughter should be alive as on the date of amendment. There should be ‘living coparcener’ to whom the daughter can inherit to become a coparcener.

13. Shri Sridhar Potaraju, learned counsel, vociferously argued that:

(a) The decision in Prakash v. Phulavati adopted the correct interpretation of the provision. Married daughters are not considered as part of the father’s joint family. They were recognised as Class I heirs that, by itself, did not make them part of their father’s joint Hindu family. He has relied upon Surjit Lal Chhabda v. Commissioner of Income Tax, (1976) 3 SCC 142. A married daughter ceases to be a member of the father’s family and becomes a member of her husband’s family.

(b) As considered by P. Ramanatha Aiyar in Major Law Lexicon, the land is held in coparcenary when there is the unity of title, possession, and interest. A Hindu coparcenary is a narrower body than the joint family. A coparcener shares (equally) with others in inheritance in the estate of a common ancestor. Otherwise called parceners are such as have an equal portion in the inheritance of an ancestor. The share of a coparcener is undefined and keeps fluctuating with the birth and death of a coparcener. When a male is born, he becomes a coparcener, thereby decreasing the share of other coparceners. In the event of the death of a coparcener, the rule of survivorship comes into play, and the estate devolves on the surviving coparceners to the exclusion of heirs of the deceased coparcener. Status of a coparcener is a creation of law commencing with birth and ending with death or by severance of such status by way of partition or statutory fiction. The status of coparcenary ceases on death.

(c) “Daughter of a coparcener” means the daughter of an alive person and has the status of a coparcener on the date of commencement of the Amendment Act. In case a statutory partition has taken place, the same is required to be recognised. It would bring severance of jointness of status and settle the share.

(d) If a preliminary decree of partition has been passed and has attained finality, it must be given effect. The mere filing of a suit for partition is sufficient to effect a partition. On separation of status, the decree is passed by a court as held in Puttrangamma & Ors. v. M.S. Ranganna & Ors., AIR 1968 SC 1018.

(e) What rights have been conferred by way of survivorship are not intended to be taken away except as provided by the amended proviso in section 6(3) of the Amendment Act.

(f) A legal fiction created in law cannot be stretched beyond the purpose for which the fiction has been created, as held in Mancheri Puthusseri Ahmed & Ors. v. Kuthiravattam Estate Receiver, (1996) 6 SCC 185.

(g) Statutory partition leads to disruption. A statutory partition, as provided in section 6(3), is to be given full effect. The same leads to severance of status of jointness of the deceased coparcener and his legal heirs, which shall include the right of maintenance from the joint family of the widow of the deceased coparcener and such other rights. Such partition brings an end to the joint family. In the case of death of the father of petitioner in 1963, notional partition would occur and the consequences laid down in Anar Devi & Ors. v. Parmeshwari Devi & Ors., (2006) 8 SCC 656 would follow.

(h) The married daughters on the death of father in 1963 were not entitled to a share in the coparcenary property. Only sons were entitled to equal shares, and sons obtained the property by way of survivorship. The statutory partition under unamended Section 6 was considered in Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum & Ors., (1978) 3 SCC 383. Statutory partition has been in existence in section 6 since 1956 and is continued by the 2005 Amendment.

(i) Section 6, as amended, is not applicable in the case of a daughter whose father is not alive at the time of the introduction of provisions of section 6. Every member of a joint Hindu family is not entitled to be a coparcener either under the traditional Hindu law or under the Hindu Succession Act, 1956 or the Amendment Act, 2005. Under Section 29A introduced in the State of Andhra Pradesh, unmarried daughters were given the rights of a coparcener while excluding married daughters. The Central Amendment has not made a distinction based on the daughter’s marital status expressly but has made it evident by the use of the expression ‘joint Hindu family’ and ‘daughter of a coparcener.’ The provisions should be read to exclude married daughters. The provisions of section 6, as amended, are prospective. It was not intended to unsettle the settled affairs.

(j) The Explanation to section 6(5) cannot be interpreted to take away the rights crystallised upon the surviving coparceners of the joint family under the statutory partition. The purpose of the Explanation was considered in S. Sundaram Pillai & Ors. v. V. R. Pattabiraman & Ors., (1985) 1 SCC 591 thus:

“53. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is—
“(a) to explain the meaning and intendment of the Act itself,

(b) where there is any obscurity or vagueness in the main enactment, to clarify the same to make it consistent with the dominant object it seems to subserve,
(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,

(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and

(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.”

(k) A preliminary decree determines the shares. Section 2(2) of the Code of Civil Procedure defines ‘decree’ to mean the formal expression, which clarifies that a decree is preliminary when further proceedings have to be taken before the suit can be decided entirely. In so far as the determination of individual shares to be allotted to parties to the suit is concerned, the preliminary decree is final. After the dismissal of Special Leave Petition (C) No.38542/2016 in Sistla Sarada Devi v. Uppaluri Hari Narayana & Ors., the only step required to be taken is to apportion the shares by metes and bounds in terms of the preliminary decree which was passed. The daughters born after the commencement of the Amendment Act become coparceners, and daughters born before the commencement of the Amendment Act have been covered under section 6(1)(b) and granted the same rights in coparcenary as given to a son. The daughters born before and after the amendment covered under section 6 are given the status of a coparcener. The status of a coparcener to daughters cannot be given from the date of birth, and they cannot be made liable for all the liabilities of coparcenary property. The benefit cannot be conferred from the date of birth as it would relate in several cases to date of birth even in the year 1925. All liabilities are to be borne only from the amendment; as such, the provisions are not retrospective.

(l) Even alternatively, if the status of coparcenary on the daughter is to be conferred retrospectively, the limitations governing such legal fiction will have to take into consideration the implications of (i) statutory partition; (ii) court’s decree; and (iii) legitimate alienation of the property by Karta/coparceners, prior to commencement of the Amendment Act. All other dispositions or alienations, including any partition or testamentary disposition of property made before 20.12.2004, are required to be saved as earlier the daughters were not coparceners. On a statutory partition, the property becomes the self­ acquired property and is no more a coparcenary property.

(m) Even in a case of adoption, the past transactions are saved while applying the theory of relation back as laid down in Sripad Gajanan Suthankar v. Dattaram Kashinath Suthankar & Ors., (1974) 2 SCC 156. Thus, the provisions of section 6 are to be construed prospectively.

14. Shri Amit Pai, learned counsel, strenuously urged that:

(a) The golden rule of interpretation is required to be adopted as laid down in Kanai Lal Sur v. Paramnidhi Sadhukhan, (1958) SCR 360. The rule of literal construction is relied upon, as observed in Lt. Amrendra Col. Prithi Pal Singh Bedi v. Union of India, (1982) 3 SCC 140.

(b) The substitution of the provision of section 6 dates back to the commencement of the Principal Act of 1956. A notional partition on the death of a coparcener to ascertain his share is not an actual partition. The same is not saved by the proviso contained in section 6. A daughter cannot be deprived of the right to equality as per the Statement of Objects and Reasons. The provision of section 6 is required to be given full effect.

(c) The decision in Prakash v. Phulavati cannot be said to be laying down the law correctly. The concept of living daughter of a living coparcener is adding to the text of provisions of section 6, whereas no word can be added or read into a statute by the Court. It can only repair errors or supply omissions. It is for the legislature to provide such a concept of a daughter of a living coparcener. Thus, it was argued that section 6 includes all living daughters of coparceners, irrespective of whether such coparceners are deceased or alive at the commencement of the 2005 Amendment.

15. Shri Sameer Shrivastava, learned counsel, urged that:

(a) The term ‘coparcener’ is not defined in the Succession Act. This Court considered it in Sathyaprema Manjunatha Gowda (Smt) v. Controller of Estate Duty, Karnataka, (1997) 10 SCC 684. It is a narrower body than a joint family and consists of only those persons who have taken by birth, an interest in the property, and can enforce a partition, whenever they like. The daughter is entitled to share in the property subject to the restrictions provided under sub­section (1) and sub­section (5) of amended section 6.

(b) Section 6(3) provides a consequence of the death of a coparcener, devolution on the death of a coparcener after the commencement of the Amendment Act. The concept of survivorship has been done away. Testamentary or intestate succession has been provided where a Hindu dies before the commencement of the Amendment Act. The relevant provisions are section 6(1)(2), where male Hindus are given the right by birth to become a coparcener, and they have the right to take a partition with coparcenary property.

(c) The decision in Prakash v. Phulavati, laying down that section 6 as amended applies in case of living daughters of a living coparcener, is arbitrary and non­est in the eye of law. Both sons and daughters of coparceners are conferred the right of becoming coparcener by birth. Birth in coparcenary creates interest. The only other exception is by way of adoption. Coparcenary incident is the right to the severance of the status of partition.

16. Ms. Anagha S. Desai, learned counsel, strenuously urged that section 6 provides parity of rights in coparcenary property among male and female members of a joint Hindu family on and from 9.9.2005. The declaration in section 6 that the daughter of a coparcener shall have the same rights and liabilities as she would have been a son is unambiguous and unequivocal. The daughter is entitled to a share in the ancestral property. She has relied upon Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (2011) 9 SCC 788.

17. When a daughter, who is claiming and demanding a share in the coparcenary, is alive, there is no difficulty of interpretation, irrespective of the fact whether a coparcener has died before the commencement of the Amendment Act. The coparcener and the daughter do not need to be alive as on the date of the amendment. If it is to be interpreted that coparcener and daughter both should be alive, it will defeat the very purpose and objective of the amended provisions. Earlier, the provisions of Hindu law treated a son as a coparcener by birth; now, daughters are given the same rights since birth. In case partition has been effected by metes and bounds and is adequately proved, then the daughter of coparcenary cannot seek partition of already divided property.

In Ref. Historical Background

18. The Hindu branch of dharma is influenced by the theological tenets of the Vedic Aryans. What is not modified or abrogated by the legislation or constitutional provisions still prevails, the basic Hindu law emanates from Vedas and past shrutis/smritis. Various dharma shastras regard custom as the basis of Hindu law as administered from time to time. Law has advanced and made progress as per the requirements of the society and the prevailing ethos. The justice used to be administered by the emperors resolving the conflicts. The building of law has taken place over time. There are two main schools of Hindu law, i.e., Mitakshara and Dayabhaga. Mitakshara has further been sub­divided into four schools, i.e., Benares, Mithila, Maharashtra or Bombay, and Dravida or Madras school. Benares, Mithila, Dravida, and Maharashtra denote old names of the territories.

19. The application of schools of Mitakshara is region­wise. There has been re­organization of States in 1956, and after that, some confusion has arisen concerning the administration of Bombay school and Benares School. Benares school practically governs the whole of Northern India. The Bombay school covers Western India and various other territories. The certain States were re­organized by the State Reorganisation Act of 1956. In some regions of reorganised States, given the common name, different schools apply. Take, for example, Madhya Pradesh. It consists of territories to which both Bombay and Benares schools are applicable. However, various authors of Hindu law have failed to note the fact in which parts of the State of M.P. after reorganisation which school is applicable. A reference is found to tenets of Bombay school of Hindu law in the entire State of M.P., whereas Benares school is applicable in various parts of Madhya Pradesh. It was clarified by a Full Bench of Madhya Pradesh High Court in Diwan Singh v. Bhaiya Lal, (1997) 2 MP LJ­202, and a Division Bench decision was relied on in FA No.31/1968 decided on 14.12.1976. In integrating State of Madhya Bharat and some other parts of Madhya Pradesh, Benares school is applicable, not Bombay.

20. Mitakshara law applies to most parts of India except Bengal. Maharashtra school prevailed in North India, Bombay school, in Western India. However, certain areas in Southern India are governed by Marumakkatayam, Aliyasantana, and Nambudiri systems of law.

21. Besides the various sources, custom, equity, justice, and conscience have also played a pivotal role in the development of Hindu law, which prevailed. When the law was silent on certain aspects, Judicial decisions also acted as a source of law. Hindu law was not static but always progressive. Slowly necessity was felt for the codification of Hindu law. In particular, women’s rights were taken care of, and attempts were made to remove the anomalies and unscrupulous practices. Necessity was also felt after the independence, given the constitutional imperatives to bring about equality of status, the codified law has been amended from time to time. The latest attempt has been made by way of amending the Hindu Succession Act concerning rights of daughter to be a coparcener in Mitakshara coparcenary and has been given the rights equal to that of a son.

In Ref. Coparcenary and Joint Hindu Family

22. A joint Hindu family is a larger body than a Hindu coparcenary.

A joint Hindu family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters. A joint Hindu family is one in worship and holds joint assets. After separation of assets, the family ceases to be joint. Mere severance in food and worship is not treated as a separation, as observed in Sri Raghunadha v. Sri Brozo Kishore, 1876 (1) Mad. 69 = 3 IA 154.

23. Hindu coparcenary is a much narrower body. It consists of propositus and three lineal descendants. Before 2005, it included only those persons like sons, grandsons, and great­grandsons who are the holders of joint property. For example, in case A is holding the property, B is his son, C is his grandson, D is great­grandson, and E is a great­great­grandson. The coparcenary will be formed up to D, i.e., great­grandsons, and only on the death of A, holder of the property, the right of E would ripen in coparcenary as coparcenary is confined to three lineal descendants. Since grandsons and great­grandsons become coparceners by birth, they acquired an interest in the property.

24. Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great grandfather. Property inherited from others is held in his rights and cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners.

25. Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption. As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise. Great great­grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded.

In Ref. Formation of Coparcenary

26. For interpreting the provision of section 6, it is necessary to ponder how coparcenary is formed. The basic concept of coparcenary is based upon common ownership by coparceners. When it remains undivided, the share of the coparcener is not certain. Nobody can claim with precision the extent of his right in the undivided property. Coparcener cannot claim any precise share as the interest in coparcenary is fluctuating. It increases and diminishes by death and birth in the family.

27. In Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988) 2 SCC 77, the Court discussed essential features of coparcenary of birth and sapindaship thus:
“17. Those who are of individualistic attitude and separate ownership may find it hard to understand the significance of a Hindu joint family and joint property. But it is there from the ancient time perhaps, as a social necessity. A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters. They are bound together by the fundamental principle of sapindaship or family relationship, which is the essential feature of the institution. The cord that knits the members of the family is not property but the relationship of one another.

18. The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than a joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants up to three degrees can offer spiritual ministration to an ancestor. Only males can be coparceners. [See: Hindu Law by N.R. Raghavachariar, 8th Edn., p. 202]”
(emphasis supplied)

28. In case coparcenary property comes to the hands of a ‘single person’ temporarily, it would be treated as his property, but once a son is born, coparcenary would revive in terms of the Mitakshara law. In Sheela Devi v. Lal Chand, (2006) 8 SCC 581, it was observed:

“12. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten (See C. Krishna Prasad v. CIT, (1975) 1 SCC 160). But once a son is born, it becomes a coparcenary property, and he would acquire an interest therein.”

In M. Yogendra & Ors. v. Leelamma N. & Ors., (2009) 15 SCC 184, similar opinion was expressed thus:
“29. It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.”
(emphasis supplied)

In Smt. Sitabai & Anr. v. Ramchandra, AIR 1970 SC 343, it was held:
“3. x x x under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint family did not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess…..”

In Dharma Shamrao Agalawe v. Pandurang Miragu Agalwe & Ors., (1988) 2 SCC 126, it was held that joint family property retains its character even after its passing on to the hands of a sole surviving coparcener. If a son is subsequently born or adopted, the coparcenary will survive, subject to saving the alienations made in the interregnum.

29. In Ghamandi Ram (supra), the formation, concept and incidents of the coparcenary were discussed thus:

“5. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (see Mitakshara, Ch. I, 1-27). The incidents of co-parcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of such co- ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by Act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter. In Sundaranam Maistri v. Harasimbhulu Maistri and Another, ILR 25 Mad 149 at 154.

Mr Justice Bhashyam Ayyangar stated the legal position thus:

“The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body (Gan Savant Bal Savant v. Narayan Bhond Savant) [ILR 7 Bom 467] and Mayne’s ‘Hindu Law and Usage’, (6th edition, Paragraph 270) and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition viz. the undivided state — it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be created by Act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family.”

6. Adverting to the nature of the property owned by such a family the learned Judge proceeded to state:

“As regards the property of such family, the ‘unobstructed heritage’ devolving on such family, with its accretions, is owned by the family, as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate ‘unobstructed heritage’ which, with its accretions, may be exclusively owned by such branch as a corporate body.”
(emphasis supplied)

30. Essential characteristics of coparcenary, as discussed in the above­mentioned decision in Ghamandi Ram (supra), were analysed in Controller of Estate Duty v. Alladi Kuppuswamy, (supra), thus:

“8. ….”Thus analysing the ratio of the aforesaid case regarding the incidents of a Hindu coparcenary it would appear that a Hindu coparcenary has six essential characteristics, namely, (1) that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, each member has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he might receive; (4) that as a result of such co-ownership the possession and enjoyment of the property is common; (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property. Applying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by virtue of the Act of 1937, we find that, excepting Condition (1), all other conditions are fully satisfied in case of a Hindu widow succeeding to the interest of her husband in a Hindu coparcenary. In other words, after her husband’s death the Hindu widow under the Act of 1937 has got the right to demand partition, she cannot predicate the exact share which she might receive until partition is made, her dominion extends to the entire property conjointly with the other members of the coparcenary, her possession and enjoyment is common, the property cannot be alienated without concurrence of all the members of the family, except for legal necessity, and like other coparceners she has a fluctuating interest in the property which may be increased or decreased by deaths or additions in the family. It is manifest that she cannot fulfil the first condition, because she enters the coparcenary long after she is born and after she is married to her husband and acquires his interest on his death. Thus, short of the first condition, she possesses all the necessary indicia of a coparcenary interest. The fact that before the Act of 1956, she had the characteristic of a widow-estate in her interest in the property does not detract any the less from this position. It must follow as a logical corollary that though a Hindu widow cannot be a coparcener, she has coparcenary interest and she is also a member of the coparcenary by virtue of the rights conferred on her under the Act of 1937.”

31. In Controller of Estate Duty (supra), it has also been laid down that if a widow does not exercise her right of partition, there is no severance of the Hindu coparcenary and on her death, the interest of the widow merges in the coparcenary property or lapses to the other coparceners. It was observed that the male issue of coparcener acquires an interest in the coparcenary by birth, not as representing his father.

32. This Court in Controller of Estate Duty (supra), placed reliance on Satrughan Isser v. Sabujpari, & Ors., AIR 1967 SC 272. In case the right to partition by a widow has not been exercised, there is no severance of Hindu coparcenary, and on death of coparcener, there is no dissolution of coparcenary. In Satrughan (supra), it was held:

“7. By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener: though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that estate enures. But on the death of a coparcener there is no dissolution of the coparcenary so as to carve out a defined interest in favour of the widow in the coparcenary property: Lakshmi Perumallu v. Krishnavanamma. The interest acquired by her under Section 3(2) is subject to the restrictions on alienation which are inherent in her estate. She has still power to make her interest definite by making a demand for partition, is a male owner may. If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property. But if she claims partition, she is severed from the other members and her interest becomes a defined interest in the coparcenary property, and the right of the other coparceners to take that interest by survivorship will stand extinguished. If she dies after partition or her estate is otherwise determined, the interest in coparcenary property which has vested in her will devolve upon the heirs of her husband. It is true that a widow obtaining an interest in coparcenary property by Section 3(2) does not inherit that interest but once her interest has ceased to have the character of undivided interest in the property, it will upon termination of her estate devolve upon her husband’s heirs. To assume as has been done in some decided cases that the right of the coparceners to take her interest on determination of the widow’s interest survives even after the interest has become definite, because of a claim for partition, is to denude the right to claim partition of all reality.”

33. In Bhagwan Dayal (since deceased) & Anr. v. Mst. Reoti Devi, AIR 1962 SC 287, it was held that coparcenary is a creature of law and branch of the family was a subordinate corporate body and discussed the proposition thus:

“47. x x x Coparcenary is a creature of Hindu law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. The identity of the members of the family is not completely lost in the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a joint family belonging to different branches, or even to a single branch, as a corporate unit. Therefore, the rights inter se between the members who have acquired the said property would be subject to the terms of the agreement whereunder it was acquired. The concept of joint tenancy known to English law with the right of survivorship is unknown to Hindu law except in regard to cases specially recognized by it. In the present case, the uncle and the two nephews did not belong to the same branch. The acquisitions made by them jointly could not be impressed with the incidents of joint family property. They can only be co-sharers or co-tenants, with the result that their properties passed by inheritance and not by survivorship.”
(emphasis supplied)

34. In Kalyanji Vithaldas & Ors. v. Commissioner of Income Tax, Bengal, AIR 1937 PC 36, the concept of Hindu Undivided Family was considered thus:
“ The phrase “Hindu undivided family” is used in the statute with reference, not to one school only of Hindu law, but to all schools; and their Lordships think it a mistake in method to begin by pasting over the wider phrase of the Act the words “Hindu coparcenary”-all the more that it is not possible to say on the face of the Act that no female can be a member ”
(emphasis supplied)

In Gowli Buddanna v. Commissioner of Income Tax, Mysore, AIR 1966 SC 1523, it was held that coparcenary is narrower body than joint family thus:

“6. x x x A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family: it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. Therefore there may be a joint Hindu family consisting of a single male member and widows of deceased coparceners. x x x”
(emphasis supplied)

The difference between joint Hindu family and coparcenary was considered in Surjit Lal Chhabda v. The Commissioner of Income Tax, Bombay, (supra) thus:

“13. Outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father’s family and becomes a member of her husband’s family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption:

“The fundamental principle of the Hindu joint family is the sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible not to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family, and is of its very essence, (1908) 32 Bom. 479.””
(emphasis supplied)

35. In State of Maharashtra v. Narayan Rao Sham Rao Deshmukh & Ors., (1985) 2 SCC 321, characteristics of joint family and coparcenary were culled out. It was also held that interest of a female member of a joint Hindu family getting fixed, on her inheriting interest of a deceased male member of the family. She would not cease to be a member of family unless she chooses to become separate by partition, thus:

“8. A Hindu coparcenary is, however, a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary, A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. A joint family, however, may consist of female members. It may consist of a male member, his wife, his mother and his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is only a single male member in the family. (See Gowli Buddanna v. CIT, AIR 1966 SC 1523 and Sitabai v. Ram Chandra, (1969) 2 SCC 544). A joint family may consist of a single male member and his wife and daughters. It is not necessary that there should be two male members to constitute a joint family. (See N.V. Narendranath v. C.W.T., (1969) 1 SCC 748). While under the Mitakshara Hindu law there is community of ownership and unity of possession of joint family property with all the members of the coparcenary, in a coparcenary governed by the Dayabhaga law, there is no unity of ownership of coparcenary property with the members thereof. Every coparcener takes a defined share in the property and he is the owner of that share. But there is, however, unity of possession. The share does not fluctuate by births and deaths. Thus it is seen that the recognition of the right to a definite share does not militate against the owners of the property being treated as belonging to a family in the Dayabhaga law.

10. We have carefully considered the above decision and we feel that this case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under Section 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her, as stated in Explanation I to Section 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under Section 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his heir. Such a result does not follow from the language of the statute. In such an event she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. We have already noticed that in the case of a Dayabhaga family, which recognises unity of possession but not community of interest in the family properties amongst its members, the members thereof do constitute a family. That might also be the case of families of persons who are not Hindus. In the instant case the theory that there was a family settlement is not pressed before us. There was no action taken by either of the two females concerned in the case to become divided from the remaining members of the family. It should, therefore, be held that notwithstanding the death of Sham Rao the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed.”
(emphasis supplied)

36. The essential feature is aggregate ownership, i.e., ‘Samudavika Swatwa’ in coparcenary and the share keeps on fluctuating, was observed in Commissioner of Income Tax, Poona v. H.H. Raja of Bhor, (1967) (65) ITR 634 thus:

“…… no individual member of a Hindu coparcenary, while it remains undivided, can predicate of the joint and undivided property, that he, or any particular member, has a definite share, one-third or one-fourth – (Lord Westbury in Approvier v. Rama Subha Aiyan, (1866 11 MIA 75). His interest in the coparcenary property is a fluctuating interest which is capable of being enlarged by death in the family. It is only on partition that the coparcener is entitled to a definite share. But the important thing to notice is that the theory of ownership being acquired by birth has given rise to the doctrine of Samudavika swatwa or aggregate ownership in the Mitakshara school. Till partition therefore all the coparceners have got rights extending over the entirety of the coparcenary property……”
(emphasis supplied)

37. In Vellikannu v. R. Singaperumal & Anr., (2005) 6 SCC 622, this Court restated that the share of a member of a coparcenary fluctuates from time to time is a settled proposition of law. It was held:

“11. So far as the property in question is concerned, there is a finding of the courts below that the property is a coparcenary property and if that being so, if Defendant 1 had not murdered his father then perhaps things would have taken a different shape. But what is the effect on the succession of the property of the deceased father when the son has murdered him? If he had not murdered his father he would have along with his wife succeeded in the matter. So far as the rights of coparceners in the Mitakshara law are concerned, the son acquires by birth or adoption a vested interest in all coparcenary property whether ancestral or not and whether acquired before or after his birth or adoption, as the case may be, as a member of a joint family. This is the view which has been accepted by all the authors of the Hindu law. In the famous principles of Mulla, 15th Edn. (1982) at pp. 284 and 285, the learned author has stated thus:
“The essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is ‘undivided coparcenary interest’. The nature and extent of that interest is defined in Section 235. The rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property. As observed by the Privy Council in Katama Natchiar v. Rajah of Shivagunga, (1863) 9 MIA 543, ‘there is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased’s lifetime a common interest and a common possession’.”

13. In N.R. Raghavachariar’s Hindu Law — Principles and Precedents, 8th Edn. (1987) at p. 230 under the heading “Rights of Coparceners” it is said thus: “The following are the rights of a coparcener.—(1) Right by birth, (2) Right of survivorship, (3) Right to partition, (4) Right to joint possession and enjoyment, (5) Right to restrain unauthorised acts, (6) Right of alienation, (7) Right to accounts, and (8) Right to make self-acquisition.” While dealing with “Right by Birth” learned author says thus: “Every coparcener gets an interest by birth in the coparcenary property. This right by birth relates back to the date of conception. This, however, must not be held to negative the position that coparcenary property may itself come into existence after the birth of the coparcener concerned.”

While dealing with right of survivorship, it is said thus:

“The system of a joint family with its incident of succession by survivorship is a peculiarity of the Hindu law. In such a family no member has any definite share and his death or somehow ceasing to be a member of the family causes no change in the joint status of the family. Where a coparcener dies without male issue his interest in the joint family property passes to the other coparceners by survivorship and not by succession to his own heir. Even where a coparcener becomes afflicted with lunacy subsequent to his birth, he does not lose his status as a coparcener which he has acquired by his birth, and although his lunacy may under the Hindu law disqualify him from demanding a share in a partition in his family, yet where all the other coparceners die and he becomes the sole surviving member of the coparcenary, he takes the whole joint family property by survivorship, and becomes a fresh stock of descent to the exclusion of the daughter of the last predeceased coparcener, a case of leprosy of the last surviving coparcener. The beneficial interest of each coparcener is liable to fluctuation, increasing by the death of another coparcener and decreasing by the birth of a new coparcener.”

Therefore, it is now settled that a member of a coparcenary acquires a right in the property by birth. His share may fluctuate from time to time but his right by way of survivorship in coparcenary property in Mitakshara law is a settled proposition.
(emphasis supplied)”

38. In Rohit Chauhan v. Surinder Singh & Ors., (2013) 9 SCC 419, the concept of coparcenary of sharing equally with others and no definite share, was discussed thus:

“11. We have bestowed our consideration to the rival submissions and we find substance in the submission of Mr Rao. In our opinion coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. We are further of the opinion that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.”
(emphasis supplied)”

39. A similar view was taken in Thamma Venkata Subramma (dead) by LR v. Thamnma Ratamma & Ors., (1987) 3 SCC 294, that the share is not defined in coparcenary. It keeps on fluctuating on death and birth in the family.

40. It is only on actual partition a coparcener becomes entitled to a definite share. The interest of a coparcener is called “undivided coparcenary interest,” which remains undivided as held by the Privy Council in Katama Natchiar v. Srimat Rajah Moottoo Vijaya Raganadha Bodha Gooroo Swamy Periya Odaya Taver, (1863) 9 MIA 543.

In Shankara Cooperative Housing Society Ltd. v. M. Prabhakar & Ors., (2011) 5 SCC 607, it was observed that coparcenary be collective ownership. If a suit for recovery of property is filed, it is for the benefit of all co­owners. The position of ownership of co­ownership property indicates a change when actual division takes place, and co­owner’s share becomes identifiable. In Shankara Cooperative, it was observed:

“85. Shri Ranjit Kumar, learned Senior Counsel, contends that the writ petition was filed by one of the co-owners of late Mandal Buchaiah and judgment and order passed would not bind the other parties. We cannot agree. It is a settled law that no co- owner has a definite right, title and interest in any particular item or portion thereof. On the other hand, he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu law by all the coparceners. Our conclusion is fortified by the view expressed by this Court in A. Viswanatha Pillai v. Tahsildar (LA), (1991) 4 SCC 17 in which this Court observed: (SCC p. 21, para 2)

“2. … It is settled law that one of the co-owners can file a suit and recover the property against strangers and the decree would enure to all the co-owners. It is equally settled law that no co-owner has a definite right, title and interest in any particular item or a portion thereof. On the other hand he has right, title and interest in every part and parcel of the joint property or coparcenary under Hindu law by all the coparceners. In Kanta Goel v. B.P. Pathak, (1977) 2 SCC 814, this Court upheld an application by one of the co-owners for eviction of a tenant for personal occupation of the co-owners as being maintainable. The same view was reiterated in Sri Ram Pasricha v. Jagannath, (1976) 4 SCC 184, and Pal Singh v. Sunder Singh, (1989) 1 SCC

444. A co-owner is as much an owner of the entire property as a sole owner of the property. It is not correct to say that a co- owner’s property was not its own. He owns several parts of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner in the property. That position will undergo a change only when partition takes place and division was effected by metes and bounds. Therefore, a co- owner of the property is an owner of the property acquired but entitled to receive compensation pro rata.””
(emphasis supplied)

41. In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, (1986) 1 SCC 366, a 3­Judge Bench of this Court held that character of a joint family property does not change with the severance in the status of the joint family before an actual partition takes place. It was observed thus:

“14. …The character of any joint family property does not change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property.”

42. In Bhagwati Prasad Sah & Ors. v. Dulhin Rameshwari Kuer & Anr., AIR 1952 SC 72, it was held that once a coparcener separates himself from other members of the joint family, there is no presumption that rest of the coparceners continued to be joint, it would be a question of fact in each case. Following discussion was made:

“7. x x x The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but …… where it is admitted that one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the plaintiff’s side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief….”

In Ref. Unobstructed and obstructed heritage

43. In Mitakshara coparcenary, there is unobstructed heritage, i.e., apratibandha daya and obstructed heritage i.e., sapratibandha daya. When right is created by birth is called unobstructed heritage. At the same time, the birthright is acquired in the property of the father, grandfather, or great grandfather. In case a coparcener dies without leaving a male issue, right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. It is obstructed because the accrual of right to it is obstructed by the owner’s existence. It is only on his death that obstructed heritage takes place. Mulla on Hindu Law has discussed the concept thus:

“216. Obstructed and unobstructed heritage. – Mitakshara divides property into two classes, namely, apratibandha daya or unobstructed heritage, and sapratibandha daya or obstructed heritage.

(1) Property in which a person acquires an interest by birth is called unobstructed heritage, because the accrual of the right to it is not obstructed by the existence of the owner.

Thus, property inherited by a Hindu from his father, father’s father, or father’s father’s father, but not from his maternal grandfather, 1 is unobstructed heritage as regards his own male issue, i.e., his son, grandson, and great-grandson.2 His male issues acquire an interest in it from the moment of their birth. Their right to it arises from the mere fact of their birth in the family, and they become coparceners with their paternal ancestor in such property immediately on their birth, and in such cases ancestral property is unobstructed heritage.

Property, the right to which accrues not by birth but on the death of the last owner without leaving a male issue, is called obstructed heritage. It is called obstructed, because the accrual of right to it is obstructed by the existence of the owner.

Thus, property which devolves on parents, brothers, nephews, uncles, etc. upon the death of the last owner, is obstructed heritage. These relations do not take a vested interest in the property by birth. Their right to it arises for the first time on the death of the owner. Until then, they have a mere spes successionis, or a bare chance of succession to the property, contingent upon their surviving the owner.3

(2) Unobstructed heritage devolves by survivorship; obstructed heritage, by succession. There are, however, some cases in which obstructed heritage is also passed by survivorship.”

44. It is apparent that unobstructed heritage takes place by birth, and the obstructed heritage takes place after the death of the owner. It

1 Muhamad Hussain v. Babu Kishava Nandan Sahai, (1937) 64 IA 250 : (1937) All 655: 39 Bom LR 979: 169 IC 1: AIR 1937 PC 223; Om Prakash v. Sarvjit Singh, AIR 1995 MP 92 (property inherited from person other than father, father’s father, or father’s father’s father is obstructed heritage).

2 Sirtaji v. Algu Upadhiya, (1937) 12 Luck 237: 163 IC 935: AIR 1936 Ori 331.

3 Mitakshara, Ch.I, S 1, v 3. is significant to note that under section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner’s death. Thus, coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6. In Ref. Section 6 of the Act of 1956

45. Section 6 of the Act of 1956 before the substitution by Amendment Act, 2005 is reproduced hereunder:

“6. Devolution of interest in coparcenary property.—When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation I.—For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.”

46. The substituted provision of section 6 by the Amendment Act, 2005 is extracted hereunder:

“6. Devolution of interest in coparcenary property.-

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 , in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub- section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act, or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 , his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre- deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre- deceased daughter; and

(c) the share of the pre-deceased child of a pre- deceased son or of a pre- deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre- deceased child of the pre- deceased son or a pre- deceased daughter, as the case may be.

Explanation.- For the purposes of this sub- section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 , no court shall recognise any right to proceed against a son, grandson or great- grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great- grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 , nothing contained in this sub- section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great- grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.- For the purposes of clause (a), the expression” son”,” grandson” or” great- grandson” shall be deemed to refer to the son, grandson or great- grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 .

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.- For the purposes of this section” partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908 ) or partition effected by a decree of a court.’.”

47. Statement of Objects and Reasons behind the introduction of Bill is reproduced as under:

“STATEMENT OF OBJECTS AND REASONS

The Hindu Succession Act, 1956 has amended and codified the law relating to intestate succession among Hindus. The Act brought about changes in the law of succession among Hindus and gave rights which were till then unknown in relation to women’s property. However, it does not interfere with the special rights of those who are members of Hindu Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased male in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, inter alia, to persons governed by the Mitakshara and Dayabhaga schools and also to those governed previously by the Murumakkattayam, Aliyasantana and Nambudri laws. The Act applies to every person who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Pararthana or Arya Samaj; or to any person who is Buddhist, Jain or Sikh by religion; or to any other person who is not a Muslim, Christian, Parsi or Jew by religion. In the case of a testamentary disposition, this Act does not apply and the interest of the deceased is governed by the Indian Succession Act, 1925.

2. Section 6 of the Act deals with devolution of interest of a male hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakashara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution. having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.

3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein. It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.

4. The above proposals are based on the recommendations of the Law Commission of India as contained in its 174th Report on “Property Rights of Women: Proposed Reform under the Hindu Law”.

5. The Bill seeks to achieve the above objects. NEW DELHI; The 16th December, 2004.”

48. Section 6 deals with devolution of interest in coparcenary property of a joint Hindu family governed by the Mitakshara law. The originally enacted provision of section 6 excluded the rule of succession concerning Mitakshara coparcenary property. It provided the interest of a coparcener male Hindu who died after the commencement of Act of 1956, shall be governed by survivorship upon the surviving members of the coparcenary. The exception was provided that if the deceased had left surviving a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative, the interest of such coparcener shall devolve by testamentary or intestate succession, as the case may be, in order to ascertain the share of deceased coparcener, the partition has to be deemed before his death. Explanation 2 disentitled the separated person to make any claim in case of intestate succession.

49. Though the widow or daughter could claim a share, being a Class I heir in the property left by the deceased coparcener, and a widow was entitled, having a right to claim a share in the event of partition daughter was not treated as a coparcener. The goal of gender justice as constitutionally envisaged is achieved though belatedly, and the discrimination made is taken care of by substituting the provisions of section 6 by Amendment Act, 2005.

50. Concerning gender discrimination to a daughter who always remains a loving daughter, we quote Savita Samvedi (Ms) & Anr. v. Union of India & Ors., 1996 (2) SCC 380, thus:

“6. A common saying is worth pressing into service….

“A son is a son until he gets a wife. A daughter is a daughter throughout her life.”

7. …The eligibility of a married daughter must be placed on a par with an unmarried daughter (for she must have been once in that state), …..to claim the benefit…..

…(Otherwise, it would be) unfair, gender-biased and unreasonable, liable to be struck down under Article 14 of the Constitution. … It suffers from twin vices of gender discrimination inter se among women on account of marriage.”

51. The daughter is treated as a coparcener in the same manner as a son by birth with the same rights in coparcenary property and liabilities. However, the proviso of sub­section (1) contains a non­ obstante clause providing that nothing contained in the sub­section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20.12.2004.

52. It is apparent from the provisions of section 6 that the discrimination with the daughter has been done away with, and they have been provided equal treatment in the matter of inheritance with Mitakshara coparcenary. In several States viz., Andhra Pradesh, Tamil Nadu, Karnataka, and Maharashtra, the State Amendments in the Act of 1956 were made to extend equal rights to daughters in Hindu Mitakshara coparcenary property. An amendment was made on 30.7.1994 by the insertion of Section 6A by Karnataka Act 23 of 1994 in the Act of 1956. In­State of Andhra Pradesh, the amendment was made, w.e.f. 5.9.1985, Tamil Nadu w.e.f 25.3.1989 and Maharashtra w.e.f. 26.9.1994 by the addition of Section 29A in the Act of 1956. In Kerala, the Act was enacted in 1975.

53. Before the amendment, section 6 provided that on the death of a male Hindu, a coparcener’s interest in Mitakshara coparcenary shall devolve by survivorship upon the surviving members of the coparcenary under the uncodified Hindu law and not in accordance with the mode of succession provided under the Act of 1956. It was provided by the proviso to section 6, in case a male Hindu of Mitakshara coparcenary has left surviving a female relative of Class I heir or a male relative who claims through such female relative of Class I. The Schedule containing categories of Class I heirs is extracted hereunder:

“THE SCHEDULE
(See section 8)

HEIRS IN CLASS I AND CLASS II Class I

Son, daughter, widow; mother; son of a pre-deceased son; daughter of a pre-deceased son, son of a pre-deceased daughter, daughter of a pre-deceased daughter; widow of a pre-deceased son, son of a pre- deceased son of a pre-deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre-deceased son of a pre- deceased son; [son of a pre-deceased daughter of a pre-deceased daughter, daughter of a pre-deceased daughter of a pre-deceased daughter, daughter of a pre-deceased son of a pre-deceased daughter, daughter of a pre-deceased daughter of a pre-deceased so.”

54. In view of the provisions contained in section 6 when a coparcener is survived by a female heir of Class I or male relative of such female, it was necessary to ascertain the share of the deceased, as such, a legal fiction was created. The Explanation I provided legal fiction of partition as if it had taken place immediately before his death, notwithstanding whether he had the right to claim it or not. However, a separated Hindu could not claim an interest in the coparcenary based on intestacy in the interest left by the deceased.

55. The amended provisions of section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener “in her own right” and “in the same manner as the son.” Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property “as she would have had if she had been a son”. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 20.12.2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated.

56. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act.

57. The concept of retrospective and retroactive statute was stated by this Court in Darshan Singh etc. v. Ram Pal Singh & Anr., (1992 Supp. (1) SCC 191, thus:

“35. Mr Sachar relies on Thakur Gokulchand v. Parvin Kumari, AIR 1952 SC 231, Garikapatti Veeraya v. N. Subbiah Choudhury, AIR 1957 SC 540, Jose Da Costa v. Bascora Sadasiva Sinai Narcornim, (1976) 2 SCC 917, Govind Das v. ITO, (1976) 1 SCC
906, Henshall v. Porter, (1923) 2 KBD 193, United Provinces v. Mst. Atiga Begum, AIR 1941 FC 16, in support of his submission that the Amendment Act was not made retrospective by the legislature either expressly or by necessary implication as the Act itself expressly provided that it shall be deemed to have come into force on January 23, 1973; and therefore there would be no justification to giving it retrospective operation. The vested right to contest which was created on the alienation having taken place and which had been litigated in the court, argues Mr Sachar, could not be taken away. In other words, the vested right to contest in appeal was not affected by the Amendment Act. However, to appreciate this argument we have to analyse and distinguish between the two rights involved, namely, the right to contest and the right to appeal against lower court’s decision. Of these two rights, while the right to contest is a customary right, the right to appeal is always a creature of statute. The change of the forum for appeal by enactment may not affect the right of appeal itself. In the instant case we are concerned with the right to contest and not with the right to appeal as such. There is also no dispute as to the propositions of law regarding vested rights being not taken away by an enactment which is ex facie or by implication not retrospective. But merely because an Act envisages a past act or event in the sweep of its operation, it may not necessarily be said to be retrospective. Retrospective, according to Black’s Law Dictionary, means looking backward; contemplating what is past; having reference to a statute or things existing before the Act in question. Retrospective law, according to the same dictionary, means a law which looks backward or contemplates the past; one which is made to affect acts or facts occurring, or rights occurring, before it came into force. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. Retroactive statute means a statute which creates a new obligation on transactions or considerations already past or destroys or impairs vested rights.

36. In Halsbury’s Laws of England (4th edn., Vol. 44, at paragraph 921) we find:

“921. Meaning of ‘retrospective’.— It has been said that ‘retrospective’ is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; or is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing.”

37. We are inclined to take the view that in the instant case legislature looked back to January 23, 1973 and not beyond to put an end to the custom and merely because on that cut off date some contests were brought to abrupt end would not make the Amendment Act retrospective. In other words, it would not be retrospective merely because a part of the requisites for its action was drawn from a time antecedent to the Amendment Act coming into force. We are also of the view that while providing that “no person shall contest any alienation of immovable property whether ancestral or non-ancestral or any appointment of an heir to such property”, without preserving any right to contest such alienations or appointments as were made after the coming into force of the Principal Act and before the coming into force of the Amendment Act, the intention of the legislature was to cut off even the vested right; and that it was so by implication as well. There is no dispute as to the proposition that retrospective effect is not to be given to an Act unless, the legislature made it so by express words or necessary implication. But in the instant case it appears that this was the intention of the legislature. Similarly courts will construe a provision as conferring power to act retroactively when clear words are used. We find both the intention and language of the Amendment Act clear in these respects.”

58. In G. Sekar v. Geetha & Ors., (2009) 6 SCC 99 with respect to the operation of Amendment Act, 2005, it was observed that the same is prospective in nature and not retrospective thus:

“30. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. The High Court might have committed a mistake in opining that the operation of Section 3 of the 2005 Act is retrospective in character, but, for the reasons aforementioned, it does not make any difference. What should have been held was that although it is not retrospective in nature, its application is prospective.”

59. The decision in G. Sekar (supra) concerned with the provisions of section 23 of the Hindu Succession Act prior to its deletion, w.e.f. 9.9.2005. The question involved therein was the effect of the deletion by Amendment Act of 2005. The suit for partition of the residential dwelling house was not maintainable under section 23. In that context, the observations were made by this Court. In Sheela Devi (supra), the question was whether Section 8 of the Act of 1956 would apply or the law applicable prior to the Act of 1956.

60. Section 6(2) provides when the female Hindu shall hold the property to which she becomes entitled under section 6(1), she will be bound to follow rigors of coparcenary ownership, and can dispose of the property by testamentary mode.

61. With respect to a Hindu who dies after the commencement of the Amendment Act, 2005, as provided in section 6(3) his interest shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares which would have been allotted to his heirs had there been a partition. The daughter is to be allotted the same share as a son; even surviving child of pre­deceased daughter or son are given a share in case child has also died then surviving child of such pre­deceased child of a pre­deceased son or pre­deceased daughter would be allotted the same share, had they been alive at the time of deemed partition. Thus, there is a sea­change in substituted section 6. In case of death of coparcener after 9.9.2005, succession is not by survivorship but in accordance with section 6(3)(1). The Explanation to section 6(3) is the same as Explanation I to section 6 as originally enacted. Section 6(4) makes a daughter liable in the same manner as that of a son. The daughter, grand­daughter, or great­grand­daughter, as the case may be, is equally bound to follow the pious obligation under the Hindu Law to discharge any such debt. The proviso saves the right of the creditor with respect to the debt contracted before the commencement of Amendment Act, 2005. The provisions contained in section 6(4) also make it clear that provisions of section 6 are not retrospective as the rights and liabilities are both from the commencement of the Amendment Act.

62. The proviso to section 6(1) and section 6(5) saves any partition effected before 20.12.2004. However, Explanation to section 6(5) recognises partition effected by execution of a deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. Other forms of partition have not been recognised under the definition of ‘partition’ in the Explanation.

63. Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of section 6(1)(a) and 6(1) (b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in section 6(1), it is not necessary that there should be a living, coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment, i.e., 9.9.2005 with saving of past transactions as provided in the proviso to section 6(1) read with section 6(5).

64. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3).

In ref: Effect of enlargement of daughter’s rights

65. Under the proviso to section 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Section 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to section 6 as it stood before amendment.

66. As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said principle of administration of Mitakshara coparcenary carried forward in statutory provisions of section 6. Even if a coparcener had left behind female heir of Class I or a male claiming through such female Class I heir, there is no disruption of coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastric Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution.

67. There can be a sole surviving coparcener in a given case the property held by him is treated individual property till a son is born. In case there is a widow or daughter also, it would be treated as joint family property. If the son is adopted, he will become a coparcener. An adoption by a widow of a deceased coparcener related to the date of her husband’s death, subject to saving the alienations made in the intermittent period.

In Ref. Acquisition of Rights in Coparcenary Property

68. It is by birth that interest in the property is acquired. Devolution on the death of a coparcener before 1956 used to be only by survivorship. After 1956, women could also inherit in exigencies, mentioned in the proviso to unamended section 6. Now by legal fiction, daughters are treated as coparceners. No one is made a coparcener by devolution of interest. It is by virtue of birth or by way of adoption obviously within the permissible degrees; a person is to be treated as coparcener and not otherwise.

69. The argument raised that if the father or any other coparcener died before the Amendment Act, 2005, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to section 6 does not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in section 6, she has been made a coparcener. The precise declaration made in section 6 (1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9.9.2005 by section 6(3).

70. The decision in Bireswar Mookerji & Ors. v. Shib Chunder Roy (supra), was relied upon to contend that adoption is only of a male and not a female as held in Amarendra Man Singh Bhramarbar & Anr. v. Sanatan Singh & Ors., (supra), a male becomes a coparcener by birth or adoption. There is no dispute with the custom, which was prevalent earlier that there could be the adoption of a male child and not that of females. There is no dispute with the proposition that a coparcenary right accrued to males under the prevalent law by birth or adoption. In the same manner, right is accrued by birth to the daughter under the provisions of section 6. The legislature in section 6 used the term that a daughter becomes coparcener by birth. The claim based on birth is distinguishable and is different from modes of succession.

71. It was argued that in case Parliament intended that the incident of birth prior to 2005 would be sufficient to confer the status of a coparcener, Parliament would need not have enacted the proviso to section 6(1). When we read the provisions conjointly, when right is given to the daughter of a coparcener in the same manner as a son by birth, it became necessary to save the dispositions or alienations, including any partition or testamentary succession, which had taken place before 20.12.2004. A daughter can assert the right on and from 9.9.2005, and the proviso saves from invalidation above transactions.

72. It was argued that in the eventuality of the death of a father or other coparcener, the parties would have not only partitioned their assets but also acted in pursuance of such partition. However, partitions have been taken care of by the proviso to section 6(1) and 6(5). Parliament has not intended to upset all such transactions as specified in the proviso to section 6(1).

73. It was vehemently argued that if the daughter is given the right to be a coparcener by birth and deemed to become a coparcener at any point in the past, in the normal working of the law, uncertainty would be caused. In our opinion, no uncertainty is brought about by the provisions of section 6 as the law of Mitakshara coparcenary makes the share of surviving coparceners uncertain till actual partition takes place. Uncertainty in the right of share in a Mitakshara coparcenary is inhered in its underlying principles, and there is no question of upturning it when the daughter is treated like a son and is given the right by birth; to be exercised from a particular date, i.e., 9.9.2005. It is not to resurrect the past but recognising an antecedent event for conferral of rights, prospectively. There is no doubt about it that advancement brings about the enlargement of the size of the coparcenary and disabling it from treating the daughter unequally. Even otherwise, its size could be enlarged by the birth of a son also. By applying section 8, the joint possession was not repudiated by the fact that a female, whether a wife or daughter, inherited the share of coparcener under the proviso to original section 6. She was an equal member of the joint Hindu family and deemed statutory partition did not bring disruption of the coparcenary.

74. In Prakash v. Phulavati, father died in the year 1988, daughters filed a suit for partition in 1992, same was dismissed in 2007, entitlement was given to the daughters to a share on a notional partition under the proviso to section 6 in the share of the coparcener father. However, the High Court applied the amended provisions of section 6 to the pending proceedings and treated daughters equally with sons. As such, the matter travelled to this Court. It was held that the proviso is not retrospective. The requirement of partition being registered can have no application to statutory notional partition, on the opening of succession as per the unamended proviso to section 6, having regard to the nature of such partition, which is by operation of law. It was opined:

“17. The text of the amendment itself clearly provides that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. Section 6(3) talks of death after the amendment for its applicability.

In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. [Shyam Kumar v. Ram Kumar, (2001) 8 SCC 24, paras 22 to 27] In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.

18. The contention of the respondents that the amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20-12-2004. Notional partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation.

x x x

23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9- 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation.
x x x

27.2. In Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum (1978) 3 SCC 383, Shyama Devi v. Manju Shukla (1994) 6 SCC 342 and Anar Devi v. Parmeshwari Devi (2006) 8 SCC 656 cases this Court interpreted Explanation 1 to Section 6 (prior to the 2005 Amendment) of the Hindu Succession Act. It was held that the deeming provision referring to partition of the property immediately before the death of the coparcener was to be given due and full effect in view of settled principle of interpretation of a provision incorporating a deeming fiction. In Shyama Devi (supra) and Anar Devi (supra) cases, same view was followed.

27.3. In Vaishali Satish Ganorkar v. Satish Keshaorao Ganorkar, AIR 2012 Bom. 101, the Bombay High Court held that the amendment will not apply unless the daughter is born after the 2005 Amendment, but on this aspect a different view has been taken in the later larger Bench judgment [AIR 214 Bom 151]. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment.”

75. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living coparcener”, as laid down in Prakash v. Phulavati. In our opinion, the daughters should be living on 9.9.2005. In substituted section 6, the expression ‘daughter of a living coparcener’ has not been used. Right is given under section 6(1)(a) to the daughter by birth. Declaration of right based on the past event was made on 9.9.2005 and as provided in section 6(1(b), daughters by their birth, have the same rights in the coparcenary, and they are subject to the same liabilities as provided in section 6(1)(c). Any reference to the coparcener shall include a reference to the daughter of a coparcener. The provisions of section 6(1) leave no room to entertain the proposition that coparcener should be living on 9.9.2005 through whom the daughter is claiming. We are unable to be in unison with the effect of deemed partition for the reasons mentioned in the latter part.

76. In Mangammal v. T.B. Raju & Ors. (supra), the Court considered the provisions made in the State of Tamil Nadu, the State Government enacted the Hindu Succession (Tamil Nadu Amendment) Act, 1989, made effective from 25.3.1989, adding section 29­A in the Hindu Succession Act, 1956. Section 29A was held to be valid regarding succession by survivorship. Section 29A provided equal rights to daughters in coparcenary property. The provisions were more or less similar, except section 29A(iv) treated a married daughter differently. The provisions were not applicable to the daughters married before the date of commencement of Amendment Act, 1989. Thus, married daughters were not entitled to equal rights. That too, has been taken care of in section 6, as substituted by Act of 2005, and no discrimination is made against married daughters. In the said case, Mangammal got married in 1981, and Indira got married in or about 1984, i.e., before the 1989 Amendment. Therefore, it was held that because of section 29­A(iv) of the Amendment Act, the appellant could not institute a suit for partition and separate possession as they were not coparceners. The decisions in Prakash v. Phulavati and Danamma were referred, and it was opined that Prakash v. Phulavati would still hold the value of precedent for right of a daughter in ancestral property and only “living daughters of living coparceners” as on 9.9.2005 would be entitled to claim a share in the coparcenary property. In Mangammal, the Court opined thus:

“15. Moreover, under Section 29-A of the Act, the legislature has used the word “the daughter of a coparcener.” Here, the implication of such wordings mean both the coparcener as well as daughter should be alive to reap the benefits of this provision at the time of commencement of the amendment of 1989. The similar issue came up for the consideration before this Court in Prakash v. Phulavati, (2016) 2 SCC 36, wherein this Court while dealing with the identical matter held at para 23 as under (SCC p. 49)

“23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9- 2005 irrespective of when such daughters are born.”
(emphasis supplied)

16. It is pertinent to note here that recently, this Court in Danamma v. Amar, (2018) 3 SCC 343, dealt, inter alia, with the dispute of daughter’s right in the ancestral property. In the above case, father of the daughter died in 2001, yet court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who was born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash, (2016) 2 SCC 36, would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property.

17. Hence, without touching any other aspect in the present case, we are of the view that the appellants were not the coparceners in the Hindu joint family property in view of the 1989 amendment, hence, they had not been entitled to claim partition and separate possession at the very first instance. At the most, they could claim maintenance and marriage expenses if situation warranted.”

It is apparent that the question of living daughter of a living coparcener was not involved in the matter, once this Court held that the married daughters were not entitled to claim partition and separate possession as marriage had taken place prior to the enforcement of the 1989 amendment, as observed in para 17 quoted above. However, this Court opined that the decision in Prakash v. Phulavati, laying down that only living daughters of living coparceners would be entitled to claim a share in the ancestral property under section 6 of the Act of 1956. The opinion expressed cannot be accepted for the reasons mentioned above. Moreover, it was not necessary to go into the aforesaid question.

77. In Danamma, a Division Bench of this Court dealt with the interpretation of amended provisions of section 6. The decision in Anar Devi v. Parmeshwari Devi (supra) was relied upon. It was observed that the controversy concerning the interpretation of section 6 now stands settled with authoritative pronouncement in Prakash v. Phulavati which affirmed the view taken by the High Court as well as a Full Bench in Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari, AIR 2014 Bom. 151. In Danamma, the Court further opined:

“23. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognises the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and is well recognised. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-sections (1)(a) and (b).

25. Hence, it is clear that the right to partition has not been abrogated. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.

26. In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9 SCC 788, held that the rights of daughters in coparcenary property as per the amended Section 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

27. On facts, there is no dispute that the property which was the subject-matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property. In view of our aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since, Savadi died leaving behind two sons, two daughters and a widow, both the appellants would be entitled to 1/5th share each in the said property. The plaintiff (Respondent 1) is son of Arun Kumar (Defendant 1). Since, Arun Kumar will have 1/5th share, it would be divided into five shares on partition i.e. between Defendant 1 Arun Kumar, his wife Defendant 2, his two daughters Defendants 3 and 4 and son/plaintiff (Respondent 1). In this manner, Respondent 1-plaintiff would be entitled to 1/25th share in the property.”

78. In Danamma, it is pertinent to mention that Gurulingappa, propositus of a Hindu joint family and the father of living daughter coparcener died in 2001, before the Amendment Act, 2005 came into force, leaving behind two daughters, son and a widow. Daughters were given equal rights by this Court. We agree with certain observations made in paras 23 and 25 to 27 (supra) but find ourselves unable to agree with the earlier part approving the decision in Prakash v. Phulavati and the discussion with respect to the effect of the statutory partition. As a matter of fact, in substance, there is a divergence of opinion in Prakash v. Phulavati and Danamma with respect to the aspect of living daughter of a living coparcener. In the latter case, the proposition of the living daughter of a living coparcener was not dealt with specifically. However, the effect of reasons given in para 23 had been carried out to logical end by giving an equal share to the daughter.

In Ref. Partition and Effect of Statutory Fiction

79. The right to claim partition is a significant basic feature of the coparcenary, and a coparcener is one who can claim partition. The daughter has now become entitled to claim partition of coparcenary w.e.f. 9.9.2005, which is a vital change brought about by the statute.

A coparcener enjoys the right to seek severance of status. Under section 6(1) and 6(2), the rights of a daughter are pari passu with a son. In the eventuality of a partition, apart from sons and daughters, the wife of the coparcener is also entitled to an equal share. The right of the wife of a coparcener to claim her right in property is in no way taken away.

80. We deem it appropriate to refer to the decision in Hardeo Rai v. Sakuntala Devi & Ors., (2008) 7 SCC 46 laying down that when an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. After taking a definite share in the property, a coparcener becomes the owner of that share, and, as such, he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property. It was observed:

“22. For the purpose of assigning one’s interest in the property, it was not necessary that partition by metes and bounds amongst the coparceners must take place. When an intention is expressed to partition the coparcenary property, the share of each of the coparceners becomes clear and ascertainable. Once the share of a coparcener is determined, it ceases to be a coparcenary property. The parties in such an event would not possess the property as “joint tenants” but as “tenants-in-common”. The decision of this Court in SBI, (1969) 2 SCC 33, therefore, is not applicable to the present case.

23. Where a coparcener takes definite share in the property, he is owner of that share and as such he can alienate the same by sale or mortgage in the same manner as he can dispose of his separate property.”

81. It is settled proposition of law that without partition, only undivided share can be sold but not specific property, nor joint possession can be disrupted by such alienation. Whether the consent of other coparcener is required for sale or not, depends upon by which School of Mitakshara law, parties are governed, to say, in Benares School, there is a prohibition on the sale of property without the consent of other coparceners. The Court in the abovesaid decision made general observation but was not concerned with the aspect when the partition was completed, the effect of intervening events and effect of statutory provisions as to partition, as such, it cannot be said to be an authority as to provisions of section 6 as substituted and as to enlargement of the right by operation of law achieved thereunder. Shares of coparceners can undergo a change in coparcenary by birth and death unless and until the final division is made. The body of coparcenary is increased by the operation of law as daughters have been declared as a coparcener, full effect is required to be given to the same. The above decision cannot be said to be an authority for the question involved in the present matters.

82. In Man Singh (D) by LRs. v. Ram Kala (D) by LRs., AIR 2011 SC 1542, the question of devolution of interest in coparcenary property arose on the death of male Hindu leaving behind wife, son and three daughters, and determination of their shares. It was observed that until the disruption of joint family status occurs, the definite share cannot be claimed with certainty, and share cannot be predicated in joint and undivided property. The question of disruption of joint family status by a definite and unequivocal declaration of intention to separate himself from the family was also considered. The question in the present case is when the partition has not taken place whether the statutory fiction contained in the proviso to section 6 with respect to the determination of shares of a deceased coparcener and its devolution thereunder would disrupt coparcenary. The answer is in the negative. In Man Singh (supra), it was observed that the wife has a right to claim an equal share in the husband’s property as that of a son, and she can enjoy the share separately even from her husband thus:

“12. … Till disruption of joint family status takes place, neither coparcener nor the other heirs entitled to share in the joint family property can claim with certainty the exact share in that property. In the case of Appovier Alias Seetaramier v. Rama Subba Aiyan & Ors., (1866) 11 MIA 75, Lord Westbury speaking for the Judicial Committee (Privy Council) observed, ‘According to the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share.’

15. In Principles of Hindu Law by Mulla, Vol. I (17th Edition) as regards the right of wife, it is stated that a wife cannot herself demand a partition, but if a partition does take place between her husband and his sons, she is entitled (except in Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband (Article 315 at Page 506).”

83. In Girja Bai v. Sadashiv, AIR 1916 PC 104, Kawal Nain v. Prabhulal, AIR 1917 PC 39 and Ramalinga v. Narayana, AIR 1922 PC 201, it was laid that the institution of a suit for partition by a member of a joint family is a clear intimation of his intention to separate and the decisions indicate that there was consequential severance of joint status from the date when the suit was filed though there was an assertion of his right to separate by filing of the suit whether the consequential judgment is passed or not. However, we add a rider that if subsequently, the law confers a right, or such other event takes place, its effect has to be worked out even after passing of the preliminary decree.

84. In Kedar Nath v. Ratan Singh, (1910) 37 IA 161 and Palani Ammal v. Muthuvenkatachala, AIR 1925 PC 49, it was observed that if the suit is withdrawn before trial and passing of the decree, the plaintiff ultimately has not chosen to go for separation. It was laid down that there was no severance of the joint status of the family by filing of the suit.

85. In Joala Prasad Singh v. Chanderjet Kuer, AIR 1938 Pat 278, it was held that the filing of a suit is a shred of strong evidence, but not conclusive evidence of an intention to separate. However, in our opinion, the intention to separate need not be confused with the change of rights during the pendency of the suit, which has to be given full effect, to do complete justice.

86. In Chokalingam v. Muthukaruppan, AIR 1938 Mad 849, it was laid down that even a decree passed by consent does not affect a severance; it had no validity if its terms were not executed and the members continue to live together having abandoned their decision to separate.

87. In Mukund Dharman Bhoir & Ors. v. Balkrishna Padmanji & Ors., AIR 1927 PC 224, a distinction was made between severance of the joint status, which is a matter of individual decision and the division of the property where the allotment of shares may be effected by private arrangements, by arbitrators or as a last resort, by the Court. It was observed:

“In the first place, there is separation, which means the severance of the status of jointness. That is matter of individual volition; and it must be shown that an intention to become divided has been clearly and unequivocally expressed, it may be by explicit declaration or by conduct.

Secondly, there is the partition or division of the joint estate, comprising the allotment of shares, which may be effected by different methods.”

88. In Palani Ammal (supra), Ramabadra v. Gopalaswami, AIR 1931 Mad 404 and Gangabai v. Punau Rajwa, AIR 1956 Nag 261, it was laid down that joint family does not get disrupted merely by ascertainment of the shares of the coparcener. In order to constitute a partition, the shares should be defined with the intention of an immediate separation.

89. In Poornandachi v. Gopalasami, AIR 1936 PC 281, only one of the members was given the share by way of instrument of partition. It was also provided that the rest of the property was to remain joint. It was held that there was no partition between the other members. In I.T. Officer, Calicut v. N.K. Sarada Thampatty, AIR 1991 SC 2035, it was held that if a preliminary decree for partition is passed, it will not amount to a partition unless an actual physical partition is carried out pursuant to a final decree.

90. In S. Sai Reddy v. S. Narayana Reddy & Ors. (1991) 3 SCC 647, a suit for partition, was filed. A preliminary decree determining the shares was passed. The final decree was yet to be passed. It was observed that unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. A preliminary decree does not bring about the final partition. For, pending the final decree, the shares themselves are liable to be varied on account of the intervening events, and the preliminary decree does not bring about any irreversible situation. The concept of partition that the legislature had in mind could not be equated with a mere severance of the status of the joint family, which could be effected by an expression of a mere desire by a family member to do so. The benefit of the provision of section 29A could not have been denied to women whose daughters were entitled to seek shares equally with sons in the family. In S. Sai Reddy (supra), it was held:

“7. The question that falls for our consideration is whether the preliminary decree has the effect of depriving respondents 2 to 5 of the benefits of the amendment. The learned counsel placed reliance on clause (iv) of Section 29-A to support his contention that it does. Clause (ii) of the section provides that a daughter shall be allotted share like a son in the same manner treating her to be a son at the partition of the joint family property. However, the legislature was conscious that prior to the enforcement of the amending Act, partitions will already have taken place in some families and arrangements with regard to the disposition of the properties would have been made and marriage expenses would have been incurred etc. The legislature, therefore, did not want to unsettle the settled positions. Hence, it enacted clause (iv) providing that clause (ii) would not apply to a daughter married prior to the partition or to a partition which had already been effected before the commencement of the amending Act. Thus if prior to the partition of family property a daughter had been married, she was disentitled to any share in the property. Similarly, if the partition had been effected before September 5, 1985 the date on which the amending Act came into force, the daughter even though unmarried was not given a share in the family property. The crucial question, however, is as to when a partition can be said to have been effected for the purposes of the amended provision. A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the Court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefitting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits.

8. Hence, in our opinion, the High Court has rightly held that since the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29-A was not attracted in the present case and the respondent-daughters were entitled to their share in the family property.”
(emphasis supplied)

91. In Prema v. Nanje Gowda, AIR 2011 SC 2077, insertion of section 6A by the amendment made by the State of Karnataka in the Hindu Succession Act, 1956, was considered. Equal rights were given to the daughter in coparcenary property in a suit for partition. A preliminary decree was passed. Amendment in the Act was made during the final decree proceedings. It was held that the discrimination practiced against the unmarried daughter was removed. Unmarried daughters had equal rights in the coparcenary property. The amendment’s effect was that the unmarried daughter could claim an equal share in the property in terms of section 6A inserted in Karnataka. In Prema (supra), the Court opined:

“11. … in R. Gurubasaviah v. Rumale Karibasappa and others, AIR 1955 Mysore 6, Parshuram Rajaram Tiwari v. Hirabai Rajaram Tiwari, AIR 1957 Bombay 59 and Jadunath Roy and others v. Parameswar Mullick and others, AIR 1940 PC 11, and held that if after passing of preliminary decree in a partition suit but before passing of final decree, there has been enlargement or diminution of the shares of the parties or their rights have been altered by statutory amendment, the Court is duty-bound to decide the matter and pass final decree keeping in view of the changed scenario.”

“14. We may add that by virtue of the preliminary decree passed by the trial court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before the conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court seized with the final decree proceedings is not only entitled but is duty-bound to take notice of such change and pass appropriate order…”
(emphasis supplied)

It was held that if after passing of a preliminary decree in a partition suit but before passing of the final decree, there has been enlargement or diminution of the shares of the parties or their rights have been altered by statutory amendment; the Court is duty­bound to decide the matter and pass final decree keeping in view the changed scenario. In Prema (supra), the Court further opined:

“20. In our view, neither of the aforesaid three judgments can be read as laying down a proposition of law that in a partition suit, preliminary decree cannot be varied in the final decree proceedings despite amendment of the law governing the parties by which the discrimination practiced against unmarried daughter was removed and the statute was brought in conformity with Articles 14 and 15 of the Constitution. We are further of the view that the ratio of Phoolchand v. Gopal Lal, (AIR 1967 SC 1470) (supra) and S. Sai Reddy v. S. Narayana Reddy, (1991 AIR SCW 488) (supra) has direct bearing on this case and the trial court and the High Court committed serious error by dismissing the application filed by the appellant for grant of equal share in the suit property in terms of Section 6A of the Karnataka Act No.23 of 1994.”

It was laid down that by the change of law, the share of daughter can be enlarged even after passing a preliminary decree, the effect can be given to in final decree proceedings.

92. In Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr., (supra), this Court considered the amendment made in section 6 of the Hindu Succession Act in 2005 and held that the right of a daughter in coparcenary property is not lost bypassing of a preliminary decree for partition before stipulated date i.e., 20th December, 2004. A partition suit does not stand disposed of bypassing a preliminary decree. Relying inter alia, on S. Sai Reddy (supra), it was held that the preliminary decree can be amended in order to fully recognise the rights of a daughter:

“16. The legal position is settled that partition of a joint Hindu family can be effected by various modes, inter alia, two of these modes are (one) by a registered instrument of a partition and (two) by a decree of the Court. In the present case, admittedly, the partition has not been effected before 20-12-2004 either by a registered instrument of partition or by a decree of the Court. The only stage that has reached in the suit for partition filed by Respondent 1 is the determination of shares vide preliminary decree dated 19-3-1999, which came to be amended on 27-9-2003 and the receipt of the report of the Commissioner.

17. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of by passing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation. We are fortified in our view by a three-Judge Bench decision of this Court in Phoolchand & Anr. v. Gopal Lal, AIR 1967 SC 1470, wherein this Court stated as follows:

“We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. … So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the Court can and should do so; … there is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility. … for it must not be forgotten that the suit is not over till the final decree is passed and the Court has jurisdiction to decide all disputes that may arise after the preliminary decree, particularly in a partition suit due to deaths of some of the parties. … a second preliminary decree can be passed in partition suits by which the shares allotted in the preliminary decree already passed can be amended and if there is dispute between surviving parties in that behalf and that dispute is decided the decision amounts to a decree…..”

19. The above legal position is wholly and squarely applicable to the present case. It surprises us that the High Court was not apprised of the decisions of this Court in Phoolchand, (AIR 1967 SC 1470) and S. Sai Reddy, (1991 AIR SCW 488). High Court considered the matter as follows:

“ x x x.”

20. The High Court was clearly in error in not properly appreciating the scope of Order XX Rule 18 of CPC. In a suit for partition of immovable property, if such property is not assessed to the payment of revenue to the Government, ordinarily passing of a preliminary decree declaring the share of the parties may be required. The Court would thereafter proceed for preparation of final decree. In Phoolchand, this Court has stated the legal position that CPC creates no impediment for even more than one preliminary decree if after passing of the preliminary decree events have taken place necessitating the readjustment of shares as declared in the preliminary decree. The Court has always power to revise the preliminary decree or pass another preliminary decree if the situation in the changed circumstances so demand. A suit for partition continues after the passing of the preliminary decree and the proceedings in the suit get extinguished only on passing of the final decree. It is not correct statement of law that once a preliminary decree has been passed, it is not capable of modification. It needs no emphasis that the rights of the parties in a partition suit should be settled once for all in that suit alone and no other proceedings.

21. Section 97 of C.P.C. that provides that where any party aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree does not create any hindrance or obstruction in the power of the Court to modify, amend or alter the preliminary decree or pass another preliminary decree if the changed circumstances so require.

22. It is true that final decree is always required to be in conformity with the preliminary decree but that does not mean that a preliminary decree, before the final decree is passed, cannot be altered or amended or modified by the trial court in the event of changed or supervening circumstances even if no appeal has been preferred from such preliminary decree.”
(emphasis supplied)

The effect of the legislative provision concerning partition was considered, and it was held that a preliminary decree merely declares the shares and on which law confers equal rights upon the daughter that is required to be recognised.

93. The concept of partition and its effect was considered by this Court in Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna and Ors., (2009) 9 SCC 689 thus:

“The issue

5. “Partition” is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty.

6. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. “Separation of share” is a species of “partition”. When all co- owners get separated, it is a partition. Separation of share(s) refers to a division where only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother.

***

18. The following principles emerge from the above discussion regarding partition suits:

18.3. As the declaration of rights or shares is only the first stage in a suit for partition, a preliminary decree does not have the effect of disposing of the suit. The suit continues to be pending until partition, that is, division by metes and bounds takes place by passing a final decree. An application requesting the Court to take necessary steps to draw up a final decree effecting a division in terms of the preliminary decree, is neither an application for execution (falling under Article 136 of the Limitation Act) nor an application seeking a fresh relief (falling under Article 137 of the Limitation Act). It is only a reminder to the Court to do its duty to appoint a Commissioner, get a report, and draw a final decree in the pending suit so that the suit is taken to its logical conclusion.

20. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the Court. In fact, several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree.”
(emphasis supplied)

94. In Laxmi Narayan Guin & Ors. v. Niranjan Modak, (1985) 1 SCC 270, it was laid down that change in law during the pendency of the appeal has to be taken into consideration thus:

“9. That a change in the law during the pendency of an appeal has to be taken into account and will govern the rights of the parties was laid down by this Court in Ram Sarup v. Munshi, AIR 1963 SC 553 which was followed by this Court in Mula v. Godhu, (1969) 2 SCC 653. We may point out that in Dayawati v. Inderjit, AIR 1966 SC 1423 this Court observed:

“If the new law speaks in language, which, expressly or by clear intendment, takes in even pending matters, the Court of trial as well as the court of appeal must have regard to an intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance.”

Reference may also be made to the decision of this Court in Amarjit Kaur v. Pritam Singh, (1974) 2 SCC 363 where effect was given to a change in the law during the pendency of an appeal, relying on the proposition formulated as long ago as Kristnama Chariar v. Mangammal, ILR (1902) 26 Mad 91 (FB) by Bhashyam Ayyangar, J., that the hearing of an appeal was, under the processual law of this country, in the nature of a re-hearing of the suit. In Amarjit Kaur, (1974) 2 SCC 363 this Court referred also to Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri, AIR 1941 FC 5 in which the Federal Court had laid down that once a decree passed by a court had been appealed against the matter became sub judice again and thereafter the appellate court acquired seisin of the whole case, except that for certain purposes, for example, execution, the decree was regarded as final and the Court below retained jurisdiction.”

95. In United Bank of India, Calcutta v. Abhijit Tea Co. Pvt. Ltd. & Ors., AIR 2000 SC 2957, with respect to change in law during the pendency of proceedings, it was observed:

“20. Now, it is well settled that it is the duty of a court, whether it is trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same. (See G.P. Singh: Interpretation of Statutes, 7th Edn., p. 406). If, while a suit is pending, a law like the 1993 Act that the Civil Court shall not decide the suit, is passed, the Civil Court is bound to take judicial notice of the statute and hold that the suit — even after its remand — cannot be disposed of by it.”

96. In Gurupad Khandappa Magdum (supra), the question of Explanation I to section 6 of the Hindu Succession Act, 1956 came up for consideration with respect to the determination of widow’s interest in the coparcenary property. Court held that a widow’s share in the coparcenary property must be ascertained by adding the share to which she is entitled at a notional partition during her husband’s lifetime and the share she would have obtained in her husband’s interest upon his death. The first step is to ascertain the share of the deceased in the coparcenary property that would be worked out ultimately, and that shall be deemed to be the share in the property that should have been allotted to the deceased. What is therefore required to be assumed is that a partition had, in fact, taken place between the deceased and his coparceners immediately before his death. The assumption must permeate the entire process of ascertainment of the ultimate share of the heirs. All the consequences must be taken to a logical end. It was opined:

“13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant’s share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener “shall be deemed to be” the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one’s imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.”

The only question involved in the aforesaid matter was with respect to the Explanation of section 6 and the determination of the widow’s share. In that case, the question was not of fluctuation in the coparcenary body by a legal provision or otherwise. Everything remained static. No doubt about it, the share of the deceased has to be worked out as per the statutory fiction of partition created. However, in case of change of body of the coparceners by a legal provision or otherwise, unless and until the actual partition is finally worked out, rights have to be recognised as they exist at the time of the final decree. It is only the share of the deceased coparcener, and his heirs are ascertained under the Explanation to section 6 and not that of other coparceners, which keep on changing with birth and death.

97. In Anar Devi & Ors. v. Parmeshwari Devi & Ors (supra), the decision in Gurupad (supra) was considered, and it was held that when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative claiming through such female relative, his undivided interest is not devolved by survivorship but upon his heir by intestate succession thus:

“8. According to the learned author, at page 253, the undivided interest “of the deceased coparcener for the purpose of giving effect to the rule laid down in the proviso, as already pointed out, is to be ascertained on the footing of a notional partition as of the date of his death. The determination of that share must depend on the number of persons who would have been entitled to a share in the coparcenary property if a partition had in fact taken place immediately before his death and such person would have to be ascertained according to the law of joint family and partition. The rules of Hindu law on the subject in force at the time of the death of the coparcener must, therefore, govern the question of ascertainment of the persons who would have been entitled to a share on the notional partition”.

11. Thus we hold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and i.e. that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.”

In Anar Devi (supra), the question of enlargement of right by a legal provision or otherwise change in the coparcener’s share was not involved. The decision cannot help the cause set up of partition created by statutory fiction. Statutory fiction is with respect to the extent of the share of deceased coparcener in exigency provided in the proviso to section 6. Co­parcenary or HUF, as the case may be, does not come to an end by statutory fiction. Disruption of coparcenary by statutory fiction takes place, is not the proposition laid down in the aforesaid decision.

98. In Puttrangamma & Ors. v. M.S. Rangamma & Ors., AIR 1968 SC 1018, this Court considered the doctrine of Hindu law, separation in status by a definite, unequivocal and unilateral declaration thus:

“(4) It is now a settled doctrine of Hindu Law that a member of a joint Hindu family can bring about his separation in status by a definite, unequivocal and unilateral declaration of his intention to separate himself from the family and enjoy his share in severalty. There does not need to be an agreement between all the coparceners for the disruption of the joint status. It is immaterial in such a case whether the other coparceners give their assent to the separation or not. The jural basis of this doctrine has been expounded by the early writers of Hindu Law. The relevant portion of the commentary of Vijnaneswara states as follows:

“x x x x x “

[And thus though the mother is having her menstrual courses (has not lost the capacity to bear children) and the father has attachment and does not desire a partition, yet by the will (or desire) of the son a partition of the grandfather’s wealth does take place]”

Saraswathi Vilasa, placitum 28 states:

[From this it is known that without any speech (or Explanation) even by means of a determination (or resolution) only, partition is effected, just an appointed daughter is constituted by mere intention without speech.]

Viramitrodaya of Mitra Misra (Ch. 11. pl. 23) is to the following effect:

[Here too there is no distinction between a partition during the lifetime of the father or after his death and partition at the desire of the sons may take place or even by the desire (or at the will) of a single (coparcener)].

Vyavahara Mayukha of Nilakantabhatta also states:

[Even in the absence of any common (joint family) property, severance does indeed result by the mere declaration ‘I am separate from thee’ because severance is a particular state (or condition) of the mind and the declaration is merely a manifestation of this mental state (or condition).]” (Ch. IV, S. III-I).

Emphasis is laid on the “budhivisesha” (particular state or condition of the mind) as the decisive factor in producing a severance in status and the declaration is stated to be merely “abhivyanjika” or manifestation which might vary according to circumstances. In Suraj Narain v. Iqbal Narain, (1913) ILR 35 All 80 the Judicial Committee made the following categorical statement of the legal position:

“A definite and unambiguous indication by one member of intention to separate himself and to enjoy his share in severalty may amount to separation. But to have that effect the intention must be unequivocal and clearly expressed … Suraj Narain alleged that he separated a few months later; there is, however, no writing in support of his allegation, nothing to show that at that time he gave expression to an unambiguous intention on his part to cut himself off from the joint undivided family.”

In a later case — Girja Bai v. Sadashiv Dhundiraj, ILR 42 Cal 1031, the Judicial Committee examined the relevant texts of Hindu Law and referred to the well-marked distinction that exists in Hindu law between a severance in status so far as the separating member is concerned and a de facto division into specific shares of the property held until then jointly, and laid down the law as follows:

“One is a matter of individual decision, the desire on the part of any one member to sever himself from the joint family and to enjoy his hitherto undefined or unspecified share separately from the others without being subject to the obligations which arise from the joint status; whilst the other is the natural resultant from his decision, the division and separation of his share which may be arrived at either by private agreement among the parties, or on failure of that, by the intervention of the Court. Once the decision has been unequivocally expressed and clearly intimated to his co- sharers, his right to obtain and possess the share to which he admittedly has a title is unimpeachable; neither the co-sharers can question it nor can the Court examine his conscience to find out whether his reasons for separation were well-founded or sufficient; the Court has simply to give effect to his right to have his share allocated separately from the others.”

In Syed Kasam v. Jorawar Singh, ILR 50 Cal 84, Viscount Cave, in delivering the judgment of the Judicial Committee, observed:

“It is settled law that in the case of a joint Hindu family subject to the law of the Mitakshara, a severance of estate is effected by an unequivocal declaration on the part of one of the joint holders of his intention to hold his share separately, even though no actual division takes place; and the commencement of a suit for partition has been held to be sufficient to effect a severance in interest even before decree.”
(emphasis supplied)

99. Once the constitution of coparcenary changes by birth or death, shares have to be worked out at the time of actual partition. The shares will have to be determined in changed scenario. The severance of status cannot come in the way to give effect to statutory provision and change by subsequent event. The statutory fiction of partition is far short of actual partition, it does not bring about the disruption of the joint family or that of coparcenary is a settled proposition of law. For the reasons mentioned above, we are also of the opinion that mere severance of status by way of filing a suit does not bring about the partition and till the date of the final decree, change in law, and changes due to the subsequent event can be taken into consideration.

100. As to the effect of legal fiction, reliance was placed on Commissioner of Income Tax, Delhi v. S Teja Singh, AIR 1959 SC 352, in which it was laid down that in construing the scope of legal fiction, it would be proper and even necessary to assume all those facts on which alone the fiction can operate. There is no dispute with the aforesaid proposition, but the purpose of fiction is limited so as to work out the extent of the share of the deceased at the time of his death, and not to affect the actual partition in case it has not been done by metes and bounds.

101. When the proviso to unamended section 6 of the Act of 1956 came into operation and the share of the deceased coparcener was required to be ascertained, a deemed partition was assumed in the lifetime of the deceased immediately before his death. Such a concept of notional partition was employed so as to give effect to Explanation to section 6. The fiction of notional partition was meant for an aforesaid specific purpose. It was not to bring about the real partition. Neither did it affect the severance of interest nor demarcated the interest of surviving coparceners or of the other family members, if any, entitled to a share in the event of partition but could not have claimed it. The entire partition of the coparcenary is not provided by deemed fiction; otherwise, coparcenary could not have continued which is by birth, and the death of one coparcener would have brought an end to it. Legal fiction is only for a purpose it serves, and it cannot be extended beyond was held in State of Travancore­Cochin & Ors. v. Shanmugha Vilas Cashew Nut Factory & Ors., (1954) SCR 53; Bengal Immunity Co. Ltd. v. State of Bihar & Ors., AIR 1955 SC 661; and Controller of Estate Duty v. Smt. S. Harish Chandra, (1987) 167 ITR 230. A legal fiction created in law cannot be stretched beyond the purpose for which it has been created, was held in Mancheri Puthusseri Ahmed (supra) thus:

“8. xxx In the first place the section creates a legal fiction. Therefore, the express words of the section have to be given their full meaning and play in order to find out whether the legal fiction contemplated by this express provision of the statute has arisen or not in the facts of the case. Rule of construction of provisions creating legal fictions is well settled. In interpreting a provision creating a legal fiction the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries to the giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created, or beyond the language of the section by which it is created. It cannot also be extended by importing another fiction. x x x”

102. It is apparent that the right of a widow to obtain an equal share in the event of partition with the son was not deprived under old section 6. Unamended Section 6 provided that the interest of a coparcener could be disposed of by testamentary or intestate succession on happening of exigency under the proviso. Under the old law before 1956 devise by a coparcener of Hindu Mitakshara family property was wholly invalid. Section 30 of the Act of 1956 provided competence for a male Hindu in Mitakshara coparcenary to dispose of his interest in the coparcenary property by a testament.

103. In Gyarsi Bai v. Dhansukh Lal, AIR 1965 SC 1055, it was held that the shares of all coparceners should be ascertained in order to work out the share of the deceased coparcener, partition to be assumed and given effect to when the question of allotment comes, but this Court did not lay down in the said decision that the deeming fiction and notional partition brought an end to the joint family or coparcenary.

104. In case coparcenary is continued, and later on between the surviving coparceners partition takes place, it would be necessary to find out the extent of the share of the deceased coparcener. That has to be worked out with reference to the property which was available at the time of death of deceased coparcener whose share devolved as per the proviso and Explanation I to section 6 as in case of intestate succession.

105. In Hari Chand Roach v. Hem Chand & Ors., (2010) 14 SCC 294, a widow inherited the estate of her husband and had an undivided interest in the property. The subsequent family arrangement was entered into whereby she exchanged her share for another property. This Court held that though her share was definite, the interest continued undivided, and there was a further family arrangement that will have the effect of giving her disposition over the property in question, which was given to her in the subsequent family arrangement. It is apparent that under an undivided interest, as provided under section 6, the shares are definite, but the interest in the property can continue undivided.

106. In the instant case, the question is different. What has been recognised as partition by the legislation under section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of proviso to section 6 as discussed in Prakash v. Phulavati (supra) and Danamma (supra). If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.
In Ref. Section 6(5)

107. The Explanation to Section 6(5) provides that for the purposes of Section 6, ‘partition’ means effected by any registered partition deed or effected by a decree of a court. It is pertinent to mention that Explanation did not find place in the original Amendment Bill moved before the Rajya Sabha on 20.12.2004. The same was added subsequently. In the initial Note, it was mentioned that partition should be properly defined, leaving any arbitrary interpretation, and for all practical purposes, the partition should be evinced by a registered public document or have been affected by a decree of a court. In a case partition is oral, it should be supported by documentary evidence. Initially, it was proposed to recognise the oral partition also, in case the same is supported by contemporaneous documentary evidence. The intention was to avoid any sham or bogus transactions in order to defeat the rights of coparcener conferred upon daughters by the Amendment Act, 2005. In this regard, Note for Cabinet issued by the Legislative Department, Ministry of Law & Justice, Government of India, suggested as under:

“As regards sub section 5 of the proposed new section 6, the committee vide paragraph has recommended that the term “partition” should be properly defined, leaving any arbitrary interpretation. Partition for all practical purposes should be registered have been effected by a decree of the Court. In case where oral partition is recognised, be backed by proper documentary evidence. It is proposed to accept this recommendation and make suitable changes in the Bill.”

108. Learned Solicitor General argued that the requirement of a registered partition deed may be interpreted as the only directory and not mandatory in nature considering its purposes. However, any coparcener relying upon any such family arrangements or oral partition so arrived must prove the same by leading proper documentary evidence.

109. The Cabinet note made on 29.7.2005 with respect to ‘partition’ is quoted hereunder:

“5.2 In this connection it may be noted that the amendments made in the Hindu Succession Act, 1956 by the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu and the Kerala Joint Hindu Family System (Abolition) Act, 1975 will be superseded by any subsequent Central enactment containing provisions to the contrary as the Central legislation will prevail over the State enactments by virtue of operation of doctrine of repugnancy enunciated in article 254 of the Constitution. Innumerable settled transactions and partitions which have taken place hitherto will also become disturbed by the proposed course of action. Further, there could be heartburning from the majority of the Hindu population. In the circumstances, it is proposed that we may remove the distinction between married and unmarried daughters and at the same time clearly lay down that alienation or disposition of property made at any time before the 20th day of December, 2004, that is, the date on which the Hindu Succession (Amendment) Bill, 2004 was introduced in the Rajya Sabha will not be affected or invalidated. Consequential changes are also suggested in sub-section (5) of proposed section 6.”

110. Section 6(5) as proposed in the original Bill of 2004 read thus:

“(5) Nothing contained in this section shall apply to a partition, which has been effected before the commencement of the Hindu Succession (Amendment) Act, 2004.”

111. Shri R. Venkataramani, Amicus Curiae, argued that proviso to Section 6 is plain and clear. All dispositions, alienations, testamentary depositions, including partition effected prior to 20.12.2004, shall not be reopened. There may be a partition of coparcenary property, and they would have also acted in pursuance of such partition. There could be any number of instances where parties would have entered into family settlements or division of properties on the basis of respective shares or entitlement to succeed on a partition. In many of those cases, a simple mutation in revenue entries would have been considered as sufficient for severance of status. The Parliament did not intend to upset all such cases, complete transactions, and open them for a new order of succession. The partition effected merely to avoid any obligation under any law, for example, the law relating to taxation or land ceiling legislation, are not examples relevant for understanding the objects and scheme of Section 6. Therefore, the proviso to sub­Section (1) of Section 6 and sub­Section 5 of Section 6 is required to be given such meaning and extent to not dilute the relevance in the forward and future­looking scheme of Section 6. The past cases shall not be reopened for this purpose. He has relied upon Shashika Bai (supra).

112. Shri V.V.S. Rao, learned senior counsel appearing as Amicus Curiae, pointed out that under Section 6(5), as proposed in the Bill mentioned that nothing contained in the amended Section 6 should apply to a partition, which has been effected before the commencement of the Amendment Act. Following deliberation was made by the Committee:

“Deliberation by the Committee

35. During its deliberation on the Bill, the Committee pondered on the concept of ‘partition’ as referred to in the aforesaid sub section. When the Secretary (Legislative Department) was asked as to the validity of partition effected through oral means, he replied that it depends upon the facts of the particular case. The Secretary stated as below:

“Sub clause (5) (of the Bill) says that nothing contained in this section shall apply to a partition, which has been effected before the commencement of the Act. So, people may not have a chance of effecting registered partition or going to the court and getting it registered.”

36. Further, the Legal Secretary stated as below:

“…. under the present legal position, it is not necessary that a partition should be registered. There is no legal requirement. There can be oral partition also.”

General observation by the Committee

37. The Committee recommends that the term ‘partition’ should be properly defined leaving no scope for any arbitrary interpretation. Partition, for all practical purposes should be registered or should have been effected by a decree of the court. In cases, where oral partition is recognised, it should be backed by proper evidentiary support. Subject to above, clause 2 of the Bill is adopted.”

113. Shri V.V.S. Rao argued that the status of coparcener conferred on daughters cannot affect the partition made orally, and the explanation at the end of Section 6 was added after receiving report of the Parliamentary Committee. The partition may be effected orally and later on memorandum can be created for memory purposes. Such a document containing memorandum of partition is not required to be registered. The parties may settle their rights and enter into subsequent transactions based upon such a partition. It is not to unsettle the completed property transactions that had already taken place. The explanation should not be understood as invalidating all the documents or oral partition in respect of the coparcenary property. In case genuineness of such document is questioned, it has to be proved to the satisfaction of the Court. The saving of transactions would safeguard the genuine past transaction and prevent unrest in the family system. Similar proposal was made by the Law Commission of India.

114. The learned counsel, Shri Sridhar Potaraju, argued that ignoring statutory fiction of partition under proviso to section 6, which provision had been incorporated in 1956 and continued till 2005, is not warranted.

115. Ms. Anagha S. Desai, learned counsel, argued that in the absence of partition deed also, partition could be effected by metes and bounds, and if it is proved properly, the daughters will not open these concluded transactions of coparcenary property.

116. The intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may be set up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under Section 6(5).

117. How family settlement is effected was considered in Kale v. Deputy Director of Consolidation, (1976) 3 SCC 119, thus:

“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:

“(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

15. In Tek Bahadur Bhujil v. Debi Singh Bhujil, AIR 1966 SC 292, 295, it was pointed out by this Court that a family arrangement could be arrived at even orally and registration would be required only if it was reduced into writing. It was also held that a document which was no more than a memorandum of what had been agreed to did not require registration. This Court had observed thus:

“Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.””
(emphasis supplied)

It is settled law that family arrangements can be entered into to keep harmony in the family.

118. Reliance has been placed on Shripad Gajanan Suthankar v. Dattaram Kashinath Suthankar, (1974) 2 SCC 156, in which effect of adoption by a widow and its effect on partition and other alienation made before adoption was considered. , the following observations were made:

“11. Two crucial questions then arise. One-third share out of what? Should the gift by Mahadev of what was under the then circumstances his exclusive property be ignored in working out the one-third share? Two principles compete in this jurisdiction and judges have struck a fair balance between the two, animated by a sense of realism, impelled by desire to do equity and to avoid unsettling vested rights and concluded transactions, lest a legal fiction should by invading actual facts of life become an instrumentality of instability. Law and order are jurisprudential twins and this perspective has inarticulately informed judicial pronouncements in this branch of Hindu law.

18. We reach the end of the journey of precedents, ignoring as inessential other citations. The balance sheet is clear. The propositions that emerge are that:

(i) A widow’s adoption cannot be stultified by an anterior partition of the joint family and the adopted son can claim a share as if he were begotten and alive when the adoptive father breathed his last;

(ii) Nevertheless, the factum of partition is not wiped out by the later adoption;

(iii) Any disposition testamentary or inter vivos lawfully made antecedent to the adoption is immune to challenge by the adopted son;

(iv) Lawful alienation in this context means not necessarily for a family necessity but alienation made competently in accordance with law;

(v) A widow’s power of alienation is limited and if — and only if— the conditions set by the Hindu Law are fulfilled will the alienation bind a subsequently adopted son. So also alienation by the Karta of an undivided Hindu family or transfer by a coparcener governed by the Benares school;

(vi) Once partitioned validly, the share of a member of a Mitakshara Hindu family in which his own issue have no right by birth can be transferred by him at his will and such transfers, be they by will, gift or sale, bind the adopted son who comes later on the scene. Of course, the position of a void or voidable transfer by such a sharer may stand on a separate footing but we need not investigate it here.”
(emphasis supplied)

119. In Chinthamani Ammal v. Nandgopal Gounder, (2007) 4 SCC 163, it was observed that a plea of partition was required to be substantiated as under law, there is a presumption as to jointness. Even separate possession by co­sharers may not, by itself, lead to a presumption of partition.

120. In Rukhmabai v. Laxminarayan, AIR 1960 SC 335 and Mudigowda Gowdappa Sankh & Ors. v. Ramchandra Revgowda Sankh (dead) by his LRs. & Anr., AIR 1969 SC 1076, it was observed that prima facie a document expressing the intention to divide brings about a division in status, however, it is open to prove that the document was a sham or a nominal one and was not intended to be acted upon and executed for some ulterior purpose. The relations with the estate is the determining factor in the statement made in the document. The statutory requirement of substituted Section 6(5) is stricter to rule out unjust deprivation to the daughter of the coparcener’s right.

121. In Kalwa Devdattam v. Union of India, AIR 1964 SC 880, it was laid down that when a purported petition is proved to be a sham, the effect would be that the family is considered joint.

122. Earlier, an oral partition was permissible, and at the same time, the burden of proof remained on the person who asserted that there was a partition. It is also settled law that Cesser of Commonality is not conclusive proof of partition, merely by the reason that the members are separated in food and residence for the convenience, and separate residence at different places due to service or otherwise does not show separation. Several acts, though not conclusive proof of partition, may lead to that conclusion in conjunction with various other facts. Such as separate occupation of portions, division of the income of the joint property, definement of shares in the joint property in the revenue of land registration records, mutual transactions, as observed in Bhagwani v. Mohan Singh, AIR 1925 PC 132, and Digambar Patil v. Devram, AIR 1995 SC 1728.

123. There is a general presumption that every Hindu family is presumed to be joint unless the contrary is proved. It is open even if one coparcener has separated, to the non­separating members to remain joint and to enjoy as members of a joint family. No express agreement is required to remain joint. It may be inferred from how their family business was carried on after one coparcener was separated from them. Whether there was a separation of one coparcener from all other members of a joint family by a decree of partition, the decree alone should be looked at to determine the question was laid down in Palani Ammal (supra) and Girijanandini Devi & Ors. v. Bijendra Narain Choudhary, AIR 1967 SC 1124. In Palani Ammal (supra), it was held:

“…… It is also now beyond doubt that a member of such a joint family can separate himself from the other members of the joint family and is on separation entitled to have his share in the property of the joint family ascertained and partitioned off for him, and that the remaining coparceners, without any special agreement amongst themselves, may continue to be coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved….”

124. In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laid down that in case there are two coparcener brothers, it is not necessary that there would be a separation inter se family of the two brothers. The family of both the brothers may continue to be joint.

125. The severance of status may take place from the date of filing of a suit; however, a decree is necessary for working out the results of the same, and there may be a change of rights during the pendency of the suit for allotting definite shares till final decree is passed. There are cases in which partition can be reopened on the ground of fraud or mistake, etc. or on certain other permissible grounds. In appropriate cases, it can be reopened at the instance of minor also.

126. The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved.

127. A special definition of partition has been carved out in the explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of section 6, the intendment of legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the Court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigor of very heavy burden of proof which meet intendment of Explanation to Section 6(5). It has to be remembered that courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the Court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

128. The expression used in Explanation to Section 6(5) ‘partition effected by a decree of a court’ would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by Court. Even if partition is supported by a registered document it is necessary to prove it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected by a decree of a court, it can be recognized, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the Court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.

129. Resultantly, we answer the reference as under:

(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class­I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

130. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months.

In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision. Let the matters be placed before appropriate Bench for decision on merits.

…………………………….J.
(Arun Mishra)

…………………………….J.
(S. Abdul Nazeer)

…………………………….J.
(M.R. Shah)

New Delhi:
August 11, 2020.

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]]> https://bnblegal.com/landmark/vineeta-sharma-vs-rakesh-sharma-ors/feed/ 0 Ghan Shyam Das Gupta and Anr. Vs. Anant Kumar Sinha and Ors. https://bnblegal.com/landmark/ghan-shyam-das-gupta-and-anr-vs-anant-kumar-sinha-and-ors/ https://bnblegal.com/landmark/ghan-shyam-das-gupta-and-anr-vs-anant-kumar-sinha-and-ors/#respond Tue, 04 Aug 2020 05:15:42 +0000 https://bnblegal.com/?post_type=landmark&p=255745 IN SUPREME COURT OF INDIA GHAN SHYAM DAS GUPTA AND ANR. …PETITIONER Vs. ANANT KUMAR SINHA AND ORS. …RESPONDENT DATE OF JUDGMENT: 17/09/1991 BENCH: SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J) CITATION: 1991 AIR 2251 1991 SCR Supl. (1) 119 1991 SCC (4) 379 JT 1991 (4) 43 1991 SCALE (2)611 ACT: Constitution of India, […]

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]]> IN SUPREME COURT OF INDIA

GHAN SHYAM DAS GUPTA AND ANR. …PETITIONER
Vs.
ANANT KUMAR SINHA AND ORS. …RESPONDENT

DATE OF JUDGMENT: 17/09/1991

BENCH: SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J)

CITATION: 1991 AIR 2251 1991 SCR Supl. (1) 119 1991 SCC (4) 379 JT 1991 (4) 43 1991 SCALE (2)611

ACT:

Constitution of India, 1950: Article 226–Scope of —Jurisdiction–Exercise of—Whether justified when alternative remedy available. Civil Procedure Code, 1908: Order XXI, Rules 97-106– Execution of decree–Whether third party, claimant objector, entitled to remedy.

HEADNOTE:

The appellants, owners of the premises in question obtained a decree of eviction against the tenant, Respondent No. 7. While the decree was under challenge before the High Court, Respondent Nos. 1 to 5 approached the High Court under Art. 226 of the Constitution, claiming that, being members of Joint Hindu Family, alongwith the lather of Respondent No. 7, they were tenants in their own right under the appellants and were not bound by the decree, since they were not parties in the eviction case. The appellants denied the claim of independent right of the respondent Nos. 1 to 5 and alleged that they had been subsequently inducted in the premises as sub-tenants by respondent No. 7.

The High Court held that since the claim of the Respondent Nos. 1 to 5 was not examined and decided in the suit and the decree was passed against Respondent No. 7 only, they could not be evicted from the premises.

Allowing the appeal preferred by the landlord-appellants, this Court,

HELD: 1.1 The remedy provided under Art. 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions. The jurisdiction to issue a writ of certiorari is supervisory in nature and is not meant for correcting errors like appellate Court. [122 E-F]

State of Andhra Pradesh v. Chitra Venkata Rao, [1976] 1 SCR 521; Thansingh Nathmal & Ors. v.A. Mazid, [1964] 6 SCR 654 and M. Naina Mohammed v. K.A. Natarajan & Ors., [1976] 1 SCR 102, relied on.

1.2 The Civil Procedure Code contains elaborate and exhaustive provisions for dealing with executability of a decree in all its aspects. The numerous rules of order XXI of Civil Procedure Code take care of different situations, providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court. The remedy under the Code is of superior judicial quality than what is generally available under other statutes, and the judge, being entrusted exclusively with administration of justice, is expected to do better. It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting relief to a judgment-debtor or a claimant objector can be justified. Rules 97 to 106 of Order XXI envisage questions to be determined on the basis of evidence to be led by the parties and after the 1976 Amendment, the decision has been made appealable like a decree. [123C-E]

1.3 In the instant case, it was necessary to adjudicate upon the dispute between the parties and record a finding on the character of possession of Respondent Nos. 1 to 7 before proceeding to consider whether the decree is executable or not against them and having not done so, the High Court has seriously erred in law in allowing the writ petition filed by them. The decision on the disputed issue was dependent on the consideration of the evidence to be led by the parties, and while exercising the writ jurisdiction, the High Court was not expected to go into that question and ought not to have embarked upon a decision on merits, and should have refused to exercise the special jurisdiction on the ground of alternative remedy before the civil court. [122 B-D]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3656 of 1991.

From the Judgment and Order dated 5.12.1988 of the Allahabad High Court in Civil Misc. Writ Petition No. 1695 of 1986.

O.P. Rana and Girish Chandra for the Appellants.

B.D. Agarwal and R .D. Upadhyay for the Respondents.

The Judgment of the Court was delivered by

SHARMA, J. Special leave is granted.

2. This appeal is directed against the judgment of Allahabad High Court, allowing the writ petition of the respondents Nos. 1 to 5 under Article 226 of the Constitution, and directing that they shall not be evicted from the premises in dispute in pursuance of an eviction decree passed by the small causes court, Allahabad. The main question which arises for decision is whether in the facts and circumstances of the case the High Court was justified in entertaining the writ petition under Article 226 of the Constitution, and proceeding to issue the impugned direction.

3. The appellants are the owners of the premises in question which according to their case was in possession of Dr. K.C. Sinha as tenant. After his death his son Prabhas Kumar Sinha, respondent No. 7, continued in possession. The writ petitioners- respondents are the sons of the brothers of Dr. K.C. Sinha, and according to their case they being members of the joint Hindu Family along with Dr. K.C. Sinha are tenants in their own right under the appellants. The case of the appellants is that they were subsequently inducted in the premises as sub-tenants by Prabhas Kumar Sinha and did not have any independent right.

4. The eviction suit in the small causes court was filed by the appellants against Prabhas Kumar Sinha for his eviction, without impleading the writ petitioners, and the decree passed therein is under challenge by the judgmentdebtor Prabhas Kumar Sinha in revision before the High Court. In this background the respondents No. 1 to 5 approached the High Court under Article 226 of the Constitution, claiming that they, not being parties in the eviction case, are not bound by the decree.

5. The appellants in support of their denial of the claim of independent right as tenants of the writ petitioners, pleaded supporting facts and circumstances in detail, inter alia alleging that the writ petitioners have deliberately concealed the fact they were parties in an immediately preceding case under the provisions of the Rent Act for release of the premises in favour of the landlord-appellants and that the release order was ultimately made by the delegated authority overruling their objection.

6. The High Court has held that since the claim of the writ petitioners was not examined and decided in the suit and the decree was passed against Prabhas Kumar Sinha only, they cannot be evicted from the premises unless a decree is expressly passed against them. It has been observed that the appellants must proceed to file a suit against the writ petitioners and obtain a decree against them if they intend to eject them.

7. It has been contended, and in our view correctly, that if the claim of the writ petitioners of being in possession of the premises as tenants in their own right is rejected and they are held to have been inducted by Prabhas Kumar Sinha or his father Dr. K.C. Sinha, they are liable to be evicted in execution of the present decree. It was, therefore, necessary to adjudicate upon the dispute between the parties and record a finding on the character of possession of the writ petitioners, before proceeding to consider whether the decree is executable or not against them, and having not done so, the High Court has seriously erred in law in allowing the writ petition by the impugned judgment. The decision on the disputed issue was dependent on the consideration of the evidence to be led by the parties, and while exercising the writ jurisdiction the High Court was not expected to go into that question. In the circumstances, the Court ought to have refused to dispose of the writ petition on merits, leaving the writ petitioners to avail of the remedy before the civil court. The error in the judgment as pointed out earlier was the consequence of the initial mistake in entertaining the petition.

8. The principle as to when the High Court should exercise its special jurisdiction under Article 226 and when to refuse to do so on the ground of availability of an alternative remedy has been settled by a long line of cases. The remedy provided under Article 226 is not intended to supersede the modes of obtaining relief before a civil court or to deny defences legitimately open in such actions. As was observed in State of Andhra Pradesh v. Chitra Venkata Rao [1976] 1 SCR 521 the jurisdiction to issue a writ of certiorari is supervisory in nature and is not meant for correcting errors like an appellate court. In Thansingh Nathmal and Ors. v.A. Mazid: [1964] 6 SCR 654 a case dealing with liability to pay sales tax, the appellants without following the statutory remedy under the Sales Tax Act, moved the High Court under Article 226 on the ground that the Act was ultra vires. The challenge was rejected. Another contention, namely, that the finding of the Commissioner that the goods were actually within the State at the time of the contract was based on no evidence and was purely speculative, was also raised. This ground also failed before the High Court and the writ petition was dismissed. Approving the decision, this Court observed that if the appellants had persued the statutory remedy under the Act and the question had been referred to the High Court, the Court could have appropriately advised the Commissioner, but not having done so the High Court could not be asked to assume the role of an appellate court over the decision of the Commissioner either on a question of fact or even of law. Again when a learned Single Judge of the High Court and on appeal a Division Bench proceeded to examine the correctness of an order in relation to grant of a permit to ply a vehicle under the Motor Vehicles Act, it was observed by this Court in M. Naina Mohammed v. K.A. Natarajan & Ors., [1976] 1 SCR 102, that the power under Article 226 is supervisory in nature and the Judges at both the tiers had unwittingly slipped into the subtle but, fatal, error of exercising a kind of appellate review. So far the question of executability of a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing with it in all its aspects. The numerous rules of order XXI of the Code take care of different situations, providing effective remedies not only to judgment-debtors and decree-holders but also to claimant objectors as the case may be. In an exceptional case, where provisions are rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate time, the answer is a regular suit in the civil court. The remedy under the Civil Procedure Code is of superior judicial quality than what is generally available under other statutes, and the Judge being entrusted exclusively with administration of justice, is expected to do better. It will be, therefore, difficult to find a case where interference in writ jurisdiction for granting relief to a judgment-debtor or a claimant objector can be justified. The rules 97 to 106 of order XXI envisage questions as in the present appeal to be determined on the basis of evidence to be led by the parties and after the 1976 Amendment, the decision has been made appealable like a decree. The High Court, in the present case, therefore, ought not to have embarked upon a decision of the writ petition on merits, and should have refused to exercise its special jurisdiction on the ground of alternative remedy before the civil court.

9. We, accordingly, set aside the impugned judgment and dismiss the writ petition of the respondents without examination of the merits of the rival cases of the parties. The appeal is allowed with costs, assessed at Rs.2,000.

“””
N.P.V. Appeal allowed.

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]]> https://bnblegal.com/landmark/ghan-shyam-das-gupta-and-anr-vs-anant-kumar-sinha-and-ors/feed/ 0 Kihoto Hollohan Vs. Zachillhu and Others https://bnblegal.com/landmark/kihoto-hollohan-vs-zachillhu-and-others/ https://bnblegal.com/landmark/kihoto-hollohan-vs-zachillhu-and-others/#respond Thu, 30 Jul 2020 12:08:47 +0000 https://bnblegal.com/?post_type=landmark&p=255633 IN SUPREME COURT OF INDIA KIHOTO HOLLOHAN …PETITIONER Vs. ZACHILLHU AND OTHERS …RESPONDENT DATE OF JUDGMENT: 18/02/1992 BENCH: VENKATACHALLIAH, M.N. (J) SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J) REDDY, K. JAYACHANDRA (J) AGRAWAL, S.C. (J) CITATION: 1992 SCR (1) 686 1992 SCC Supl. (2) 651 JT 1992 (1) 600 1992 SCALE (1)338 ACT: Constitution of […]

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]]> IN SUPREME COURT OF INDIA

KIHOTO HOLLOHAN …PETITIONER
Vs.
ZACHILLHU AND OTHERS …RESPONDENT

DATE OF JUDGMENT: 18/02/1992

BENCH: VENKATACHALLIAH, M.N. (J) SHARMA, L.M. (J) VERMA, JAGDISH SARAN (J) REDDY, K. JAYACHANDRA (J) AGRAWAL, S.C. (J)

CITATION: 1992 SCR (1) 686 1992 SCC Supl. (2) 651 JT 1992 (1) 600 1992 SCALE (1)338

ACT:

Constitution of India,1950:

Articles 102(2), 191(2, Tenth schedule inserted by constitution (Fifty-Second amendment) Act, 1985-Anti- defection law-Object and Constitutionality of.

Tenth Schedule-Para 2-Members of Parliament/State Legislatures-Disqualification on account of defection- whether violative of rights and freedom envisaged by article 105.

Para 2(1)(b)-expression “any direction”-Construction of-Whether whip/direction should clearly indicate that voting/abstention from voting contrary to it would incur disqualification.

Paragraph 6-Speakers/Chairmen-Power to decide disputed disqualification of a Member of a House-Nature of.

Speakers/Chairman-whether act as tribunal and satisfy requirements of independent adjudicator machinery.

`Finality’ to orders of Speakers/ Chairmen; and immunity to proceedings under para 6(1) analogous to Articles 122(1) and 212(1)-Whether excludes judicial review.

Doctrine of necessity-Applicability of.

Paragraph 7-Expression `no court shall have any jurisdiction in respect with the matter connected with disqualification of a Member of a House’-Whether bars jurisdiction of Supreme Court and High Courts under Articles 136, 226 and 227: whether required ratification envisaged by proviso to Article 368(2): whether can be severed from other provisions of Schedule.

Doctrine of severability-Applicability of.

687 Articles 122(1),212(1)-Proceedings in Parliament/State Legislature-Whether justiciable on ground of illegality or perversity.

Articles 136, 226, 227-Orders under Paragraph 6-Scope of Judicial review-Whether confined to jurisdictional errors only.

Article 368-Constitutional amendment-Amending powers- Scope,object, nature and limitations explained.

Extinction of rights and restriction of remedy for enforcement of right-Distinction between-Extinction of remedy without curtailing right-Whether makes a change in the right.

Administrative Law :

Judicial review-Statute-Finality and ouster clauses- Meaning, object and scope of.

Practice & Procedure :

Interlocutory orders-Purpose of.

Words and Phrases :

`Administration of Justice’, `Court’, `final’ and `Tribunal’meaning of.

HEADNOTE:

By the Constitution (Fifty-Second Amendment) Act, 1985 (popularly known as the Anti-defection law) the Tenth Schedule was inserted in the constitution of India providing for disqualification of a Member of either House of Parliament or of a State Legislature found to have defected from continuing as a Member of the House.

Paragraph 2 of the Tenth Schedule states that a Member of a House would incur disqualification if he voluntarily gives up his membership of the party by which he was set up as a candidate at the election, or if he without obtaining prior permission of the political party to which he belongs votes or abstains from voting in the House contrary to “any direction” issued by such political party and such voting or abstention has not been condoned by such political party within 15 days from the date of such voting or abstention;

or if a Member elected otherwise than as a candidate set up by any political party joins a political party after the 688 election; or, if a nominated Member joins any political party after expiry of six months from the date he took his seat. Paragraph 6(1) states that the question of disqualification shall be referred for decision of the chairmen/Speaker of the House and his decision shall be final. It further provides that such question in respect of Chairman/Speaker shall be referred for decision of such Member of the House as the House may elect in this behalf.

according to Paragraph 6(2) all proceedings under para 6(1) shall be deemed to be proceedings in Parliament/Legislature of a House within the meaning of Article 122/212. Paragraph 7 states that no court shall have jurisdiction in respect of any matter connected with the disqualification of a Member of a House.

A large number of petitions were filed before various High Courts as well as this Court challenging the constitutionality of the Amendment. This Court transferred to itself the petitions pending before the High Courts and heard all the matters together.

The challenge was mainly on the grounds that Paragraph 7 of the Tenth Schedule, in terms and ineffect sought to make a change in chapter IV of Part V and Chapter V of Part VI of the Constitution as it takes away the jurisdiction of the Supreme court under Article 136 and that of the High Courts under Articles 226 and 227 of the constitution, and,therefore,the Bill before presentation to the President for assent would require to be ratified by the legislatures of not less than one-half of the States by resolution to that effect as envisaged by the proviso to Article 368(2);

that in the absence of such a ratification the whole Amendment Bill was an abortive attempt to bring about the amendment indicated therein; that even assuming that the amendment does not attract the proviso to Article 368(2), Paragraph 7 of the Schedule is liable to be struck down as it takes away the power of judicial review; that the very concept of disqualification for defection is violative of the fundamental values and principles under-lying parliamentary democracy and violates an elective representative’s freedom of speech, right to dissent and freedom of conscience and is destructive of a basic feature of the Constitution; that the investiture of power to adjudicate disputed defections in the Chairmen/Speakers, who being nominees of political parties are not obliged to resign their party affiliations, does not stand the test of an independent and impartial adjudicatory machinery and is, therefore, violative of the basic feature of 689 the constitution. It was also contended that the expression “any direction” in Paragraph 2(1)(b) of the Schedule might be unduly restrictive of the freedom of speech, and the right of dissent which may itself be obnoxious to and violative of constitutional ideals and values.

The respondents contended that the Tenth Schedule created a nonjusticiable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition and the exclusion of this area is constitutionally preserved by imparting a finality to the decision of the Speakers/Chairmen by deeming whole proceedings as those within Parliament/House of legislature envisaged in Articles 122 and 212 and further excluding the Court’s Jurisdiction under Paragraph 7; that no question of ouster of judicial review would at all arise inasmuch as the Speaker/chairman exercising power under Paragraph 6(1) of the Tenth Schedule function not as a statutory tribunal but as a part of state’s Legislative department; and that having regard to the political issues, the subject matter is itself not amenable to judicial power but pertains to the constitution of the House and the legislature is entitled to deal with it exclusively.

The Court on 12.11.1991 gave its operative conclusions, indicating reasons to follow and by its judgment dated 18.2.1992 gave the reasons.

On the questions whether: (1) the Tenth Schedule to the constitution inserted by the constitution (Fifty-Second Amendment) Act, 1985, seeking to penalise and disqualify elected representatives is violative of the fundamental principles of Parliamentary democracy and is, therefor, destructive of the basic feature of the Constitution; (2) Paragraph 7 of the Tenth Schedule in terms and in effect brings about a change in operation and effect of Articles 136,226 and 227 of the Constitution and, therefore, the Bill introducing the amendment would require ratification as envisaged by the proviso to Article 368(2); (3) the non- compliance with the proviso to Article 368(2) would render the entire Bill vitiated and an abortive attempt to bring about a valid amendment or would Paragraph 7 alone be invalidated with the application of the doctrine of severability; (4) the Tenth Schedule created a new and non- justiciable constitutional area not amenable to curial adjudicative process; and whether Paragraph 6(1) in imparting a constitutional `finality’to the decisions of Chairmen/Speakers, and paragraph 6(2) in the event of attracting immunity under Articles 122 690 and 212, bar judicial review; (5) the Chairmen/Speakers satisfy the requirements of an independent adjudicatory machinery or whether the investiture of the determinative and adjudicative jurisdiction in them under the Tenth Schedule would vitiate the provision on the ground of reasonable likelihood of bias.

Dismissing Writ Petition No.17 of 1991 and remitting Writ Petition Rule No.2421 of 1990 (subject matter of TP No.

40/91) to the High Court of Guwahati, this Court

HELD: (By the Court) (i) Paragraph 7 of the Tenth Schedule to the Constitution in terms and in effect excludes the jurisdiction of all Courts including the Supreme Court and High courts, and brings about a change in the operation and effect of Articles 136, 226 and 227 of the constitution of India, and therefore, the amendment would require ratification in accordance with the proviso to Articles 368(2) of the constitution of India.

[pp. 711F-G;714G] (ii) The finality clause in Para 6(1) of the Tenth Schedule to the Constitution is not decisive. Such finality,being for the statute alone, does not exclude extraordinary jurisdiction of the Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution.

[713E-F; 788B-C] (iii) The legal fiction in para 6(2) of the Tenth Schedule brings a proceeding under para 6(1) within the ambit of clause (1) of Article 122/212 of the Constitution, and, therefore, makes it justiciable on the ground of illegality or perversity inspite of the immunity it enjoys to a challenge on the ground of “irregularity of procedure.” [713G; 788E-F] Per Majority (M.N. Venkatachaliah. K. Jayachandra Reddy

(i) Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defection and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7. [p.712E-F] 691 (ii) There is nothing in the proviso to Article 368(2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that “thereupon the Constitution shall stand amended” the operation of the proviso should not be extended to constitutional amendments in a bill which can stand by themselves without such ratification. [711G-H; 712- A-B] (iii) The Constitution (Fifty-Second Amendment) Act, 1985 in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provision which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be over borne by the proviso to Article 368(2) which cannot operate in that area.

[712B-C] (iv) Paragraph 2 of the Tenth schedule to the constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience; nor does it violate any rights or freedom under Article 105 and 194 of the Constitution. [712F-H] The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.

[712H, 713A] (v) The Tenth Schedule does not, in providing for an additional ground for disqualification and for adjudication of disputed disqualifications, seek to create a non- justiciable constitutional area. [p. 769A-B] (vi) The Speakers/Chairmen while functioning under the Tenth Schedule exercise judicial power and act as Tribunal adjudicating rights and obligations under the Tenth schedule, and their decisions in that capacity are amenable to judicial review. [713C] (vii) Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairman is valid. But the concept of statutory finality embodied therein does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, 692 male fides, non-compliance with Rules of Natural Justice and perversity are concerned. [713E-F] (viii) The deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Article 122(1) and 212(1) of the constitution to protect the validity of proceedings from mere irregularities of procedure and confines the scope of the fiction accordingly.

[713G-H, 714A] Spl.Ref. No.1 of 1964 (Keshav Singh’s case) [1964] INSC 209; [1965] 1 SCR 413,referred to.

(ix) Having regard to the constitutional scheme in the Tenth Schedule,judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairmen;

and no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

[713D-E] (x) The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in them should not be considered exceptionable.

[714B-C] Per Lalit Mohan Sharma and J.S. Verma, JJ.-contra

(i) Without ratification, as required by the mandatory special provision prescribed in the proviso to Article 368(2) of the Constitution the stage of presenting the Constitution (Fifty-Second) Amendment Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est.[715B-C]

(ii) In the absence of ratification it is not merely paragraph 7 but the entire Constitution (Fifty-Second Amendment) Act, 1985 which is rendered unconstitutional, since the constitutional power was not exercised as prescribed in Article 368, and, therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for amendment. [715D-E] 693 (iii) Doctrine of severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368.

[715F] (iv) Doctrine of severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that Para 7 alone attracts the proviso the Article 368(2). [715G] (v) The Speaker’s decision disqualifying a Member of a House under paragraph 6(1) of the Tenth Schedule is not immune from judicial scrutiny. It is a nullity liable to be so declared and ignored. [782G] (vi) An independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as an attribute of the democratic system which is a basic feature of our Constitution. The tenure of the Speaker, who is the authority in the Tenth schedule to decide this dispute, is dependent on the continuous support of the majority in the House and, therefore, he does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

[716B-C] (vii) Consequently, the entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional. [716C-D] (viii) Accordingly, all decisions rendered by several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.

[p.716D]

Per Venkatachaliah : J.

1.1.A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances-a distinction which differentiates a statute from a Charter under which all statutes are made. [726G-H] Cooley on “Constitutional Limitation” 8th Edn. Vol.I p.129, referred to.

1.2. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment 694 are important criteria. [727B] U.S.Supreme Court in Maxwell v. Dow 44 Lawyer’s Edition 597 at p. 605, referred to.

1.3. The Tenth Schedule is a part of the Constitution and attracts the same canons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the other as the Constitution is one “coherent document”. In expounding the process of the fundamental law the Constitution must be treated as a logical-whole. [726D-E] 1.4. The distinction between what is constitutionally permissible and what is outside it is marked by a `hazy-gray line’and it is the Court’s duty to identify, “darken and deepen” the demarcating line of constitutionality – a task in which some element of Judges’ own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a “transitory delusion of certitude” where the “complexities of the strands in the web of constitutionality which the Judge must alone disentangle” do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications. [730D-F] “Theory of Torts” American Law Review 7[1873]; Justice Oliver Wendel Holmes-Free Speech and the Living Constitution by H.L. Pohlman 1991 Edn. p.223, referred to.

Amalgamated Society of Railway Servants v. Osborne, 1910 A.C. 87, referred to.

1.5. A political party functions on the strength of shared beliefs. Any freedom of its Members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance-nay, indeed, its very survival. Paragraph 2(1)(b) of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to “any directions” issued by the political 695 party. The provision, however, recognising two exceptions:

one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission…his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs.[734D-E; 735B-C] Griffith and Ryle on “Parliament, Functions, Practice & Procedure” 1989 Edn. page 119, referred to.

1.6. In a sense anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct- whose awkward erosion and grotesque manifestations have been the bane of the times-above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation. This legislative wisdom and perception should be deferred to. The choices in constitutional adjudications quite clearly indicate the need for such deference.[739D-G] `Constitutional Reform, – Reshaping the British Political System, by Rodney Brazier. 1991 Edn.pp.48-53, referred to.

1.7.The Tenth Schedule does not impinge upon the rights or immunities under Article 105(2) of the Constitution. The freedom of speech of a Member is not an `absolute freedom.

That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any “Court” for anything said or any vote given by him in Parliament.[732H; 733C] Jyoti Basu & Ors. v.Debi Ghosal & Ors., [1982] INSC 26; [1982] 3 SCR 318, referred to.

2.1. A provision which seeks to exclude the jurisdiction of Courts is strictly construed. [742E] H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors. v. Union of India, [1971] 1 SSC 85, referred to.

696 Mask & Co.v.Secretary of State, AIR 1940 P.C. 105, referred to.

2.2 The rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute. [742F]

2.3. As regards Paragraph 7 to the Tenth Schedule, both on its language and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest. The words “no Courts shall have any jurisdiction in respect of any matter connected with the disqualification of a member” are of wide import and leave no constructional options. This is reinforced by the legislative history of the anti-defection law. The Constitution (Fifty-Second Amendment) Bill for the first time envisaged the investitute of the power to decide disputes on the Speakers or the Chairmen whereas the two similar Constitution (32nd and 48th amendment) Bills, (which had lapsed) did not contain any clause ousting the jurisdiction of the Courts. The purpose of the enactment of Paragraph 7, as the debates in the House indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution. {742F-G, H, 743B]

2.4. The changes in Chapter IV of Part V and Chapter V of the Part VI of the constitution envisaged by the proviso to Article 368(2) need not be direct. The change could be either “in terms of or in effect”. It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is `in effect’a change in those provisions attracting the proviso.

[p. 745C-D] 2.5. Though the Amendment does not bring in any change directly in the language of Articles 136,226 and 227 of the constitution,, however, in effect Paragraph 7 curtails the operation of those Articles respecting matter falling under the Tenth Schedule. There is a change in the effect in Articles 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368 (2). Paragraph 7, therefore, attracts the proviso and ratification was necessary. [745F] Sri Sankari Prasad Singh Deo v. Union of India & State of Bihar, [1951] INSC 45; [1952] SCR 89 Sajjan Singh v. State of Rajasthan, [1964] INSC 246; [1965] 1 SCR 933, referred to.

3.1 The criterion for determining the constitutional validity of a law is the competence of the law making authority (which would depend on the ambit of the Legislative power and the limitations imposed thereon as also on mode of exercise of the power). While examining the constitutional validity of laws the doctrine of severability is applied which envisages that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part.

[746C; 747D] Cooley’s constitutional Limitations; 8th Edn. Vol. 1, p. 359-360, referred to.

R.M.D. Chamarbaughwalla v. Union of India, [1957] INSC 32; [1957] SCR 930; Shri Kesavananda Bharti Sripadagalavaru v. State of Kerala, [1973] Supp. 1 SCR; Minerva Mills Ltd. & Ors. v. Union of India & Ors., [1980] INSC 141; [1981] 1 SCR 206 and Sambhamurthy & Ors. etc.v. State of Andhra Pradesh & Anr., [1986] INSC 278; [1987] 1 SCR 879, referred to.

3.2. Though the amending power in a constitution is in the nature of a constituent power and differs in content from the Legislative power, the limitations imposed on the constituent power may be substantive as well as procedural.

Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas from its ambit. Procedural limitations are those which impose restrictions with regard to the mode of exercise of the amending power, e.g. the limitation requiring a special majority under Article 368(2) of the constitution is a procedural one. Both these limitations, however, touch and affect the constituent power itself, and impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power and would invalidate its exercise. [746C-E, 747C]

3.3. Although there is no specific enumerated substantive limitation on the power in Article 368, but as arising from very limitation in the word `amend’, a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution. [747A-B]

3.4. The proviso to Article 368(2) was introduced with a view to giving 698 effect to the federal principle. Its scope is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368(2).

[750C-D] Madras & Southern Mahratta railway company v. Bazwada Municipality, (1944) 71 I.A. 113 and Commissioner of Income Tax, Mysore v. Indo- Mercantile Bank Ltd.(1959), Supp. 2 SCR 256, referred to.

3.5. An amendment which otherwise fulfils the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps. [750E]

3.6. The words “the amendment shall also require to be ratified by the legislature” occurring in the proviso to Article 368(2) indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso. The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. [750G-H]

3.7. A composite amendment which makes alterations in the First and Fourth schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2), even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth schedules. [755D] Bribery Commissioner v. Pedrick Ranasinghe, 1965A.C.172, referred to.

3.8. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. [753D-E]

3.9. The principle of severability can be equally applied to a composite amendment which contains amendment in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, 699 the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid. [753E-F]

3.10. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. [753G]

3.11. The main purpose underlying the Constitutional (Fifty-Second Amendment) Act and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body-politic. The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it had known that Paragraph 7 was not valid, Nor can it be said that the rest of the provisions of the Tenth schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 is therefore, severable from the rest of the provisions. [pp.754A-C]

4.1. Democracy is a basic feature of the Constitution.

Whether any particular brand or system of Government by itself, has this attribute of a basic feature, as long as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process.

That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes.

[p.733F-G] 4.2. In the Indian constitutional dispensation the power to decide a disputed disqualification of an elected Member of the House is not treated as a matter of privilege and the power to resolve such electoral dispute is clearly judicial and not legislative in nature. The power to decide disputed disqualification under Paragraph 6(1) is pre eminantly of a judicial complexion. [pp.759G.763C] Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347;

Special Reference 700 No. 1 of 1964[1964] INSC 209; , [1965] 1 SCR 413 & Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578,, referred to.

Australian Boot Trade Employees Federation v. Whybrow & Co., [1910] HCA 8; 1910 10 CLR 266, referred to.

4.3. The word “Courts” is used to designate those Tribunals which are set up in an organised State for the administration of justice. By Administration of Justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish “wrongs”. Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed.

Where there is a lis an affirmation by one party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a court. Thus, the Speaker or the Chairman, acting under Paragraph 6(1) of the Tenth Schedule is a Tribunal.[763G-H, 764E-F, 766B] Associated Cement companies Ltd. v. P.N. Sharma and Anr., [1964] INSC 286; [1965] 2 SCR 366 and Harinagar Sugar Mills Ltd. v.Shyam Sunder Jhunjhunwala & Ors., [1961] INSC 185; [1962] 2 SCR 339, referred to.

5.1. A finality clause is not a legislative magical incantation which has the effect of telling off Judicial Review. Statutory finality of a decision presupposes and is subject to its consonance with the statute. The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. An action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant consideration. [pp. 755D,765D-E] `Administrative Law’ 6th Edn. at p. 720 & Constitutional Fundamentals, the Harmlyn Lectures, 1989 Edn., p.88, referred to.

5.2. The finality clause with the word “final” in paragraph 6(1) of the Tenth schedule does not completely exclude the jurisdiction of the 701 Courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction. If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different. [758H, 759A,765C,758A] Brundaban Nayak v. Election Commission of India & Anr., [1965] INSC 34; [1965] 3 SCR 53; Union of India v. Jyoti Prakash Mitter, [1971] INSC 18; [1971] 3 SCR 483; Durga. Shankar Mehra v. Reghuraj Singh, [1954] INSC 68; AIR 1954 SC 520 and Union of India & Anr. v. Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131, referred to.

5.3. An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction.

[765F] Anisminic Ltd. v.Foreign commission[1968] UKHL 6; , [1969] 2 AC 147;

S.E. Asia Fire Bricks v. Non-Metallic Products, 1981 A.C.

363, referred to.

6. The fiction in Paragraph 6(2) attracts an immunity from mere irregularities of procedures. The very deeming provision implies that the proceedings of disqualification are, in fact,. not before the House; but only before the Speaker a specially designated authority. The decision under Paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own power. There is, therefore, no immunity under Articles 122 and 212 from judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.

[763D-F]

7. The scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under Paragraph 6 would be confined to jurisdictional errors only, viz., infirmities based on violation of constitutional mandate, mala fides, non- compliance with rules of natural justice and perversity.

But Judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia- timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exceptions will, however,, have to be made in respect of cases where disqualification of suspension is imposed during the pendency of the 702 proceedings and such disqualification or suspension is likely to have grave,immediate and irreversible repercussions and consequence.[768E-H] Makhan Singh v. State of Punjab, [1964] 4 SCR 797;State of Rajasthan v.Union of India[1977] INSC 145; , [1978] 1 SCR 1; Union of India v. Jyoti Prakash Mitter, (supra) and Union of India & Anr. v. Tulsiram Patel & Ors., [1985] Supp. 2 SCR 131, referred to.

8. The office of the Speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. He is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character. It would, indeed be unfair to the high traditions of that great office to say that the investiture in it of this jurisdiction would be vitiated for violation of a basic feature . of democracy.

It is inappropriate to express distrust in the high office of the speaker, merely because some of the speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The Robes of the Speaker do change and elevate the man inside. [770G-H, 771A, 772A, 773A-B] G.V. Mavalankar ; The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol. 2. No. 1 p.33;

HOP, Deb. Vol.IX (1954), CC 3447-48 and Erskine May- Parliamentary Practice -20th edition p. 234 and M.N. Kaul and S.L. Shakdher in `Practice and Procedure of Parliament’ 4th Edition, referred to.

9.1. The words “any direction” occurring in Paragraph 2(1)(b) of the Tenth Schedule require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context.

There is no justification to give the words the wider meaning. [774H, 775A-B] Parkash Singh Badal & Ors. v. Union of India & Ors., AIR 1987 Punjab & Haryana 263, referred to.

9.2. While construing Paragraph 2(1)(b) it cannot be ignored that 703 under the Constitution members of Parliament as well as of the State Legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the Constitution and the rules and standing orders regulating the Procedure of the House. The disqualification imposed by Paragraph 2(1)(b) must be so construed as not to unduly impinge on the said freedom of speech of a member.

This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. [p.

775C-D] 9.3. In view of the consequences of the disqualification, i.e., termination of the membership of a House, it would be appropriate that the direction or whip which results in such disqualification under Paragraph 2(1)(b) of the Tenth Schedule is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b), so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction. [775H, 776A-B]

10.1 The purpose of interlocutory orders is to preserve in status-quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency.

[776G] 10.2. The interlocutory orders in the instant case were necessarily justified so that, no land-slide changes were allowed to occur rendering the proceedings ineffective and infructuous.[776H, 777A] Per VERMA, J. : 1.Under the Constitution of India which delineates the spheres of jurisdiction of the legislature and the judiciary,the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision, and Article 144 obliges all authorities in the country to act in aid of this Court. It is, therefore, not permissible in our constitutional scheme for any other authority to claim that power in exclusivity, or in supersession of this Court’s verdict. Whatever be the controversy prior to this Court entertaining such a matter, it must end when the Court is seized of the matter for pronouncing its verdict and it is the constitutional 704 obligation of every person and authority to accept its binding effect when the decision is rendered by this Court.

[p. 784F-H] Cohens v. Virginia, [1821] USSC 18; 6 Wheat 264, 404[1821] USSC 18; , 5 L.Ed. 257, 291 (1821) and State of madras v. V.G. row[1952] INSC 19; , [1952] SCR 597, referred to.

2.1. The finality clause in Para 6(1) of the Tenth Schedule to the Constitution which says that the decision of the Chairman or as the case may be, the speaker of the House shall be final is not decisive. Such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity.

Sub-paragraph (1)alone is, therefore, insufficient to exclude the extra-ordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court. [788B-C] 2.2. The ambit of a legal fiction must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition. In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. [788E, 789A] 2.3. The legal fiction in sub-paragraph (2) of para 6 of the Tenth Schedule serves a limited purpose and brings the proceedings under sub-paragraph (1) thereof within the ambit of clause (1) of Article 122 or Clause (1) of Article 212, and, therefore, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles. [788C, 789B] Commissioner of Income-tax v. Ajax Products Ltd., [1964] INSC 224; [1965] 1 SCR 700, referred to.

2.4. A matter falling within the ambit of clause (1) of either of the two Article 122 or 212 is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of “irregularity of procedure”. [788E-F] 2.5. The decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House 705 provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible. That being so, the matter falls within the ambit of clause (1) only of Article 122 and 212 as a result of which it would be vulnerable on the ground of illegality and perversity and therefore, justiciable to that extent. [789C-D] Spl. Ref. No. 1 of 1964 (Keshav Singh’s case) [1964] INSC 209; [1965] 1 SCR 413, 3.1. The words in Paragraph 7 of the Tenth Schedule with its non-obstante clause `notwithstanding anything in this Constitution’ followed by expression `no court shall have any jurisdiction’, are very wide and ordinarily mean that this provision supersedes any other provision in the Constitution, and leave no doubt that the bar of – jurisdiction of Courts is complete excluding also the jurisdiction of the supreme court and the High courts under Articles 136, 226 and 227 of the Constitution respectively.

Further, the expression `in respect of any matter connected with the disqualification of a Member of a House under this Schedule’ is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under paragraph 6. This conclusion is reinforced by the finality clause and deeming provision in para 6 of the Tenth Schedule and by the legislative history of the absence of such a provision excluding the Court’s jurisdiction in the earlier two Bills which had lapsed. [pp.

789F-G, 790C, H] 3.2. Para 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the constitutional amendment.

[799E] 4.1. Distinction has to be drawn between the abridgment or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgment of extinction of the right which results in the disappearance of the cause of action which enables invoking the remedy and in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy.

On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that cause of 706 action cannot be enforced for want of that remedy, then the change made is in the remedy and not in the subsisting rights. [793A-C] Sri sankari Prasad Singh Deo v. Union of India & State of Bihar, [1951] INSC 45; [1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1964] INSC 246; [1965] 1 SCR 933, explained 4.2. The instant case in unequivocal terms, is that of destroying the remedy by enacting para 7 of the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Article 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualification specified in clause (1) of Articles 102 and 191, which remedy continues to subsist.

[793D-F] 4.3. The extinction of the remedy alone without curtailing the right, since the question of disqualification of a member on the ground of defection under the Tenth Schedule does require adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution.

[793F] 4.4. The Constitution (Fifty-Second Amendment) Bill, therefore, attracted the proviso to Article 368(2) requiring ratification by the specified number of State legislatures before its presentation to the President for his assent.

[793G]

5.1 The proviso to Article 368(2) of the Constitution contains a constitutional limitation on the amending power;

and prescribes as a part of the special procedure, prior assent of the State Legislatures before presentation of the Bill to the President for his assent in the case of the relevant Bills. This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for the assent, which assent results in the Constitution automatically standing amended in accordance with the terms of the Bill. The Bills governed by the proviso, therefore, cannot be presented to the President for his assent without the prior ratification by the specified number of State legislatures. [795C-E] 707 5.2. The consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the legislature by not less than one-half of the States. Non-compliance of the special procedure prescribed in Article 368(2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill. [795F-G, H,796A] Kesavananda Bharati v. State of Kerala, [1973] Supp.1 SCR, relied on.

5.3. The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part. A Bill falling within the ambit of the proviso to cl.(2) of Article 368 is carved out of the main enactment in clause (2) as an exception on account of which it cannot result in amendment of the constitution on the President’s assent without prior ratification by the specified number of State legislature. [797G-H, 798A-B] 5.4. The entire Tenth Schedule is enacted in exercise of the constituent power under Article 368, not merely para 7 therein, and this has been done without following the mandatory special procedure prescribed. It is, therefore, the entire Constitution (Fifty Second) Amendment Bill and not merely para 7 of the Tenth Schedule which required prior ratification by the State of legislatures before its presentation to the President for his assent, it being a joint exercise by the parliament and the State Legislatures.

The stage of presentation of the Bill to the President for his assent not having reached, the President’s assent was non est and it could not result in amendment of the Constitution in accordance with the terms of the Bill. It is not a case of severing the invalid constituent part from the remaining ordinary legislation. [799G-H, 800A; 802C] 6.1. The doctrine of severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a viable whole. this doctrine has no application where the legislation is not validly enacted due to non-compliance 708 of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power. The doctrine does not apply to a still born legislation. It is not possible to infuse life in a still born by any miracle and deft surgery even though it may be possible to continue life by removing a congenitally defective part by surgical skill.

[800D-E] The Bribery Commissioner v. Pedrick Ranasinghe, [1964] UKPC 1; [1965] AC 172, referred to.

6.2. Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification or the President’s assent and, therefore, not such severance can be made even for the ensuing result. If the President’s assent cannot validate para 7 in the absence of prior ratification, the same assent cannot be accepted to bring about a different result with regard to the remaining part of the Bill. [800A-B]

7. The test whether the enactment would have been made without para 7 indicates that the legislative intent was to make the enactment only with para 7 therein and not without it, otherwise the enactment did not require the discipline of Article 368and exercise of the constituent power and mode of ordinary legislation could have been resorted to in accordance with sub-clause (e) of clause (1) of Article 102 and 191, which would render the decision on the question of disqualification on the ground of defection also amenable to judicial review as in the case of decision on questions relating to other disqualification. [802F-H, 803A] R.M.D. Chamarbaughwalla v. The Union of India, [1957] INSC 32; [1957] SCR 930, relied on.

8.1. Democracy is a part of the basic structure of our Constitution, and rule of law; and free and fair elections are basic features of democracy, One of the postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.

It is only by a fair adjudication of such disputes relating to validity of elections and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured.

[803E-G] 709 8.2. In the democratic pattern adopted by our Constitution, not only the resolution of election dispute is entrusted to a judicial tribunal, but even the decision on questions as to disqualification of members under Articles 103 and 192 is contemplated by an independent authority outside the house, namely, President/Governor in accordance with the opinion of the Election commission,, all of whom are high constitutional functionaries with security of tenure, independent of the will of the House.

[803G-H, 804A] 8.3. Sub-clause (e) of clause (1) in Articles 102 and 191 which provide for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub-clauses of clause (1), clearly indicates that all disqualifications of Members were contemplated within the scope of Articles 102 and 191. All disqualification including disqualification on the ground of defection, in our constitutional scheme, are, therefore, different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment; and were meant to be decided by an independent authority outside the House such as the President/Governor, in accordance with the opinion of another similar independent constitutional functionary, the Election commission of India, who enjoys the security of tenure of a Supreme Court Judge with the same terms and conditions of office. [804B-E] 8.4. The Speaker’s office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the framed and yet the farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of Members to the Speaker; and provision was made in Article 103 and 192 for decision of disputes by the President/Governor in accordance with the opinion of the Election commission. In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker’s decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution.[804-G, 805E] 8.5. The Speaker being an authority within the House and his tenure being dependent on the will of majority therein, likelihood of suspicion of 710 bias could not be ruled out. The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision to be rendered in consonance with the scheme for adjudication of disputes Rule of law has in it firmly entrenched natural justice, of which, Rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are : Nemo judex in cause sua – `A Judge is disqualified from determining any case in which he may be,or may fairly be suspected to be, biased’; and `it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done’.

[804H, 805A-B] 8.6. It is the Vice-President of India who is ex- officio Chairman of the Rajya Sabha and his position being akin to that of the President of India, is different from that of the Speaker. The observations relating to the office of the speaker do not apply to the chairman of the Rajya Sabha, that is the Vice-President of India. [805F-G] 8.7. Since the conferment of authority is on the Speaker and the provision being unworkable for the Lok sabha and the State Legislatures, cannot be sustained, even without para 7, the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute notwithstanding the fact that this defect would not apply to the Rajya sabha alone whose Chairman is the Vice-President of India. The statutory exception of doctrine of necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options. [805H, 806A-B] & ORIGINAL JURISDICTION: Transfer Petition (Civil) No.40 of 1991.

(Under Article 139 A(1) of the Constitution of India).

WITH
Writ Petition (Civil) No. 17 of 1991.

Soli J. Sorabjee, Vijay Hansaria and Sunil Kr. Jain for the Petitioner Ejaz Maqbool and Markand D. Adkar for the Respondents.

The Judgment of the Court was delivered by 711 (OPERATIVE CONCLUSIONS IN THE MAJORITY OPINION) [Per VENKATACHALIAH, K, JAYACHANDRA REDDY AND AGRAWAL, JJ.].

1. The Writ Petitions, Transfer Petitions, Civil Appeals, Special Leave Petitions and other connected matters raising common questions as to the constitutional validity of the constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, were heard together. Some of these matters involve investigation and determination of factual controversies and of the extent of applicability to them of the conclusions reached on the various constitutional issues. That exercise shall have to be undertaken in the individual cases separately.

The present judgment is pronounced in the Transfer Petition No. 40 of 1991 seeking the transfer of the Writ Petition, Rule No. 2421/90 on the file of the High Court of Guwahati to this Court.

2. The Transfer Petition is allowed and the aforesaid Writ Petition is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter.

3. For the reasons to be set out in the detailed judgment to follow, the following are the operative conclusions in the majority opinion on the various constitutional issues:

(A) That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the Constitution in terms and in effect bring about a change in the operation and effect of Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.

(B) That there is nothing in the said proviso to Article 368 (2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill 712 Which do not attract and require such ratification. Having regard to the mandatory language of Article 368 (2) that “thereupon the constitution shall stand amended” the operation of the proviso should not be extended to constitutional amendments in a Bill which can stand by themselves without such ratification.

(C) That accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the union Parliament cannot be overborne by the proviso which cannot operate in that area.

There is no justification for the view that even the rest of the provisions of the constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368 (2) was not so ratified.

(D) That Paragraph 7 of the Tenth Schedule contains a provision which is independent of, and stands apart from, the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part.

The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.

(E) That the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of speech, freedom of vote and conscience as contended.

The provisions of Paragraph 2 do not violet any rights or freedom under Article 105 and 194 of the Constitution.

The provisions are salutory and are intended to strengthen the 713 fabric of Indian parliamentary democracy by curbing unprincipled and unethical political defections.

(F) The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in that they affect the democratic rights of elected members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.

(G) The Speakers, Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjucating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional Scheme in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the speakers/Chairmen. Having regard to the Constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible repercussions and consequence.

(H) That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6 (1) does not detract from or abrogate judicial review under Articles 136,226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.

(I) That the deeming provision in Paragraph 6 (2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122 (1) and 212 (1) of the Constitution as understood and explained in Keshav singh’s Case (Spl. Ref., No. 1[1964] INSC 209; , [1965] 1 SCR 413) to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words “be deemed to be proceedings in Parliament” or “proceedings 714 in the Legislature of a State” confines the scope of the fiction accordingly.

(J) That contention that the investiture of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and do take far reaching decisions in the functioning of Parliamentary democracy. Vestiture of power to adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.

(K) In the view we take of the validity of Paragraph 7 it is unnecessary to pronounce on the contention that judicial review is a basic structure of the Constitution and Paragraph 7 of the Tenth Schedule violates such basic structure .

The factual controversies raised in the Writ Petition will, however, have to be decided by the High Court applying the principles declared and laid down by this judgment. The Writ Petition is, accordingly,, remitted to the High Court for such disposal in accordance with law.

(Operative conclusions in the minority opinion) [Per SHARMA AND VERMA, JJ.] For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows:

1. Para 7 of the Tenth Schedule,in clear terms and in effect excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perveristy, not only at an interim stage but also after the final decision on the question of disqualification on the ground of defection.

2. Para 7 of the Tenth Schedule, therefore, in terms and in effect, 715 makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution, attracting the proviso to clause (2) of Article 368.

3. In view of para 7 in the Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985 it was required to be ratified by the Legislature of not less than one-half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the Proviso to clause (2) of Article 368 for exercise of the constituent power. Without ratification by the specified number of State Legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so-called assent of the President was non est and did not result in the Constitution standing amended in accordance with the terms of the Bill.

4. In the absence of ratification by the specified number of State Legislatures before presentation of the Bill to the President for his assent, as required by the Proviso to clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty-Second Amendment) Act, 1985 which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.

5. Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the Proviso to clause (2) of Article 368.

6. Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause (2) of Article 368.

7. Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty_Second Amendment) Act, 1985, the Doctrine of Severability does not apply to it.

8.Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to 716 the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution. Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Member of the House is envisaged as an attribute of this basic feature. The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore,, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

9. Consequently, the entire constitution (Fifty-Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the constitution.

10. It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.

11. On the above conclusions, it does not appear necessary or appropriate to decide the remaining question urged.

ORDER The Transfer Petition is allowed and the Writ Petition, Rule No. 2421 of 1990 on the file of the High Court of Guwahati is withdrawn to this Court for the purpose of deciding the constitutional issues and of declaring the law on the matter.

In accordance with the majority opinion, the factual controversies raised in the Writ Petition will, however, have to be decided by the High Court Applying the principles declared and laid down by the majority. The Writ Petition is, accordingly remitted to the High Court for such disposal in accordance with law.

VENKATACHALIAH, J. In these petitions the constitutional validity of the Tenth Schedule of the Constitution introduced by the Constitution (Fifty-Second Amendment) Act. 1985, is assailed. These two cases were 717 amongst a batch of Writ Petitions, Transfer Petitions, civil Appeals, Special Leave Petitions and other similar and connected matters raising common questions which were all heard together. On 12.11.1991 we made an order pronouncing our findings and conclusions upholding the constitutional validity of the amendment and of the provisions of the Tenth Schedule, except for Paragraph 7 which was declared invalid for want of ratification in terms of and as required by the proviso to Article 368 (2) of the Constitution. In the order dated 12.11.1991 our conclusions were set out and we indicated that the reasons for the conclusions would follow later. The reasons for the conclusions are now set out.

2. This order is made in Transfer Petition No. 40 of 1991 and in Writ Petition No. 17 of 1991. We have not gone into the factual controversies raised in the Writ-Petition before the Writ-Petition before the Guwahati High Court in Rule No.2421 of 1990 from which Transfer Petition No. 40 of 1991 arises. Indeed, in the order of 12th November, 1991 itself the said Writ Petition was remitted to the High Court for its disposal in accordance with law.

3. Shri F.S. Nariman, Shri Shanti Bhushan, Shri M.C.

Bhandare, Shri Kapil Sibal, Shri Sharma and shri Bhim Singh, learned counsel addressed arguments in support of the petitions. Learned Attorney-General, Shri Soli J.

Sorabjee,Shri R.K. Garg,Shri Santhosh Hegde sought to support the constitutional validity of the amendment. Shri Ram Jethmalani has attacked the validity of the amendment for the same reasons as put forward by Shri Sharma.

4. Before we proceed to record our reasons for the conclusions reached in our order dated 12th November, 1991, on the contentions raised and argued, it is necessary to have a brief look at the provisions of the Tenth Schedule.

The Statement of Objects and Reasons appended to the Bill which was adopted as the Constitution (Fifty-Second Amendment) Act, 1985 says:

“The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principles which sustain it.

With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection 718 Bill. This Bill is meant for outlawing defection and fulfilling the above assurance.” On December 8, 1967, the Lok sabha had passed an unanimous Resolution in terms following:

“a high-level Committee consisting of representatives of political parties and constitutional experts be set up immediately by Government to consider the problem of legislators changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects and make recommendations in this regard.” The said Committee known as the “Committee on Defections” in its report dated January 7, 1969, inter-alia, observed:

“Following the Fourth General Election, in the short period between March 1967 and February, 1968, the Indian political scene was characterised by numerous instances of change of party allegiance by legislators in several States. Compared to roughly 542 cases in the entire period between the First and Fourth General Election, at least 438 defections occurred in these 12 months alone.

Among Independents, 157 out of a total of 376 elected joined various parties in this period.

That the lure of office played a dominant part in decisions of legislators to defect was obvious from the fact that out of 210 defecting legislators of the States of Bihar, Haryana, Madhya Pradesh, Punjab, Rajasthan Uttar Pradesh and West Bengal, 116 were included in the Council of Ministers which they helped to bring into being by defections. The other disturbing features of this phenomenon were:

multiple acts of defections by the same persons or set of persons (Haryana affording a conspicuous example); few resignations of the membership of the legislature of explanations by individual defectors, indifference on the part of defectors to political proprieties, constituency preference or public opinion; and the belief held by the people and expressed in the press that corruption and bribery were behind some of these defections”.

(emphasis supplied) 719 The Committee on Defections recommended that a defector should be debarred for a period of one year or till such time as he resigned his seat and got himself re-elected from appointment to the office of a Minister including Deputy Minister or Speaker or Deputy Speaker, or any post carrying salaries or allowances to be paid from the Consolidated Fund of India or of the State or from the funds of Government Undertakings in public sector in addition to those to which the defector might be entitled as legislator. The Committee on Defections could not however, reach an agreed conclusion in the matter of disqualifying a defector from continuing to be a Member of Parliament/State Legislator.

Keeping in view the recommendations of the committee on Defections, the Constitution (Thirty-Second Amendment) Bill,, 1973 was introduced in the Lok Sabha on May 16, 1973.

It provided for disqualifying a Member from continuing as a Member of either House of Parliament or the State Legislature on his voluntarily giving up his membership of the political party by which he was set up as a candidate at such election or of which he became a Member after such election, or on his voting or abstaining from voting in such House contrary to any direction issued by such political party or by any person or authority authorised by it in this behalf without obtaining prior permission of such party, person or authority. The said Bill, however, lapsed on account of dissolution of the House. Thereafter, the Constitution (Forty-eight Amendment) Bill, 1979 was introduced in the Lok Sabha which also contained similar provisions for disqualification on the ground of defection.

This Bill also lapsed and it was followed by the Bill which was enacted into the Constitution (Fifty Second Amendment) Act, 1985.

5. This brings to the fore the object underlying the provisions in the Tenth Schedule. The object is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the Member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a Member of the House. The grounds of disqualification are specified in Paragraph 2 of the Tenth Schedule.

Paragraph 2(1) relates to a Member of the House belonging to a political party by which he was set up as a candidate at the election. Under 720 Paragraph 2(1) (a) such a Member would incur disqualification if he voluntarily gives up his membership of such political party. Under clause (b) he would incur the disqualification if he votes or abstains from voting in the House contrary to “any direction” issued by the political party to which he belongs or by any person or authority authorised by it in this behalf without obtaining, in either case, prior permission of such political party, person or authourity and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention. This sub para would also apply to a nominated member who is a Member of a political party on the date of his nomination as such Member or who joins a political party within six months of his taking oath.

Paragraph 2(2) deals with a Member who has been elected otherwise than as a candidate set up by any political party and would incur the disqualification if he joins any political party after such election. A nominated Member of the House would incur his disqualification under sub para (3) if he joins any political party after the expiry of six months from the date on which he takes his seat.

6. Paragraphs 3 and 4 of the Tenth Schedule, however, exclude the applicability of the provisions for disqualification under para 2 in cases of “split” in the original political party or merger of the original political party with another political party.

These provisions in the Tenth Schedule give recognition to the role of political parties in the political process.

A political party goes before the electorate with a particular programme and it sets up candidates at the election on the basis of such programme. A person who gets elected as a candidate set up by a political party is so elected on the basis of the programme of that political party. The provisions of Paragraph 2(1) (a) proceed on the premise that political propriety and morality demand that if such a person, after the election, changes his affiliation and leaves and political party which had set him up as a candidate at the election, then he should give up his Membership of the legislature and go back before the electorate. The same yard stick is applied to a person who is elected as an Independent candidate and wishes to join a political party after the election.

Paragraph 2 (1) (b) deals with a slightly different situation i.e. a variant where dissent becomes defection.

If a Member while remaining a 721 Member of the political party which had set him up as a candidate at the election, votes or abstains from voting contrary to “any direction” issued by the political party to which he belongs or by any person or authority authorised by it in this behalf he incurs the disqualification. In other words, it deals with a Member who expresses his dissent from the stand of the political party to which he belongs by voting or abstaining from voting in the House contrary to the direction issued by the political party.

Paragraph 6 of the Tenth Schedule reads:

“6 (1) If any question arises as to whether a Member of a House has become subject to disqualification under this Schedule the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:

Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such Member of the House as the House may elect in this behalf and his decision shall be final.

(2) All proceedings under sub-Paragraph (1) of this Paragraph in relation to any question as to disqualification of a Member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of Article 212.” Paragraph 7 says:

“7. Bar of jurisdiction of courts: Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a Member of a House under this Schedule.”

7. The challenge to the constitutional validity of the Amendment which introduces the Tenth Schedule is sought to be sustained of many grounds. It is urged that the constitutional Amendment introducing Paragraph 7 of the Tenth Schedule, in terms and in effect, seeks to make a change in Chapter IV of Part V of the Constitution in that it denudes the jurisdiction of the 722 Supreme Court under Article 136 of the Constitution of India and in Chapter V of part VI in that it takes away the jurisdiction of the High Courts under Article 226 and that, therefore, the legislative Bill, before presentation to the President for assent, would require to be ratified by the Legislature of not less than one half of the States by resolution to that effect. In view of the admitted position that no such ratification was obtained for the Bill, it is contended, the whole Amending Bill-not merely Paragraph 7- fails and the amendment merely remains an abortive attempt to bring about an amendment. It is further contended that the very concept of disqualification for defection is violative of the fundamental values and principles underlying Parliamentary democracy and violates an elected representative’s freedom of speech, right to dissent and freedom of conscience and is, therefore, unconstitutional as destructive of a basic feature of the Indian Constitution.

It is also urged that the investiture in the Speaker or the Chairman of the power to adjudicate disputed defections would violate an important incident of another basic feature of the Constitution, viz., Parliamentary democracy. It is contended that an independent, fair and impartial machinery for resolution of electoral disputes is an essential and important incident of democracy and that the vesting of the power of adjudication in the Speaker or the Chairman-who, in the India Parliamentary system are nominees of political parties and are not obliged to resign their party affiliations after election-is violative of this requirement.

It is alternatively contended that if it is to be held that the amendment does not attract the proviso to Article 368(2), then Paragraph 7 in so far as it takes away the power of judicial review, which, in itself, is one of the basic features of the Constitution is liable to be struck down.

8. There are certain other contentions which, upon a closer examination, raise issues more of construction than constitutionality. For instance, some arguments were expanded on the exact connotations of a “split” as distinct from a “defection” within the meaning of Paragraph 3. Then again, it was urged that under Paragraph 2(b) the expression “any direction” is so wide that even a direction,, which if given effect to and implemented might bring about a result which may itself be obnoxious to and violative of constitutional ideals and values would be a source of disqualification . These are,, indeed, matters of construction as to how,, in the context in which the occasion for the introduction of the Tenth Schedule arose and the high purpose it is intended to serve, the expression “any direction” occurring in Paragraph 723 2(b) is to be understood. Indeed, in one of the decisions cited before us (Prakash Singh Badal & Ors. v. Union of India & Ors., AIR 1987 Punjab and Haryana 263) this aspect has been considered by the High Court. The decision was relied upon before us. We shall examine it presently.

9. Supporting the constitutionality of the Amendment, respondents urge that the Tenth Schedule creates a non- justiciable constitutional area dealing with certain complex political issues which have no strict adjudicatory disposition. New rights and obligations are created for the first time uno-flatu by the Constitution and the Constitution itself has envisaged a distinct constitutional machinery for the resolution of those disputes. These rights, obligations and remedies, it is urged, which are in their very nature and innate complexities are in political thickets and are not amenable to judicial processes and the Tenth Schedule has merely recognised this complex character of the issues and that the exclusion of this area is constitutionally preserved by imparting a finality to the decisions of the Speaker or the Chairman and by deeming the whole proceedings as proceedings within Parliament or within the House of Legislature of the States envisaged in Articles 122 and 212, respectively, and further by expressly excluding the Courts’ jurisdiction under Paragraph 7.

Indeed, in constitutional and legal theory, it is urged,, there is really no ouster of jurisdiction of Courts or of Judicial Review as the subject-matter itself by its inherent character and complexities is not amenable to but outside judicial power and that the ouster of jurisdiction under Paragraph 7 is merely a consequential constitutional recognition of the non-amenability of the subject-matter to the judicial power of the State, the corollary of which is that the Speaker or the Chairman,, as the case may be, exercising powers under Paragraph 6(1) of the Tenth Schedule function not as a statutory Tribunal but as a part of the State’s Legislative Department.

It is, therefore, urged that no question of the ouster of jurisdiction of Courts would at all arise inasmuch as in the first place, having regard to the political nature of the issues, the subject-matter is itself not amenable to judicial power. It is urged that the question in the last analyses pertains to the constitution of the House and the Legislature is entitled to deal with it exclusively.

10. It is further urged that Judicial Review – apart from Judicial Review of the legislation as inherent under a written constitution -is 724 merely a branch of administrative law remedies and is by no means a basic feature of the Constitution and that, therefore, Paragraph 7, being a constitutional provision cannot be invalidated on some general doctrine not found in the Constitution itself.

11. On the contentions raised and urged at the hearing the questions that fall for consideration are the following:

(A) The Constitution (Fifty-Second Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule is destructive of the basic structure of the constitution as it is violative of the fundamental principles of Parliamentary democracy, a basic feature of the Indian constitutionalism and is destructive of the freedom of speech, right to dissent and freedom of conscience as the provisions of the Tenth Schedule seek to penalise and disqualify elected representatives for the exercise of these rights and freedoms which are essential to the sustenance of the system of Parliamentary democracy.

(B) Having regard to the legislative history and evolution of the principles underlying the Tenth Schedule, Paragraph 7 thereof in terms and in effect, brings about a change in the operation and effect of Article 136,, 226 and 227 of the Constitution of India and, therefore, the Bill introducing the amendment attracts the proviso to Article 368(2) of the constitution and would require to be ratified by the legislative of the States before the Bill is presented for Presidential assent.

(C) In view of the admitted non-compliance with proviso to Article 368(2) not only Paragraph 7 of the Tenth Schedule, but also the entire Bill resulting in the Constitution (Fifty-Second Amendment) Act, 1985, stands vitiated and the purported amendment is abortive and does not in law bring about a valid amendment.

Or whether, the effect of such non-compliance invalidates Paragraph 7 alone and the other provisions which, by themselves, do not attract the proviso do not become invalid.

(D) That even if the effect of non-ratification by the legislature 725 of the States is to invalidate Paragraph 7 alone, the whole of the Tenth Schedule fails for non- severability. Doctrine of severability, as applied to ordinary statutes to promote their constitutionality, is inapplicable to constitutional Amendments.

Even otherwise, having regard to legislative intent and scheme of the Tenth Schedule, the other provisions of the Tenth Schedule, after the severance and excision of Paragraph 7, become truncated, and unworkable and cannot stand and operate independently. The Legislature would not have enacted the Tenth Schedule without Paragraph 7 which forms its heart and core.

(E) That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts the immunity under Articles 122 and 212. The Speaker and the Chairman in relation to the exercise of the powers under the Tenth Schedule shall not be subjected to the jurisdiction of any Court.

The Tenth Schedule seeks to and does create a new and non-justiciable area of rights, obligations and remedies to be resolved in the exclusive manner envisaged by the Constitution and is not amenable to , but constitutionally immune from curial adjudicative processes.

(F) That even if Paragraph 7 erecting a bar on the jurisdiction of Courts is held inoperative, the Courts’ jurisdiction is, in any event, barred as Paragraph 6(1) which imparts a constitutional `finality’to the decision of the Speaker or the Chairman, as the case may be, and that such concept of `finality’ bars examination of the matter by the Courts.

(G) The concept of free and fair elections as a necessary concomitant and attribute of democracy which is a basic feature includes an independent impartial machinery for the adjudication of the electoral disputes. The Speaker and the Chairman do not satisfy these incidents of an independent adjudicatory machinery.

The investiture of the determinative and adjudicative jurisdiction 726 in the Speaker or the Chairman, as the case may be, would, by itself, vitiate the provision on the ground of reasonable likelihood of bias and lack of impartiality and therefore denies the imperative of an independent adjudicatory machinery. The Speaker and Chairman are elected and hold office on the support of the majority party and are not required to resign their Membership of the political party after their election to the office of the Speaker or Chairman.

(H) That even if Paragraph 7 of the Tenth Schedule is held not to bring about a change or affect Articles 136, 226 and 227 of the Constitution, the amendment is unconstitutional as it erodes and destroys judicial review which is one of the basic features of the constitution.

12. Re: Contention(A):

(The Tenth Schedule is part of the constitution and attracts the same cannons of construction as are applicable to the expounding of the fundamental law. One constitutional power is necessarily conditioned by the others as the Constitution is one “coherent document”.

Learned counsel for the petitioners accordingly say that Tenth Schedule should be read subject to the basic features of the Constitution. The Tenth Schedule and certain essential incidents of democracy, it is urged, cannot co- exist.

In expounding the processes of the fundamental law, the Constitution must be treated as a logical-whole. Westel Woodbury Willoughby in the “Constitutional Law of the United States” states:

“The Constitution is a logical whole, each provision of which is an integral part thereof, and it is, therefore,, logically proper, and indeed imperative, to construe one part in the light of the provisions of the other parts.” [2nd Edn. Vol.1 page 65] A constitutional document outlines only broad and general principles meant to endure and be capable of flexible application to changing circumstances – a distinction which differentiates a statue from a Charter under which all statutes are made. Cooley on “Constitutional Limitations” says:

727 “Upon the adoption of an amendment to a constitution, the amendment becomes a part thereof; as much so as if it had been originally incorporated in the Constitution; and it is to be construed accordingly.” [8th Edn. Vol. 1 page 129]

13. In considering the validity of a constitutional amendment the changing and the changed circumstances that compelled the amendment are important criteria. The observations of the U.S. Supreme Court in Maxwell v. Dow (44 lawyer’s Edition 597 at page 605) are worthy of note:

“….to read its language in connection with the known condition of affairs out of which the occasion for its adoption may have arisen and then to construe it,, if there be therein any doubtful expressions, in a way so far as is reasonably possible, to forward the known purpose or object for which the amendment was adopted…..” The report of the Committee on Defections took note of the unprincipled and unethical defections induced by considerations of personal gains said:

“….What was most heartening was the feeling of deep concern over these unhealthy developments in national life on the part of the leaders of political parties themselves. Parliament mirrored this widespread concern……” [page 1]

14. It was strenuously contended by Shri Ram Jethmalani and Shri Sharma that the provisions of the Tenth Schedule constitute a flagrant violation of those fundamental principles and values which are basic to the sustenance of the very system of Parliamentary democracy. The Tenth Schedule, it is urged, negates those very foundational assumptions of Parliamentary democracy; of freedom of speech; of the right to dissent and of the freedom of conscience. It is urged that unprincipled political defections may be an evil, but it will be the beginning of much greater evils if the remedies, graver than the disease itself, are adopted. The Tenth Schedule, they say, seeks to throw away the baby with the bath-water. Learned counsel argue that “crossing the floor”, as it has come to be called, mirrors the meanderings of a troubled conscience on issues of political 728 morality and to punish an elected representative for what really amounts to an expression of conscience negates the very democratic principles which the Tenth Schedule is supposed to preserve and sustain. Learned counsel referred to the famous speech to the Electors of Bristol, 1774, where Edmund Burke reportedly said:

“It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention.

It is his duty to sacrifice his repose, his pleasures, his satisfactions to theirs -and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living…. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.” [see: Parliament Functions, Practice & Procedures by JAG Griffith and Michael Ryle 1989 Edn. page 70]

15. Shri Jethmalani and Shri sharma also relied upon certain observations of Lord Shaw in Amalgamated Society or Railway Servants v. Osborne, [1910 A.C. 87] to contend that a provision which seeks to attach a liability of disqualification of an elected Member for freely expressing his views on matters of conscience, faith and political belief are indeed restraints on the freedom of speech – restraints opposed to public policy. In that case a registered trade union framed a rule enabling it to levy contributions on the Members to support its efforts to obtain Parliamentary representation by setting up candidates at elections. It also framed a rule requiring all such candidates to sign and accept the conditions of the Labour Party and be subject to its whip. The observations in the case relied upon by learned counsel are those of Lord Shaw of Dunfermline who observed:

“Take the testing instance: should his view as to right and wrong on a public issue as to the true line of service to the realm, as to the real interests of the constituency which has elected him, or even of the society which pays him, differ from the decision of the parliamentary party and the maintenance by it of its 729 policy, he has come under a contract to place his vote and action into subjection not to his own convictions, but to their decisions. My Lords, I do not think that such a subjection is compatible either with the spirit of our parliamentary constitution or with that independence and freedom which have hither-to been held to lie at the basis of representative government in the United Kingdom.” [page 111] “For the people having reserved to themselves the choice of their representatives, as the fence to their properties, could do it for no other end but that they might always be freely chosen, and so chosen freely act and advise, as the necessity of the commonwealth and the public good should upon examination and mature debate be judged to require…..” [page 113] “Still further, in regard to the Members of Parliament himself, he too is to be free; he is not to be the paid mandatory of any man, or organization of men, nor is he entitled to bind himself to subordinate his opinions on public questions to others, for wages, or at the peril of pecuniary loss; and any contract of this character would not be recognized by a Court of law, either for its enforcement or in respect of its breach…” [page 115] It is relevant to observe here that the rule impugned in that case was struck down by the Court of Appeal – whose decision was upheld by the House of Lords – on grounds of the Society’s competence to make the rule. It was held that the rule was beyond its powers. Lord Shaw, however, was of the view that the impugned rule was opposed to those principles of public policy essential to the working of a representative government. The view expressed by Lord Shaw was not the decision of the House of Lords in the case.

But, the real question is whether under the Indian constitutional scheme is there any immunity from constitutional correctives against a 730 legislatively perceived political evil of unprincipled defections induced by the lure of office and monetary inducements?

16. The points raised in the petitions are, indeed, far-reaching and of no small importance – invoking the `sense of relevance of constitutionally stated principles to unfamiliar settings’. On the one hand there is the real and imminent threat to the very fabric of Indian democracy posed by certain levels of political behavior conspicuous by their utter and total disregard of well recognised political proprieties and morality. These trends tend to degrade the tone of political life and, in their wider propensities, are dangerous to and undermine the very survival of the cherished values of democracy. there is the legislative determination through experimental constitutional processes to combat that evil.

On the other hand, there are, as in all political and economic experimentations, certain side-effects and fall- out which might affect and hurt even honest dissenters and conscientious objectors. These are the usual plus and minus of all areas of experimental legislation. In these areas the distinction between what is constitutionally permissible and what is outside it is marked by a `hazy gray-line’ and it is the Court’s duty to identify, ” darken and deepen” the demarcating line of constitutionality — a task in which some element of Judges’ own perceptions of the constitutional ideals inevitably participate. There is no single litmus test of constitutionality. Any suggested sure decisive test, might after all furnish a “transitory delusion of certitude” where the “complexities of the strands in the web of constitutionality which the Judge must alone disentangle” do not lend themselves to easy and sure formulations one way or the other. It is here that it becomes difficult to refute the inevitable legislative element in all constitutional adjudications.

17. All distinctions of law – even Constitutional law – are, in the ultimate analyses, “matters of degree”. At what line the `white’ fades into the `black’ is essentially a legislatively perceived demarcation.

In his work “Oliver Wendell Holmes – Free Speech and the Living Constitution” (1991 Edition: New York University Publication) Pohlman says:

“All distinctions of law, as Holmes never tired of saying, were 731 therefore “matters of degree.” Even in the case of constitutional adjudication, in which the issue was whether a particular exercise of power was within or without the legislature’s authority, the judge’s decision “will depend on a judgment or intuition more subtle than any articulate major premise.” As the particular exertion of legislative power approached the hazy gray line separating individual rights from legislative powers, the judge’s assessment of constitutionality became a subtle value judgment. The judge’s decision was therefore not deductive, formal, or conceptual in any sense.

[page 217] [emphasis supplied] Justice Holmes himself had said:

“Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace;

the determinations are made one way or the other on a very slight preponderance of feeling, rather than articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little further to the one side or to the other.” [Emphasis supplied] [See: “Theory of Torts” American Law Review 7 (1873) The argument that the constitutional remedies against the immorality and unprincipled chameleon-like changes of political hues in pursuit of power and pelf suffer from something violative of some basic feature of the Constitution, perhaps, ignores the essential organic and evolutionary character of a Constitution and its flexibility as a living entity to provide for the demands and compulsions of the changing times and needs. The people of this country were not beguiled into believing that the menace of unethical and unprincipled changes of political affiliations is something which the law is helpless against and is to be endured as a necessary concomitant of freedom of conscience. The onslaughts on their sensibilities 732 by the incessant unethical political defections did not dull their perception of this phenomenon as a canker eating into the vitals of those values that make democracy a living and worth-while faith. This is prominently an area where Judges should defer to legislative perception of and reaction to the pervasive dangers of unprincipled defections to protect the community. “Legislation may begin where an evil begins”. Referring to the judicial philosophy of Justice Holmes in such areas, Pohlman again says:

“A number of Holmes’s famous aphorisms point in the direction that judges should defer when the legislature reflected the pervasive and predominant values and interests of the community. He had, for example, no “practical” criterion to go on except “what the crowd wanted.” He suggested, in a humorous vein that his epitaph……………..No judge ought to interpret a provision of the Constitution in a way that would prevent the American people from doing what it really wanted to do. If the general consensus was that a certain condition was an “evil” that ought to be corrected by certain means, then the government had the power to do it: “Legislation may begin where an evil begins”; “Constitutional law like other mortal contrivances has to take some chances.” “Some play must be allowed to the joints if the machine is to work.” All of these rhetorical flourishes suggest that Holmes deferred to the legislature if and when he thought it accurately mirrored the abiding beliefs, interests, and values of the american public.” (emphasis supplied) [See: Justice Oliver Wendell Holmes -Free Speech and the Living Constitution by H.L. Pohlman 1991 Edn. page 233]

18. Shri Sharma contends that the rights and immunities under Article 105(2) of the Constitution which according to him are placed by judicial decisions even higher than the fundamental-right in Article 19(1)(a), have violated the Tenth Schedule. There are at least two objections to the acceptability of this contention. The first is that the Tenth Schedule does not impinge upon the rights or immunities under Article 105(2). Article 105(2) of the Constitution provides:

“105. Powers, privileges, etc., of the Houses of Parliament and 733 of the Members and committees thereof.- (1)……..

(2) No Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.

The freedom of speech of a Member is not an absolute freedom. That apart, the provisions of the Tenth Schedule do not purport to make a Member of a House liable in any `Court’ for anything said or any vote given by him in Parliament. It is difficult to conceive how Article 105(2) is a source of immunity from the consequences of unprincipled floor-crossing.

Secondly, on the nature and character of electoral rights this Court in Jyoti Basu & Ors. v. Debi Ghosal & 3 S.C.R. 318 observed:

“A right to elect, fundamental though it is to a democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation.’ [Page 326] Democracy is a basic feature of the constitution.

Whether any particular brand or system of Government by itself, has this attribute of a basic feature, as lone as the essential characteristics that entitle a system of government to be called democratic are otherwise satisfied is not necessary to be gone into. Election conducted at regular, prescribed intervals is essential to the democratic system envisaged in the constitution. So is the need to protect and sustain the purity of the electoral process.

That may take within it the quality, efficacy and adequacy of the machinery for resolution of electoral disputes. From that it does not necessarily follow that the rights and immunities under sub-article (2) of Article 105 of the Constitution, are elevated into fundamental rights and that the Tenth Schedule would have to be struck down for its inconsistency with Article 734 105 (2) as urged by Shri Sharma.

19.Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefor, the means and essence of the democratic process. During the debates the Members put forward different points of view.

Members belonging to the same political party may also have, and may give expression to, differences of opinion on a matter. Not unoften the view expressed by the Members in the House have resulted in substantial modification, and even the withdrawal, of the proposals under consideration.

Debate and expression of different points of view, thus, serve an essential and healthy purpose in the functioning of Parliamentary democracy. At times such an expression of views during the debate in the House may lead to voting or abstenance from voting in the House otherwise than on party lines.

But a political party functions on the strength of shared beliefs. Its own political stability and social utility depends on such shared beliefs and concerted action of its Members in furtherance of those commonly held principles. Any freedom of its members to vote as they please independently of the political party’s declared policies will not only embarrass its public image and popularity but also undermine public confidence in it which, in the ultimate analysis, is its source of sustenance – nay, indeed, its very survival. Intra-party debates are of course a different thing. But a public image of disparate stands by Members of the same political party is not looked upon,in political tradition, as a desirable state of things.

Griffith and Ryle on “Parliament, Functions, Practice & Procedure” (1989 Edn. page 119) say:

“Loyalty to party is the norm, being based on shared beliefs. A divided party is looked on with suspicion by the electorate. It is natural for Members to accept the opinion of their Leaders and Spokesmen on the wide variety of matters on which those Members have no specialist knowledge.

Generally Members will accept majority decisions in the party even when they disagree. It is understandable therefore that a Member who rejects the party whip even on a single occasion will attract attention and more criticism than sympathy.

To abstain from voting when required by party to vote is to suggest a degree of unreliability. To vote against party is disloyalty. To join with others in abstention 735 or voting with the other side smacks of conspiracy.” (emphasis supplied) Clause (b) of sub-para (1) of Paragraph 2 of the Tenth Schedule gives effect to this principle and sentiment by imposing a disqualification on a Member who votes or abstains from voting contrary to “any directions” Issued by the political party. The provision, however, recognises two exceptions: one when the Member obtains from the political party prior permission to vote or abstain from voting and the other when the Member has voted without obtaining such permission but his action has been condoned by the political party. This provision itself accommodates the possibility that there may be occasions when a Member may vote or abstain from voting contrary to the direction of the party to which he belongs. This, in itself again, may provide a clue to the proper understanding and construction of the expression “Any Direction” in clause (b) of Paragraph 2(1) whether really all directions or whips from the party entail the statutory consequences or whether having regard to the extra-ordinary nature and sweep of the power and the very serious consequences that flow including the extreme penalty of disqualification the expression should be given a meaning confining its operation to the contexts indicated by the objects and purposes of the Tenth Schedule. We shall deal with this aspect separately.

20. The working of the modern Parliamentary democracy is complex. The area of the inter-se relationship between the electoral constituencies and their elected representatives has many complex features and overtones.

The citizen as the electorate is said to be the political sovereign. As long as regular general elections occur, the electorate remains the arbiter of the ultimate composition of the representative legislative body to which the Government of the day is responsible. There are, of course,, larger issues of theoretical and philosophical objections to the legitimacy of a representative Government which might achieve a majority of the seats but obtains only minority of the electoral votes. It is said that even in England this has been the phenomenon in every general elections in this century except the four in the years 1900, 1918, 1931 and 1935.

But in the area of the inter-relationship between the constituency and its elected representative, it is the avowed endeavour of the latter to requite the expectations of his voters. Occasionally, this might conflict with his political obligations to the political party sponsoring him which expects– 736 and exacts in its own way – loyalty to it. This duality of capacity and functions are referred to by a learned author thus:

“The functions of Members are of two kinds and flow from the working of representative government.

When a voter at a general election, in that hiatus between parliaments, puts his cross against the name of the candidate he is [most often] consciously performing two functions: seeking to return a particular person to the house of commons as Member for that constituency; and seeking to return to power as the government of the country a group of individuals of the same party as that particular person. The voter votes for a representative and for a government. He may know that the candidate he votes has little chance of being elected………..” “When a candidate is elected as a Member of the House of Commons, he reflects those two functions of the voter. Whatever other part he may play, he will be a constituency M.P. As such, his job will be to help his constituents as individuals in their dealings with the departments of State. He must listen to their grievances and often seek to persuade those in authority to provide remedies.

He must have no regard to the political leanings of his constituents for the represents those who voted against him or who did not vote at all as much as those who voted for him. Even if he strongly disagrees with their complaint he may still seek to represent it, though the degree of enthusiasm with which he does so is likely to be less great.” [See: Parliament – Function. Practice and Procedures by JAG Griffith and Ryle – 1989 Edn.

page 69] So far as his own personal views on freedom of conscience are concerned,, there may be exceptional occasions when the elected representative finds himself compelled to consider more closely how he should act.

Referring to these dilemmas the authors say:

“….The first is that he may feel that the policy of his party whether it is in office or in opposition, on a particular matter is not one of which he approves. He may think this because of his personal opinions or because of its special consequences 737 for his constituents or outside interests or because it reflects a general position within the party with which he cannot agree. On many occasions, he may support the party despite his disapproval. But occasionally the strength of his feeling will be such that he is obliged to express his opposition either by speaking or by abstaining on a vote or even by voting with the other side.

Such opposition will not pass unnoticed and, unless the matter is clearly one of conscience, he will not be popular with the party whips.

The second complication is caused by a special aspect of parliamentary conduct which not frequently transcends party lines. Members, who are neither Ministers nor front-bench Opposition spokesmen, do regard as an important part of their function the general scrutiny of Governmental activity. This is particularly the role of select committees which have, as we shall see, gained new prominence since 1979. No doubt, it is superficially paradoxical to see Members on the Government side of the House joining in detailed criticism of the administration and yet voting to maintain that Government in office. But as one prominent critic of government has said, there is nothing inherently contradictory in a Member sustaining the Executive in its power or helping it to overcome opposition at the same time as scrutinising the work of the executive in order both to improve it and to see that power is being exercised in a proper and legitimate fashion.” [page 69 and 70] Speaking of the claims of the political party on its elected Member Rodney Brazier says:

“Once returned to the House of Commons the Member’s party expects him to be loyal. This is not entirely unfair or improper, for it is the price of the party’s label which secured his election. But the question is whether the balance of a Member’s obligations has tilted too far in favour of the requirements of party. The nonsense that a Whip– even a three-line whip–is no more than a summons to attend the House, and that, once there, the Member is completely free to speak and vote as he thinks fit, was 738 still being put about, by the Parliamentary Private Secretary to the Prime Minister, as recently as 1986. No one can honestly believe that. Failure to vote with his party on a three-line whip without permission invites a party reaction. This will range (depending on the circumstances and whether the offence is repeated) from a quiet word from a Whip and appeals to future loyalty, to a ticking- off or a formal reprimand (perhaps from the Chief Whip himself), to any one of a number of threats.

The armoury of intimidation includes the menaces that the Member will never get ministerial office, or go on overseas trips sponsored by the party, or be nominated by his party for Commons Committee Memberships, or that he might be deprived of his party’s whip in the House, or that he might be reported to his constituency which might wish to consider his behaviour when reselection comes round again…..Does the Member not enjoy the Parliamentary privilege of freedom of speech? How can his speech be free in the face of such party threats? The answer to the inquiring citizen is that the whip system is part of the conventionally established machinery of political organisation in the house, and has been ruled not to infringe a Member’s parliamentary privilege in any way. The political parties are only too aware of utility of such a system,, and would fight in the last ditch to keep it.” [See; Constitutional Reform – Reshaping the British Political System by Rodney Brazier, 1991 Edn. pages 48 and 49] The learned author, referring to cases in which an elected Member is seriously unrepresentative of the general constituency opinion, or whose personal behaviour falls below standards acceptable to his constituents commends that what is needed is some additional device to ensure that a Member pays heed to constituents’ views. Brazier speaks of the efficacy of device where the constituency can recall its representative. Brazier says:

“What sort of conduct might attract the operation of the recall power? First, a Member might have misused his Membership of the House, for example to further his personal financial interests in a manner offensive to his constituents. They might consider that the action taken against him by the house (or, indeed, lack 739 of action) was inadequate…….Thirdly, the use of a recall power might be particularly apt when a member changed his party but declined to resign his seats and fight an immediate by-election. It is not unreasonable to expect a Member who crosses the floor of the House, or who joins a new party, to resubmit himself quickly to the electors who had returned him in different colours. Of course, in all those three areas of controversial conduct the ordinary process of reselection might well result in the Member being dropped as his party’s candidate (and obviously would definitely have that result in the third case). But that could only occur when the time for reselection came; and in any event the constituency would still have the Member representing them until the next general election. A cleaner and more timely parting of the ways would be preferable. Sometimes a suspended sentence does not meet the case.” [page 52 and 53] Indeed, in a sense an anti-defection law is a statutory variant of its moral principle and justification underlying the power of recall. What might justify a provision for recall would justify a provision for disqualification for defection. Unprincipled defection is a political and social evil. It is perceived as such by the legislature. People, apparently, have grown distrustful of the emotive political exultations that such floor-crossings belong to the sacred area of freedom of conscience, or of the right to dissent or of intellectual freedom. The anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct– whose awkward erosion and grotesque manifestations have been the base of the times – above certain theoretical assumptions which in reality have fallen into a morass of personal and political degradation.

We should, we think, defer to this legislative wisdom and perception. The choices in constitutional adjudications quite clearly indicate the need for such deference. “Let the end be legitimate, let it be within the scope of the Constitution and all means which are appropriate, which are adopted to that end…” are constitutional. [See Kazurbach v. Morgan: [1966] USSC 120; 384 US 641].

21. It was then urged by Shri Jethmalani that the distinction between the conception of “defection” and “split” in the Tenth Schedule is so thin and artificial that the differences on which the distinction rests are indeed 740 an outrageous defiance of logic. Shri Jethmalani urged that if floor-crossing by one Member is an evil, then a collective perpetration of it by 1/3rd of the elected Members of a party is no better and should be regarded as an aggravated evil both logically and from the part of its aggravated consequences. But the Tenth Schedule, says Shri Jethmalani, employs its own inverse ratiocination and perverse logic to declare that where such evil is perpetrated collectively by an artificially classified group of not less than 1/3rd Members of that political party that would not be a “defection” but a permissible “split” or “merger”.

This exercise to so hold-up the provision as such crass imperfection is performed by Shri Jethmalani with his wonted forensic skill. But we are afraid what was so attractively articulated, on closer examination, is, perhaps, more attractive than sound. The underlying premise in declaring an individual act of defection as forbidden is that lure of office or money could be presumed to have prevailed.

Legislature has made this presumption on its own perception and assessment of the extant standards of political proprieties and morality. At the same time legislature evisaged the need to provide for such “floor-crossing” on the basis of honest dissent. That a particular course of conduct commended itself to a number of elected representatives might, in itself, lend credence and reassurance to a presumption of bonafide. The presumptive impropriety of motives progressively weakens according as the numbers sharing the action and there is nothing capricious and arbitrary in this legislative perception of the distinction between `defection’ and `split’.

Where is the line to be drawn? What number can be said to generate a presumption of bonafides ? Here again the Courts have nothing else to go by except the legislative wisdom and, again, as Justice Holmes said, the Court has no practical criterion to go by except “what the crowd wanted”.

We find no substance in the attack on the statutory distinction between “defection” and “split”.

Accordingly we hold:

“that the Paragraph 2 of the Tenth Schedule to the Constitution is valid. Its provisions do not suffer from the vice of subverting democratic rights of elected Members of Parliament and the Legislatures of the States. It does not violate their freedom of 741 speech, freedom of vote and conscience as contended.

The Provisions of Paragraph 2 do not violate any rights or freedom under Articles 105 and 194 of the Constitution.

The provisions are salutory and are intended to strengthen the fabric of Indian Parliamentary democracy by curbing unprincipled and unethical political defections.

The contention that the provisions of the Tenth Schedule, even with the exclusion of Paragraph 7, violate the basic structure of the Constitution in they affect the democratic rights of elected Members and, therefore, of the principles of Parliamentary democracy is unsound and is rejected.” 22. Re: Contention (B):

The thrust of the point is that Paragraph 7 brings about a change in the provisions of chapter IV of Part V and chapter V of Part VI of the Constitution and that, therefore, the amending Bill falls within proviso to Article 368 (2). We might, at the outset, notice Shri Sibal’s submission on a point of construction of Paragraph 7. Shri Sibal urged that Paragraph 7, properly construed, does not seek to oust the jurisdiction of courts under Articles, 136, 226 and 227 but merely prevents an interlocutory intervention or a quia-timet action. He urged that the words “in respect of any matters connected with the disqualification of a Member” seek to bar jurisdiction only till the matter is finally decided by the speaker or Chairman, as the case may be, and does not extend beyond that stage and that in dealing with the dimensions of exclusion of the exercise of judicial power the broad considerations are that provisions which seek to exclude Courts’ jurisdiction shall be strictly construed. Any construction which results in denying the Courts’ it, it is urged, not favoured. Shri Sibhal relied upon the following observations of this Court in H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur & Ors: v. Union of India, [1970] INSC 253; [1971] 1 SCC 85:

“…The proper forum under our Constitution for determining a legal dispute is the Court which is by training and experience, assisted by properly qualified advocates, fitted to perform that task.

A provision which purports to exclude the jurisdiction of the Courts in certain matters and to deprive the aggrieved party 742 of the normal remedy will be strictly construed, for it is a principle not to be whittled down that an aggrieved party will not, unless the jurisdiction of the Courts is by clear enactment or necessary implication barred, be denied his right to seek recourse to the Courts for determination of his rights……….”.

“The Court will avoid imputing to the Legislature an intention to enact a provision which flouts notions of justice and norms of fairplay, unless a contrary intention is manifest from words plain and unambiguous. A provision in a statute will not be construed to defeat its manifest purpose and general values which animate its structure. In an avowedly democratic polity, statutory provisions ensuring the security of fundamental human rights including the right to property will, unless the contrary mandate be precise and unqualified, be construed liberally so as to uphold the right.

These rules apply to the interpretation of constitutional and statutory provisions alike.” [page 94-95] It is true that the provision which seeks to exclude the jurisdiction of Courts is strictly construed. See also, Mask & Co., v. Secretary of State, AIR 1940 P.C. 105.

But the rules of construction are attracted where two or more reasonably possible constructions are open on the language of the statute. But, here both on the language of paragraph 7 and having regard to the legislative evolution of the provision, the legislative intent is plain and manifest. The words “no Court shall have any jurisdiction in respect of any matter connected with the disqualification of a member” are of wide import and leave no constructional options. This is reinforced by the legislative history of the anti-defection law. The deliberate and purposed presence of Paragraph 7 is clear from the history of the previous proposed legislations on the subject. A comparison of the provisions of the Constitution (Thirty-second Amendment) Bill, 1973 and the Constitution (Forty-eight Amendment) Bill, 1978, (both of which had lapsed) on the one hand and the Constitution (52nd Amendment) Bill, 1985, would bring-out the avowed and deliberate intent of Paragraph 7 in the Tenth Schedule. The previous constitution (32th and 48th Amendment) Bills contained similar provisions for 743 disqualification on grounds of defections, but these Bills did not contain any clause ousting the jurisdiction of the court. Determination of disputed disqualifications was left to the Election Commission as in the case of other disqualifications under Article 102 and 103 in the case of members of Parliament and Articles 191 and 192 in the case of Members of Legislature of the States. The Constitution (Fifty-second Amendment) Bill for the first time envisaged the investiture of the power to decide disputes on the speaker or the Chairman. The purpose of the enactment of Paragraph 7, as the debates in the House indicate, was to bar the jurisdiction of the Courts under Articles 136, 226 and 227 of the Constitution of India, Shri Sibal’s suggested contention would go against all these over-whelming interpretative criteria apart from its unacceptability on the express language of paragraph 7.

23. But it was urged that no question of change in Articles 136, 226 and 227 of the Constitution within the meaning of clause (b) of the proviso to Article 368(2) arises at all in view of the fact that the area of these rights and obligations being constitutionally rendered non- justiciable, there is no judicial review under Articles 136,226 and 227 at all in the first instance so as to admit of any idea of its exclusion. Reliance was placed on the decisions of this Court in Sri Sankari Prasad Singh Deo v.

Union of India and State of Bihar, [1951] INSC 45; [1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1964] INSC 246; [1965] 1 SCR 933.

24. In Sankari Prasad’s case, the question was whether the Amendment introducing Articles 31A and 31B in the Constitution required ratification under the said proviso.

Repelling this contention it was observed:

“It will be seen that these articles do not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of certain kind of property from the operation of articles 13 read with other relevant articles in Part III, while article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under Article 13. It is not correct to say that the powers of the High Court under Article 226 to issue writs “for the enforcement of any of the rights conferred by Part III” or of this Court under Articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same 744 as they were before: only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, no because their powers were curtailed in any manner or to any extent, but because there would be no occasion hereafter for the exercise of their power in such cases.” [1982 SCR 89 at 108] In Sajjan Singh’s case, a similar contention was raised against the validity of the Constitution (17th Amendment) Act, 1964 by which Article 31 A was again amended and 44 statutes was whether the amendment required ratification under the proviso the Article 368. This Court noticed the question thus :

“The question which calls for our decision is: what would be the requirement about making an amendment in a constitutional provision contained in Part III, if as a result of the said amendment, the powers conferred on the High Courts under Article 226 are likely to be affected?” [P. 940] Negativing the challenge to the amendment on the ground of nonratification, it was held:

“…. Thus, if the pith and substance test is applied to the amendment made by the impugned Act, it would be clear that Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfillment of the socio-economic policy in which the party in power believes. If that be so, the effect of the amendment on the area over which the High Courts’powers prescribed by Article 226 operate, is incidental and in the present case can be described as of an insignificant order. The impugned Act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure.

That is why we think that the argument that the impugned Act falls under the proviso, cannot be sustained….” [P.944] 745 The propositions that fell for consideration is Sankari Prasad Singh’s and Sajjan Singh’s cases are indeed different. There the jurisdiction and power of the Courts under Articles 136 and 226 were not sought to be taken away nor was there any change brought about in those provisions either “in terms or in effect”, since the very rights which could be adjudicated under and enforced by the Courts were themselves taken away by the Constitution. The result was that there was no area for the jurisdiction of the Courts to operate upon. Matters are entirely different in the context of paragraph 7. Indeed the aforesaid cases, by necessary implication support the point urged for the petitioners.

The changes in Chapter IV of Part V and Chapter V of Part VI envisaged by the proviso need not be direct. The change could be either “in terms of or in effect”. It is not necessary to change the language of Articles 136 and 226 of the Constitution to attract the proviso. If in effect these Articles are rendered ineffective and made inapplicable where these articles could otherwise have been invoked or would, but for Paragraph 7, have operated there is `in effect’ a change in those provisions attracting the proviso.

Indeed this position was recognised in Sajjan Singh’s case where it was observed:

“If the effect of the amendment made in the fundamental rights on Article 226 is direct and not incidental and is of a very significant order, different considerations may perhaps arise.” [P.944] In the present cases, though the amendment does not bring in any change directly in the language of Article 136, 226 and 227 of the Constitution, however, in effect paragraph 7 curtails the operation of those Articles respecting matters falling under the Tenth Schedule. There is a change in the effect in Article 136, 226 and 227 within the meaning of clause (b) of the proviso to Article 368(2).

Paragraph 7, therefore, attracts the proviso and ratification was necessary.

Accordingly, on Point B, we hold:

“That having regard to the background and evolution of the principles underlying the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, the provisions of Paragraph 7 of the Tenth Schedule of the constitution in terms and in effect bring 746 about a change in the operation and effect to Articles 136, 226 and 227 of the Constitution of India and, therefore, the amendment would require to be ratified in accordance with the proviso to sub-Article (2) of Article 368 of the Constitution of India.” 25. Re: Contentions `C’ and `D’ :

The criterion for determining the validity of a law is the competence of law-making authority. The competence of the law-making authority would depend on the ambit of the legislative power, and the limitations imposed thereon as also the limitations on mode of exercise of the power.

Though the amending power in a constitution is in the nature of a constituent power and differs in content from the Legislative power, the limitations imposed on the constituent power my be substantive as well as procedural.

Substantive limitations are those which restrict the field of exercise of the amending power and exclude some areas fro its ambit. Procedural limitations are those which impose restrictions with regard to the mode of the exercise of the amending power. Both these limitations, however, touch and affect the constituent power itself, disregard of which invalidates its exercise.

26. The Constitution provides for amendment in Articles 4, 169, 368, paragraph 7 of Fifth Schedule and paragraph 21 of Sixth Schedule. Article 4 makes provisions for amendment of the First and the Fourth Schedules, Article 169 provides for amendment in the provision of the Constitution which may be necessary for abolition or creation of Legislative Councils in States, paragraph 7 of the Fifth Schedule provides for amendment of the Fifth Schedule and paragraph 21 of Sixth Schedule provides for amendment of the Sixth Schedule. All these provisions prescribe that the said amendments can be made by a law made by Parliament which can be passed like any other law by a simple majority in the House of Parliament. Article 368 confers the power to amend the rest of the provisions of the Constitution. In sub- Article (2) of Article 368, a special majority – two-thirds of the members of each House of Parliament present and voting and majority of total membership of such House – is required to effectuate the amendments. The proviso to sub- article (2) of Article 368 imposes a further requirement that if any change in the provisions set out in clauses (a) to (e) of the proviso, is intended it would then be necessary that the amendment 747 be ratified by the legislature of not less than one-half of the States.

Although there is no specific enumerated substantive limitation on the power in Article 368, but as arising from very limitation in the word `amend’, a substantive limitation is inherent on the amending power so that the amendment does not alter the basic structure or destroy the basic features of the Constitution. The amending power under Article 368 is subject to the substantive limitation in that the basic structure cannot be altered or the basic features of the Constitution destroyed. The limitation requiring a special majority is a procedural one. Both these limitations impose a fetter on the competence of Parliament to amend the Constitution and any amendment made in disregard of these limitations would go beyond the amending power.

27. While examining the constitutional validity of laws the principle that is applied is that if it is possible to construe a statute so that its validity can be sustained against a constitutional attack it should be so construed and that when part of a statute is valid and part is void, the valid part must be separated from the invalid part.

This is done by applying the doctrine of severability. The rationale of this doctrine has been explained by Cooley in the following words;

“It will sometimes be found that an act of the legislature is opposed in some of its provisions to the constitution, while others, standing by themselves, would be unobjectionable. So the forms observed in passing it may be sufficient for some of the purposes sought to be accomplished by it, but insufficient for others. In any such case the portion which conflicts with the constitution, or inregard to which the necessary conditions have not been observed, must be treated as a nullity.

Whether the other parts of the statute must also be adjudged void because of the association must depend upon a consideration of the object of the law, and in what manner and to what extent the unconstitutional portion affects the remainder. A statute, it has been said, is judicially held to be unconstitutional, because it is not within the scope of legislative authority; it may either propose to accomplish something prohibited by the constitution, or to accomplish some lawful, and even laudable object, by means repugnant to the Constitution of the United States 748 or of the State. A statute may contain some such provisions, and yet the same act, having received the sanction of all branches of the legislature, and being in the form of law, may contain other useful and salutary provisions, not obnoxious to any just constitutional exception. It would be inconsistent with all just principles of constitutional law to adjudge these enactments void because they are associated in the same act, but not connected with or dependent on others which are unconstitutional.” [Cooley’s Constitutional Limitations; 8th Edn. Vol. 1, p. 359-360] In R.M.D. Chamarbaugwalla v. Union of India, [1957] INSC 32; [1957] SCR 930, this Court has observed:

“The question whether a statute, which is void in part is to be treated as void in toto, or whether it is capable of enforcement as to that part which is valid is one which can arise only with reference to laws enacted by bodies which do not possess unlimited powers of legislation as, for example, the legislatures in a Federal Union. The limitation on their powers may be of two kinds: It may be with reference to the subject-matter on which they could legislate, as, for example, the topics enumerated in the Lists in the Seventh Schedule in the Indian Constitution, ss. 91 and 92 of the Canadian Constitution, and s. 51 of the Australian Constitution; or it may be with reference to the character of the legislation which they could enact in respect of subjects assigned to them as for example, in relation to the fundamental rights guaranteed in Part III of the Constitution and similar constitutionally protected rights in the American and other Constitutions. When a legislature whose authority is subject to limitations aforesaid enacts a law which is wholly in excess of its powers, it is entirely void and must be completely ignored. But where the legislation falls in part within the area allotted to it and in part outside it, it is undoubtedly void as to the latter; but does it on that account become necessarily void in its entirety? The answer to this question must depend on whether what is valid could be separated from what 749 is invalid, and that is a question which has to be decided by the court on a consideration of the provisions of the Act.” [P.940] The doctrine of severability has been applied by this Court in cases of challenge to the validity of an amendment on the ground of disregard of the substantive limitations on the amending power, namely, alteration of the basic structure. But only the offending part of the amendment which had the effect of altering the basic structure was struck down while the rest of the amendment was unheld, See : Shri Kesavananda Bharti Sripadagalavaru v. State of Kerala, [1973] Supp. SCR 1; Minerva Mills Ltd.& Ors. v. Union of India & Ors., [1980] INSC 141; [1981] 1 SCR 206; P. Sambhamurthy & Ors, etc. v. State of Andhra Pradesh & Anr., [1986] INSC 278; [1987] 1 SCR 879.

28.Is there anything in the procedural limitations imposed by sub- Article (2) of Article 368 which excludes the doctrine of severability in respect of a law which violates the said limitations? Such a violation may arise when there is a composite Bill or what is in statutory context or jargon called a `Rag-Bag’ measure seeking amendments to several statutes under one amending measure which seeks to amend various provisions of the Constitution some of which may attract clauses (a) to (e) of the proviso to Article 368(2) and the Bill, though passed by the requisite majority in both the Houses of Parliament has received the assent of the President without it being sent to States for ratification or having been so sent fails to receive such ratification from not less than half the States before the Bill is presented for assent. Such an Amendment Act is within the competence of Parliament insofar as it relates to provisions other than those mentioned in clauses (a) to (e) of proviso to Article 368(2) but in respect of the amendments introduced in provisions referred to in clauses (a) to (e) of proviso to Article 368(2), Parliament alone is not competent to make such amendments on account of some constitutionally recognised federal principle being invoked. If the doctrine of severability can be applied it can be upheld as valid in respect of the amendments within the competence of Parliament and only the amendments which Parliament alone was not competent to make could be declared invalid.

29. Is there anything compelling in the proviso to Article 368(2) requiring it to be construed as excluding the doctrine of severability to such an amendment? It is settled rule of statutory construction that “the proper function of a proviso is to except and deal with a case which could 750 otherwise fall within the general language of the main enactment, and its effect is confined to that case” and that where “the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms”. [See : Madras & Southern Mahratta railway company v. Bezwada Municipality, (1944) 71 I.A. 133 at P. 122;

Commissioner of Income Tax, Mysore v. Indo-Mercantile Bank Ltd., [1959] Supp. 2 SCR 256 at p. 266.

The proviso to Article 368(2) appears to have been introduced with a view to giving effect to the federal principle. In the matter of amendment of provisions specified in clauses (a) to (e) relating to legislative and executive powers of the States vis-a-vis the Union, the Judiciary, the election of the President and the amending power itself, which have a bearing on the States, the proviso imposes an additional requirement of ratification of the amendment which seeks to effect a change in those provisions before the Bill is presented for the assent of the President. It is salutary that the scope of the proviso is confined to the limits prescribed therein and is not construed so as to take away the power in the main part of Article 368 (2). An amendment which otherwise fulfills the requirements of Article 368(2) and is outside the specified cases which require ratification cannot be denied legitimacy on the ground alone of the company it keeps. The main part of Article 368(2) directs that when a Bill which has been passed by the requisite special majority by both the Houses has received the assent of the President “the Constitution shall stand amended in accordance with the terms of the Bill”. The proviso cannot have the effect of interdicting this constitutional declaration and mandate to mean that in a case where the proviso has not been complied-even the amendments which do not fall within the ambit of the proviso also become abortive. The words “the amendment shall also require to be ratified by the legislature” indicate that what is required to be ratified by the legislatures of the States is the amendment seeking to make the change in the provisions referred to in clauses (a) to (e) of the proviso.

The need for and the requirement of the ratification is confined to that particular amendment alone and not in respect of amendments outside the ambit of the proviso. The proviso can have, therefore, no bearing on the validity of the amendments which do not fall within its ambit. Indeed the following observations of this Court in Sajjan Singh case (supra) are apposite:

751 “In our opinion, the two parts of Art.368 must on a reasonable construction be harmonised with each other in the sense that the scope and effect of either of them should not be allowed to be unduly reduced or enlarged.” [P.940]

30. During the arguments reliance was placed on the words “before the Bill making provision for such amendment is presented to the President for assent” to sustain the argument that these words imply that the ratification of the Bill by not less than one-half of the States is a condition -precedent for the presentation of the Bill for the assent of the President. It is further argued that a Bill which seeks to make a change in the provisions referred to in clauses (a) to (e) of the proviso cannot be presented before the President for his assent without such ratification and if assent is given by the President in the absence of such ratification, the amending Act would be void and ineffective in its entirety.

A similar situation can arise in the context of the main part of Article 368(2) which provides: “when the bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting, it shall be presented to the president”. Here also a condition is imposed that the Bill shall be presented to the President for his assent only after it has been passed in each House by the prescribed special majority. An amendment in the First and Fourth Schedule referable to Article 4 can be introduced by Parliament by an ordinary law passed by simple majority. There may be a Bill which may contain amendments made in the First and Fourth Schedules as well as amendments in other provisions of the constitution excluding those referred to in the proviso which can be amended only by a special majority under Article 368(2) and the Bill after having been passed only by an ordinary majority instead of a special majority has received the assent of the President. The amendments which are made in the First and Fourth Schedules by the said amendment Act were validly made in view of Article 4 but the amendments in other provisions were in disregard to Article 368(2) which requires a special majority. Is not the doctrine of severability applicable to such an amendment so that amendments made in the First and Fourth Schedules may be upheld while declaring the amendments in the other provisions as ineffective? A contrary 752 view excluding the doctrine of severability would result in elevating a procedural limitation on the amending power to a level higher than the substantive limitations.

31. In Bribery Commissioner v. Pedrick Ranasinghe, [1964] UKPC 1; (1965 A.C. 172), the Judicial Committee has had to deal with a somewhat similar situation. This was a case from Ceylon under the Ceylon (Constitution) Order of 1946. Clause (4) of section 29 of the said Order in council contained the amending power in the following terms;

“(4)In the exercise of its powers under this section, Parliament may amend or repeal any of the provisions of this Order, or of any other Order of Her Majesty in council in its application to the Island:

Provided that no Bill for the amendment or repeal of any of the provisions of this Order shall be presented for the Royal Assent unless it has endorsed on it a certificate under the hand of the speaker that the number of votes cast in favour thereof in the House of Representatives amounted to not less than two-thirds of the whole number of members of the House (including those not present).

Every certificate of the Speaker under this sub- section shall be conclusive for all purposes and shall not be questioned in any court of law.” In that case, it was found that section 41 of the Bribery Amendment Act, 1958 made a provision for appointment of a panel by the Governor-General on the advice of the Minister of Justice for selecting members of the Bribery Tribunal while section 55 of the constitution vested the appointment, transfer, dismissal and disciplinary control of judicial officers in the Judicial Service Commission. It was held that the legislature had purported to pass a law which, being in conflict with section 55 of the Order in Council, must be treated, if it is to be valid, as an implied alteration of the Constitutional provisions about the appointment of judicial officers and could only be made by laws which comply with the special legislative procedure laid down in section 29(4). Since there was nothing to show that the Bribery Amendment Act, 1951 was passed by the necessary two-thirds majority, it was held that “any Bill which does not comply 753 with the condition precedent of the proviso, is and remains, even though it receives the Royal Assent, invalid and ultra vires”. Applying the doctrine of severability the Judicial Committee, however, struck down the offending provision, i.e. section 41 alone. In other words passing of the Bill by special majority was the condition precedent for presentation of the Bill for the assent. Disregard of such a condition precedent for presenting a Bill for assent did not result in the entire enactment being vitiated and the law being declared invalid in its entirety but it only had the effect of invalidation of a particular provision which offended against the limitation on the amending power. A comparison of the language used in clause (4) of section 29 with that of Article 368(2) would show that both the provisions bear a general similarity of purpose and both the provisions require the passing of the Bill by special majority before it was presented for assent. The same principle would, therefore, apply while considering the validity of a composite amendment which makes alterations in the First and Fourth Schedules as well as in other provisions of the Constitution requiring special majority under Article 368(2) and such a law, even though passed by the simple majority and not by special majority, may be upheld in respect of the amendments made in the First and Fourth Schedules. There is really no difference in principle between the condition requiring passing of the Bill by a special majority before its presentation to the President for assent contained in Article 368(2) and the condition for ratification of the amendment by the legislatures of not less than one-half of the States before the Bill is presented to the President for assent contained in the proviso. The principle of severability can be equally applied to a composite amendment which contains amendments in provisions which do not require ratification by States as well as amendment in provisions which require such ratification and by application of the doctrine of severability, the amendment can be upheld in respect of the amendments which do not require ratification and which are within the competence of Parliament alone. Only these amendments in provisions which require ratification under the proviso need to be struck down or declared invalid.

32. The test of severability requires the Court to ascertain whether the legislature would at all have enacted the law if the severed part was not the part of the law and whether after severance what survives can stand independently and is workable. If the provisions of the Tenth Schedule are considered in the background of the legislative history, namely, the report of the `Committee on Defections’ as well as the earlier Bills which were 754 moved to curb the evil of defection it would be evident that the main purpose underlying the constitutional amendment and introduction of the Tenth Schedule is to curb the evil of defection which was causing immense mischief in our body- politic. The ouster of jurisdiction of Courts under Paragraph 7 was incidental to and to lend strength to the main purpose which was to curb the evil of defection. It cannot be said that the constituent body would not have enacted the other provisions in the Tenth Schedule if it has known that Paragraph 7 was not valid. Nor can it be said that the rest of the provisions of the Tenth Schedule cannot stand on their own even if Paragraph 7 is found to be unconstitutional. The provisions of Paragraph 7 can, therefore, be held to be severable from the rest of the provisions.

We accordingly hold on contentions `C’ and `D’:

“That there is nothing in the said proviso to Article 368 (2) which detracts from the severability of a provision on account of the inclusion of which the Bill containing the Amendment requires ratification from the rest of the provisions of such Bill which do not attract and require such ratification. Having regard to the mandatory language of Article 368(2) that ” thereupon the Constitution shall stand amended” the operation of the proviso should not be extended to constitutional amendments in Bill which can stand by themselves without such ratification.

That, accordingly, the Constitution (52nd Amendment) Act, 1985, in so far as it seeks to introduce the Tenth Schedule in the Constitution of India, to the extent of its provisions which are amenable to the legal-sovereign of the amending process of the Union Parliament cannot be overborne by the proviso which cannot operate in that area.

There is no justification for the view that even the rest of the provisions of the constitution (52nd Amendment) Act, 1985, excluding Paragraph 7 of the Tenth Schedule become constitutionally infirm by reason alone of the fact that one of its severable provisions which attracted and required ratification under the proviso to Article 368(2) was not so ratified.

That Paragraph 7 of the Tenth Schedule contains a provision 755 which is independent of, and stands apart from the main provisions of the Tenth Schedule which are intended to provide a remedy for the evil of unprincipled and unethical political defections and, therefore, is a severable part. The remaining provisions of the Tenth Schedule can and do stand independently of Paragraph 7 and are complete in themselves workable and are not truncated by the excision of Paragraph 7.” 33. Re: Contentions `E’ and `F’:

These two contentions have certain over-lapping areas between them and admit of being dealt with together.

Paragraph 6(1) of the Tenth Schedule seeks to impart a statutory finality to the decision of the Speaker or the Chairman. The argument is that, this concept of `finality’ by itself, excludes Courts’ jurisdiction. Does the word “final” render the decision of the Speaker immune from Judicial Review? It is now well-accepted that a finality clause is not a legislative magical incantation which has that effect of telling of Judicial Review. Statutory finality of a decision presupposes and is subject to its consonance with the statute. On the meaning and effect of such finality clause, Prof. Wade in `Administrative Law’ 6th Edn, at page 720 says:

“Many statues provide that some decision shall be final. That provision is a bar to any appeal. But the courts refuse to allow it to hamper the operation of judicial review. As will be seen in this and the following section, there is a firm judicial policy against allowing the rule of law to be undermined by weakening the powers of the court.

Statutory restrictions on judicial remedies are given the narrowest possible construction, sometimes even against the plain meaning of the words. This is a sound policy, since otherwise administrative authorities and tribunals would be given uncontrollable power and could violate the law at will. `Finality’ is a good thing but justice is a better.” “If a statute says that the decision `shall be final’ or `shall be final and conclusive to all intents and purposes’ this is held to mean merely that there is no appeal: judicial control of legality is unimpaired. “Parliament only gives the impress of finality to 756 the decisions of the tribunal on condition that they are reached in accordance with the law. This has been the consistent doctrine for three hundred years.” Learned Professor further says:

“The normal effect of a finality clause is therefore to prevent any appeal. There is no right of appeal in any case unless it is given by statute. But where there is general provision for appeals, for example, from quarter session to the High Court by case stated, a subsequent Act making the decision of quarter session final on some specific matter will prevent an appeal. But in one case the Court of Appeal has deprived a finality clause of part even of this modest content, holding that a question which can be resolved by certiorari or declaration can equally well be the subject of a case stated, since this is only a matter of machinery. This does not open the door to appeals generally, but only to appeals by case stated on matters which could equally well be dealt with by certiorari or declaration, i.e., matter subject to judicial review.

“A provision for finality may be important in other contexts, for example when the question is whether the finding of one tribunal may be reopened before another, or whether an interlocutory order is open to appeal……”.

[Page 721] Lord Devlin had said “Judicial interference with the executive cannot for long greatly exceed what Whitehall will accept” and said that a decision may be made un- reviewable “And that puts the lid on”. Commenting on this Prof. Wade says: “But the Anisminic case showed just the opposite, when the House of Lord removed the lid and threw it away.” [See: Constitutional Fundamentals, the Hamlyn Lectures, 1989 Edn. p.88] In Durga Shankar Mehta v. Raghuraj Singh, [1954] INSC 68; AIR 1954 SC 520 the order of the Election Tribunal was made final and conclusive by s. 105 of the Representation of the People Act, 1951. The contention was that the finality and conclusiveness clauses barred the jurisdiction of the Supreme Court under Article 136. This contention was repelled. It was observed:

“…..but once it is held that it is a judicial tribunal empowered 757 and obliged to deal judicially with disputes arising out of or in connection with election, the overriding power of this Court to grant special leave, in proper cases, would certainly be attracted and this power cannot be excluded by any parliamentary legislation.

…… But once that Tribunal has made any determination or adjudication on the matter, the powers of this Court to interfere by way of special leave can always be exercised.

…… The powers given by Article 136 of the Constitution, however, are in the nature of special or residuary powers which are exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by the Supreme Court of the land ……

Section 105 of the Representation of the People Act certainly give finality to the decision of the Election Tribunal so far as that Act is concerned and does not provide for any further appeal but that cannot in any way cut down or effect the overriding powers which this court can exercise in the matter of granting special leave under Art. 136 of the Constitution.” [p.522]

34. Again, in Union of India v. Jyoti Prakash Mitter, [1971] INSC 18; [1971] 3 SCR 483 a similar finality clause in Articles 217(3) of the Constitution camp up for consideration. This Court said:

“….The President acting under Article 217(3) performs a judicial function of grave importance under the scheme of our Constitution. He cannot act on the advice of his Ministers.

Notwithstanding the declared finality of the order of the president the Court has jurisdiction in appropriate cases to set aside the order, if it appears that it was passed on collateral considerations or the rules of natural justice were not observed, or that the President’s judgment was coloured by the advice or representation made by the executive or it was founded on no evidence….” (p-505).

758 Referring to the expression “final”occurring in Article 311(3) of the Constitution this Court in Union of India & Anr. v. Tulsiram Patel & Ors.

[1985] Supp. 2 SCR 131 at page 274 held:

“……The finality given by clause (3) of Article 311 to the disciplinary authority’s decision that it was not reasonably practicable to hold the inquiry is not binding upon the court. The court will also examine the charge of mala fides, if any, made in the writ petition. In examining the relevance of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry.

If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b)…..”

35. If the intendment is to exclude the jurisdiction of the superior Courts, the language would quite obviously have been different. Even so, where such exclusion is sought to be effected by an amendment the further question whether such an amendment would be destructive of a basic feature of the Constitution would arise. But comparison of the language in Article 363(1) would bring out in contrast the kind of language that may be necessary to achieve any such purpose.

In Brundaban Nayak v. Election Commission of India & Anr., [1965] INSC 34; [1965] 3 SCR 53, in spite of finality attached by Article 192 to the decision of the Governor in respect of disqualification incurred by a member of a State Legislature subsequent to the election, the matter was examined by this Court on an appeal by special leave under Article 136 of the Constitution against the decision of the High Court dismissing the writ petition filed under Article 226 of the Constitution. Similarly in Union of India v. Jyoti Prakash Mitter, [1971]3 SCR 483, in spite of finality attached to the order of the President with regard to the determination of age of a Judge of the High Court under Article 217 (3) of the Constitution, this Court examined the legality of the order passed by the President during the pendency of an appeal filed under Article 136 of the Constitution.

There is authority against the acceptability of the argument that the word “final” occurring in Paragraph 6(1) has the effect of excluding the 759 jurisdiction of the Courts in Articles 136, 226 and 227.

36. The cognate questions are whether a dispute of the kind envisaged by Paragraph 6 of the Tenth Schedule is in a non-justiciable area and that, at all events, the fiction in Paragraph 6(2) that all proceedings under Paragraph 6(1) of the Tenth Schedule be deemed to be “proceedings in Parliament” of “Proceedings in the Legislature of a State” attracts immunity from the scrutiny by Courts as under Article 122 or 212, as the case may be.

Implicit in the first of these postulates is the premise that questions of disqualification of members of the House are essentially matters pertaining to the Constitution of the House and, therefore, the Legislature is entitled to exert its exclusive power to the exclusion of the judicial power. This assumption is based on certain British legislature practices of the past in an area which is an impalpable congeries of legal rules and conventions peculiar to and characteristic of British Parliamentary traditions.

Indeed, the idea appears to have started with the proposition that the Constitution of the House was itself a matter of privilege of the House. Halsbury contains this statement:

“1493, Privilege of the House of Commons in relation to its constitution: In addition to possessing a complete control over the regulation of its own proceedings and the conduct of its members, the House of Commons claims the exclusive right of providing, as it may deem fit, for its own proper constitution.” (emphasis supplied) (See: Halsbury’s Laws of England, 4th Edn. Vol. 34 Pages 603 & 604) But in the Indian constitutional dispensation the power to decide a disputed disqualification of an elected member of the House is not treated as a matter of privilege and the power to resolve such electoral disputes is clearly judicial and not legislative in nature. The fact that election disputes were at some stage decided by the House of Commons itself was not conclusive that even their power was legislative. The controversy, if any, in this area is put at rest by the authoritative earlier pronouncements of this Court.

37.In Indira Nehru Gandhi v. Raj Narain, [1976] 2 SCR 347 Beg J., referring to the historical background relating to the resolution of electoral disputes by the House of Common said:

“I do not think that it is possible to contend, by resorting to some concept of a succession to the powers of the medieval “High Court of Parliament” in England, that a judicial power also devolved upon our Parliament through the constituent Assembly, mentioned in Sec. 8 of the Indian Independence Act of 1947. As already indicated by me, the Constituent assembly was invested with law making and not judicial powers. Whatever judicial power may have been possessed once by English kings sitting in Parliament, constituting the highest Court of the realm in medieval England, have devolved solely on the House of Lords as the final court of appeal in England. “King in Parliament” had ceased to exercise judicial powers in any other way long before 1950. And, the House of Commons had certainly not exercised a judicial power as a successor to the one time jurisdiction of the “King in Parliament” with the possible exception of the power to punish for its contempts….” [p.627 & 628] In the same case, Justice Mathew made these observations as to the imperative judicial nature of the power to resolve disputes.

“The concept of democracy as visualised by the Constitution presupposes the representation of the people in Parliament and State Legislatures by the method of election. And, before an election machinery can be brought into operation, there are three requisites which require to be attended to , namely, (1) there should be a set of laws and rules making provisions with respect to all matters relating to, or in connection with, elections, and it should be decided as to how these laws and rules are to be made; (2) there should be an executive charged with the duty of securing the due conduct of elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in connection with elections……” [p.504] “In whichever body or authority, the jurisdiction is vested, the 761 exercise of the jurisdiction must be judicial in character. This court has held that in adjudicating an election dispute an authority is performing a judicial function and a petition for leave to appeal under Article 136 of the Constitution would lie to this Court against the decision nothwithstanding the provisions of Article 329(b).” (emphasis supplied) [p.506] It is also useful to recall the following observations of Gajendragadkar J., on the scope of Article 194(3) of the Constitution, which is analogous to Article 105(3) in Special Reference No.1 of 1964 [1964] INSC 209; [1965] 1 SCR 413:

“This clause requires that the powers, privileges and immunities which are claimed by the House must be shown to have subsisted at the commencement of the Constitution, i.e., on January 26, 1950. it is well-known that out of a large number of privileges and powers which the House of commons claimed during the days of its bitter struggle for recognition, some were given up in course of time, and some virtually faded out by desuetude; and so, in every case where a power is claimed, it is necessary to enquire whether it was an existing power at the relevant time. It must also appear that the said power was not only claimed by the House of Commons, but was recognised by the English Courts. It would obviously be idle to contend that if a particular power which is claimed by the House was claimed by the House of Commons but was not recognised by the English Courts, it would still be upheld under the latter part of clause (3) only on the ground that it was in fact claimed by the House of Commons. In other words, the inquiry which is prescribed by this clause is: is the power in question shown or proved to have subsisted in the House of Commons at the relevant time?” (See page 442) This question is answered by Beg, J. in Indira Nehru Gandhi’s case:

“I think, at the time our Constitution was framed, the decision 762 of an election dispute had ceased to be a privilege of the House of Commons in England and therefore, under Article 105(3), it could not be a privilege of Parliament in this country.” [p.505] 38.Indeed, in dealing with the disqualifications and the resolution of disputes relating to them under Articles 191 and 192 or Article 102 and 103, as the case may be, the Constitution has evinced a clear intention to resolve electoral-disputes by resort to the judicial power of the State. Indeed, Justice Khanna in Indira Nehru Gandhi’s case said:

“Not much argument is needed to show that unless there be a machinery for resolving an election dispute and for going into the allegations that elections were not free and fair being vitiated by malpractices, the provision that a candidate should not resort to malpractices would be in the nature of a mere pious wish without any legal sanction.

It is further plain that if the validity of the election declared to be valid only if we provide a forum for going into those grounds and prescribe a law for adjudicating upon those grounds…..” (See page 468) It is, therefore, inappropriate to claim that the determinative jurisdiction of the Speaker or the Chairman in the Tenth Schedule is not a judicial power and is within the non-justiciable legislative area. The classic exposition of Justice Issacs J., in Australian Boot Trade Employees Federation v. Whybrow & Co., [1910] 10 CLR 226 at page 317, as to what distinguishes a judicial power from a legislative power was referred to with the approval of this Court in Express Newspaper Ltd. v. Union of India, AIR 1958 SC 578 at 611. Issacs J., stated:

“If the dispute is as to the relative rights of parties as they rest on past or present circumstances, the award is in the nature of a judgment, which might have been the decree of an ordinary judicial tribunal acting under the ordinary judicial power. There the law applicable to the case must be observed. If, however, the dispute is as to what shall in the future be the mutual rights and responsibilities of the parties- in other words, if no present rights are asserted or denied, but a future rule of conduct is to be prescribed, thus creating new rights and obligations, with 763 sanctions for non-conformity then the determination that so prescribes, call it an award, or arbitration, determination, or decision or what you will, is essentially of a legislative character, and limited only by the law which authorises it.

If, again, there are neither present rights asserted, nor a future rule of conduct prescribed, but merely a fact ascertained necessary for the practical effectuation of admitted rights, the proceeding, though called an arbitration, is rather in the nature of an appraisement or ministerial act.” In the present case, the power to decide disputed disqualification under Paragraph 6(1) is preeminently of a judicial complexion.

39. The fiction in Paragraph 6(2), indeed, places it in the first clause of Article 122 or 212, as the case may be.

The words “proceedings in Parliament” or “proceedings in the legislature of a State” in Paragraph 6(2) have their corresponding expression in Articles 122(1) and 212(1) respectively. This attracts an immunity from mere irregularities of procedures.

That apart, even after 1986 when the Tenth Schedule was introduced, the Constitution did not evince any intention to invoke Article 122 or 212 in the conduct of resolution of disputes as to the disqualification of members under Articles 191(1) and 102(1). The very deeming provision implies that the proceedings of disqualification are, in fact, not before the House; but only before the Speaker as a specially designated authority. The decision under paragraph 6(1) is not the decision of the House, nor is it subject to the approval by the House. The decision operates independently of the House. A deeming provision cannot by its creation transcend its own judicial scrutiny of the decision of the Speaker or Chairman exercising power under Paragraph 6(1) of the Tenth Schedule.

40. But then is the Speaker or the Chairman acting under Paragraph 6(1) is a Tribunal? “All tribunals are not courts, though all Courts are Tribunals”. The word “Courts” is used to designate those Tribunals which are set up in an organised State for the Administration of Justice. By Administration of justice is meant the exercise of judicial power of the State to maintain and uphold rights and to punish “wrongs”. Whenever there is an infringement of a right or an injury, the Courts are there to restore the vinculum juris, which is disturbed. See: Harinagar Sugar Mills 764 Ltd. v. Shyam Sunder Jhunjhunwala & Ors., [1961] INSC 185; [1962] 2 SCR 339.

In that case Hidayatullah, J. said:

“….By “courts” is meant courts of civil judicature and by “tribunals”, those bodies of men who are appointed to decide controversies arising under certain special laws. Among the powers of the State is included the power to decide such controversies. This is undoubtedly one of the attributes of the State and is aptly called the judicial power of the State. In the exercise of this power, a clear division is thus noticeable.

Broadly speaking, certain special matters go before tribunals, and the residue goes before the ordinary courts of civil judicature. Their procedures may differ, but the functions are not essentially different. What distinguishes them has never been successfully established. Lord Stamp said that the real distinction is that the courts have “an air of detachment”. But this is more a matter of age and tradition and is not of the essence. Many tribunals, in recent years, have acquitted themselves so well and with such detachment as to make this test insufficient.” [p.362] Where there is a lis-an affirmation by one party and denial by another-and the dispute necessarily involves a decision on the rights and obligations of the parties to it and the authority is called upon to decide it, there is a exercise of judicial power. That authority is called a Tribunal, if it does not have all the trappings of a Court.

In Associated Cement Companies Ltd. v. P.N. Sharma and Anr., [1965]2 SCR 366, this Court said:

“….. The main and the basic test, however, is whether the adjudicating power which a particular authority is empowered to exercise, has been conferred on it by a statute and can be described as a part of the State’s inherent power exercised in discharging its judicial function. Applying this test, there can be no doubt that the power which the State Government exercises under R.6(5) and R.6(6) is a part of the State’s judicial power…..There is, in that sense, a lis; there is affirmation by one party and denial by another, and the dispute necessarily involves the rights and obligations of the parties to it. The order which the State Government ultimately passes is 765 described as its decision and it is made final and binding…..” [p.386 and 387] By these well-known and accepted tests of what constitute a Tribunal, the Speaker or the Chairman, acting under paragraph 6(1) of the Tenth Schedule is a Tribunal.

41. In the operative conclusions we pronounced on 12th November, 1991 we indicated in clauses G and H therein that Judicial review in the area is limited in the manner indicated. If the adjudicatory authority is a tribunal, as indeed we have held it to be, why, then, should its scope be so limited? The finality clause in paragraph 6 does not completely exclude the jurisdiction of the courts under Articles 136, 226 and 227 of the Constitution. But it does have the effect of limiting the scope of the jurisdiction.

The principle that is applied by the courts is that in spite of a finality clause it is open to the court to examine whether the action of the authority under challenge is ultra vires the powers conferred on the said authority. Such an action can be ultra vires for the reason that it is in contravention of a mandatory provision of the law conferring on the authority the power to take such an action. It will also be ultra vires the powers conferred on the authority if it is vitiated by mala fides or is colourable exercise of power based on extraneous and irrelevant considerations.

While exercising their certiorari jurisdiction, the courts have applied the test whether the impugned action falls within the jurisdiction of the authority taking the action or it falls outside such jurisdiction. An ouster clause confines judicial review in respect of actions falling outside the jurisdiction of the authority taking such action but precludes challenge to such action on the ground of an error committed in the exercise of jurisdiction vested in the authority because such an action cannot be said to be an action without jurisdiction. An ouster clause attaching finality to a determination, therefore, does oust certiorari to some extent and it will be effective in ousting the power of the court to review the decision of an inferior tribunal by certiorari if the inferior tribunal has not acted without jurisdiction and has merely made an error of law which does not affect its jurisdiction and if its decision is not a nullity for some reason such as breach of rule of natural justice. See : Administrative Law by H.W.R.

Wade, 6th Edn., pp. 724-726; Anisminic Ltd. v. Foreign Compensation commission[1968] UKHL 6; , [1969] 2 AC 147; S.E. Asia Fire Bricks v. Non-Metallic Products, [1981] A.C. 363.

766 In Makhan Singh v. State of Punjab, [1964] 4 SCR 797, while considering the scope of judicial review during the operation of an order passed by the President under Article 359(1) suspending the fundamental right guaranteed under Article 21 of the Constitution, it has been held that the said order did not preclude the High Court entertaining a petition under Article 226 of the Constitution where a detenu had been detained in violation of the mandatory provisions of the detention law or where the detention has been ordered mala fide. It was emphasised that the exercise of a power mala fide was wholly outside the scope of the Act conferring the power and can always be successfully challenged. (p. 825) Similarly in State of Rajasthan v. Union of India, [1977] INSC 145; [1978] 1 SCR 1, decided by a seven judge Bench, high Court was considering the challenge to the validity of a proclamation issued by the President of India under Article 356 of the constitution. At the relevant time under clause (5) of Article 356, the satisfaction of the President mentioned in clause (1) was final and conclusive and it could not be questioned in any court on any ground. All the learned judges have expressed the view that the proclamation could be open to challenge if it is vitiated by mala fides.

While taking this view, some of the learned judges have made express reference to the provisions of clause(5).

In this context, Bhagwati, J (as the learned Chief Justice then was) speaking for himself and A.C. Gupta, J.

has stated:

“Of course by reason of cl. (5) of Art. 356, the satisfaction of the President is final and conclusive and cannot be assailed on any ground but this immunity from attack cannot apply where the challenge is not that the satisfaction is improper or unjustified, but that there is no satisfaction at all. In such a case it is not the satisfaction arrived at by the President which is challenged, but the existence of the satisfaction itself. Take, for example, a case where the President gives the reason for taking action under Art. 356, cl. (1) and says that he is doing so, because the Chief Minister of the State is below five feet in height and, therefore, in his opinion a situation has arisen where the Government of the State cannot be carried on in accordance with the provisions of the Constitution. Can the so called satisfaction of the President in such a case not be challenged 767 on the ground that it is absurd or perverse or mala fide or based on a wholly extraneous and irrelevant ground and is, therefore, no satisfaction at all.”(pp. 82-83) Untwalia, J. has held as follows:

“I, however, must hasten to add that I cannot persuade myself to subscribe to the view that under no circumstances an order of proclamation made by the President under Article 356 can be challenged in a Court of Law. And, I am saying so notwithstanding the provision contained in clause (5) of the said Article introduced by the Constitution(38th Amendment) Act, 1975.”(p. 94) “But then, what did I mean by saying that situation may arise in a given case where the jurisdiction of the Court is not completely ousted? I mean this.

If, without entering into the prohibited area, remaining on the fence, almost on the face of the impugned order or the threatened action of the President it is reasonably possible to say that in the eye of law it is no order or action as it is in flagrant violation of the very words of a particular Article, justifying the conclusion that the order is ultra vires, wholly illegal or passed mala fide, in such a situation it will be tantamount in law to be no order at all. Then this Court is not powerless to interfere with such an order and may, rather, must strike it down.”(p. 95) Similarly, Fazal Ali, J. has held :

“Even if an issue is not justiciable, if the circumstances relied upon by the executive authority are absolutely extraneous and irrelevant, the Courts have the undoubted power to scrutinise such an e exercise of the executive power. Such a judicial scrutiny is one which comes into operation when the exercise of the executive power is colourable or mala fide and based on extraneous or irrelevant considerations.” (p. 116) “It is true that while an order passed by the President under Article 356 is put beyond judicial scrutiny by cl. (5) of Art.356, but this does not mean that the Court possesses no jurisdiction 768 in the matter at all. Even in respect of cl. (5) of Art. 356, the Courts have a limited sphere of operation in that on the reasons given by the President in his order if the Courts find that they are absolutely extraneous and irrelevant and based on personal and illegal consideration the Courts are not powerless to strike down the order on the ground of mala fide if proved.” (p.120) In Union of India v. Jyoti Prakash Mitter (supra), dealing with the decision of the President under Article 217 (3) on the question as to the age of a judge of the High Court, requiring a judicial approach it was held that the field of judicial review was enlarged to cover violation of rules of natural justice as well as an order based on no evidence because such errors are errors of jurisdiction.

c In Union of India & Anr. v. Tulsiram Patel & Ors.

(supra) this Court was dealing with Article 311 (3) of the constitution which attaches finality to the order of the disciplinary authority on the question whether it was reasonably practicable to hold an inquiry. It was observed that though the `finality’ clause did not bar jurisdiction it did indicate that the jurisdiction is limited to certain grades.

In the light of the decisions referred to above and the nature of function that is exercised by the Speaker/Chairman under paragraph 6, the scope of judicial review under Articles 136, 226 and 227 of the Constitution in respect of an order passed by the Speaker/Chairman under paragraph 6 would be confined to jurisdictional errors only viz., infirmities based on violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

In view of the limited scope of judicial review that is available on account of the finality clause in paragraph 6 and also having regard to the constitutional intendment and the status of the repository of the adjudicatory power i.e.

Speaker/Chairman, judicial review cannot be available at a stage prior to the making of a decision by the Speaker/Chairman and a quia timet action would not be permissible. Nor would interference be permissible at an interlocutory stage of the proceedings. Exception will, however, have to be made in respect of cases where disqualification or suspension is imposed during the pendency of the proceedings and such disqualification or suspension is likely to have grave, immediate and irreversible repercussions and consequence.

769 42. In the result, we hold on contentions E and F :

That the Tenth Schedule does not, in providing for an additional grant for disqualification and for adjudication of disputed disqualifications, seek to create a nonjusticiable constitutional area. The power to resolve such disputes vested in the Speaker or chairman is a judicial power.

That Paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality embodied in Paragraph 6(1) does not detract from or abrogate judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities based on violations of constitutional mandates, mala fides, non-compliance with Rules of Natural Justice and perversity, are concerned.

That the deeming provision in Paragraph 6(2) of the Tenth Schedule attracts an immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as understood and explained in Keshav Singh’s Case Spl.Ref. No. 1[1964] INSC 209; , [1965] 1 SCR 413, to protect the validity of proceedings from mere irregularities of procedure. The deeming provision, having regard to the words “be deemed to be proceedings in Parliament” or “proceedings in the Legislature of a State” confines the scope of the fiction accordingly.

The Speaker/Chairmen while exercising powers and discharging functions under the Tenth Schedule act as Tribunal adjudicating rights and obligations under the Tenth Schedule and their decisions in that capacity are amenable to judicial review.

However, having regard to the Constitutional Schedule in the Tenth Schedule, judicial review should not cover any stage prior to the making of a decision by the Speakers/Chairman. Having regard to the constitutional intendment and the status of the repository of the adjudicatory power, no quia timet actions are permissible, the only exception for any interlocutory interference being cases of interlocutory disqualifications or suspensions which may have grave, immediate and irreversible 770 repurcussions and consequence.

43. Re : Contention(G):

The argument is that an independant adjudicatory machinery for resolution of electrol disputes is an essential incident of democracy, which is a basic feature of Indian consitutionalism. It is urged that investiture of the power of resolving such disputes in the Speaker or the Chairman does not answer this test of an independent, impartial quality of the adjudicatory machinery. It is, therefore, urged that Paragraph 6(1) of the Tenth Schedule is violative of a basic feature.

It is also urged that a Speaker, under the Indian Parliamentary tradition is not required to resign his membership of the political party on whose strength he gets elected and that inevitably the decision of the Speaker is not free tugs and pulls of political polarisations. It is urged that the Speaker who has not resigned his membership of the political party cannot be impartial and, at all events, his functioning will not be free from reasonable likelihood of bias.

44. The Tenth Schedule breaks away from the constitutional pattern for resolution of disqualifications envisaged in Articles 103 and 192 of the Constitution which vest jurisdiction in this behalf in the President or the Governor acting according to the opinion of Election Commission. The disqualifications for defection could very well have been included in Article 102(1) or 191(1) as a ground, additional to the already existing grounds under clauses (a) to (e) in which event, the same dispute resolution machinery would have dealt with the disqualifications for defections also. But the Tenth Schedule, apparently. attempted a different experiment in respect of this particular ground of disqualification.

45.The question is, whether the investiture of the determinative jurisdiction in the Speaker would by itself stand vitiated as denying the idea of an independent adjudicatory authority. We are afraid the criticism that the provision incurs the vice of unconstitutionality ignores the high status and importance of the office of the Speaker in a Parliamentary democracy. The office of the speaker is held in the highest respect and esteem in Parliamentary traditions. The evolution of the institution of Parliamentary democracy has as its pivot the institution of the Speaker. `The Speaker holds a high, important and ceremonial office. All questions of the well being of the House 771 are matters of Speaker’s concern’. The Speaker is said to be the very embodiment of propriety and impartiality. He performs wide ranging functions including the performance of important functions of a judicial character.

Mavalankar, who was himself a distinguished occupant of that high office, says :

“In parliamentary democracy, the office of the Speaker is held in very high esteem and respect.

There are many reasons for this. Some of them are purely historical and some are inherent in the concept of parliamentary democracy and the powers and duties of the Speaker. Once a person is elected Speaker, he is expected to be above parties, above politics. In other words, he belongs to all the members or belongs to none. He holds the scales of justice evenly irrespective of party or person, though no one expects that he will do absolute justice in all matters; because, as a human being he has his human drawbacks and shortcomings. However, everybody knows that he will intentionally do no injustice or show partiality. “Such a person is naturally held in respect by all.” [See : G. V. Mavalankar : The Office of Speaker, Journal of Parliamentary Information, April 1956, Vol. 2, No. 1, p.33] Pundit Nehru referring to the office of the Speaker said :

“….The speaker represents the House. He represents the dignity of the House, the freedom of the House and because the House represents the nation, in a particular way, the Speaker becomes the symbol of the nation’s freedom and liberty.

Therefore, it is right that that should be an honoured position, a free position and should be occupied always by men of outstanding ability and impartiality.

[See : HOP. Deb. Vol.IX (1954), CC 3447-48] Referring to the Speaker, Erskine may says :

“The Chief characteristics attaching to the office of Speaker in the House of Commons are authority and impartiality. As a symbol of his authority he is accompanied by the Royal Mace 772 which is borne before him when entering and leaving the chamber and upon state occasions by the Sergeant at Arms attending the House of commons, and is placed upon the table when he is in the chair. In debate all speeches are addressed to him and he calls upon Members to speak – a choice which is not open to dispute. When he rises to preserve order or to give a ruling on a doubtful point he must always be heard in silence and no Member may stand when the Speaker is on his feet. Reflections upon the character or actions of the Speaker may be punished as breaches of privilege. His action cannot be criticized incidentally in debate or upon any form of proceeding except a substantive motion. His authority in the chair is fortified by many special powers which are referred to below.

Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised…..” [See : Erskine May – Parliamentary Practice – 20th edition p. 234 and 235] M.N. Kaul and S.L. Shakdher in `Practice and procedure of Parliament’ 4th Edition, say :

“The all important conventional and ceremonial head of Lok Sabha is the Speaker. Within the walls of the House his authority is supreme. This authority is based on the Speaker’s absolute and unvarying impartiality – the main feature of the office, the law of its life. The obligation of impartiality appears in the constitutional provision which ordains that the Speaker is entitled to vote only in the case of equality of votes. Moreover, his impartiality within the House is secured by the fact that he remains above all considerations of party or political career, and to that effect he may also resign from the party to which he belonged.” [p. 104]

46. It would, indeed, be unfair to the high traditions of that great 773 office to say that the investiture, in it of this Jurisdiction would be vitiated for violation of a basic feature of democracy. It is inappropriate to express distrust in the High office of the Speaker, merely because some of the Speakers are alleged, or even found, to have discharged their functions not in keeping with the great traditions of that high office. The Robes of the Speaker to change and elevate the man inside.

47. Accordingly, the contention that the vesting of adjudicatory functions in the Speakers/Chairmen would by itself vitiate the provision on the ground of likelihood of political bias is unsound and is rejected. The Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary democracy and are guardians of the rights and privileges of the House. They are expected to and to take far reaching decisions in the functioning of Parliamentary democracy. Vestiture of power of adjudicate questions under the Tenth Schedule in such a constitutional functionaries should not be considered exceptionable.

48.Re : Contention H :

In the view we take of the validity of paragraph 7 it is unnecessary to pronounce on the contention whether judicial review is a basic feature of the Constitution and paragraph 7 of the Tenth Schedule violates such basic structure.

49. We may now notice one other contention as to the construction of the expression `any direction’ occurring in paragraph 2(1)(b). It is argued that if the expression really attracts within its sweep every direction or whip of any kind whatsoever it might be unduly restrictive of the freedom of speech and the right of dissent and that, therefore, should be given a meaning limited to the objects and purposes of the Tenth Schedule. Learned counsel relied upon and commended to us the view taken by the minority in the Full Bench decision of Punjab and Haryana High Court in Parkash Singh Badal & Ors. v. Union of India & Ors., [AIR 1987 Punjab and Haryana 263] where such a restricted sense was approved. Tewatia J. said :

“If the expression : “any direction” is to be literally construed then it would make the people’s representative a wholly political party’s representative, which decidedly he is not. The Member would virtually lose his identity and would become a rubber 774 stamp in the hands of his political party. Such interpretation of this provision would cost it, its constitutionality, for in that sense it would become destructive of democracy/parliamentary democracy, which is the basic feature of the Constitution. Where giving of narrow meaning and reading down of the provision can save it from the vice of unconstitutionality the Court should read it down particularly when it brings the provision in line with the avowed legislative intent…….” “……….the purpose of enacting paragraph 2 could be no other than to insure stability of the democratic system, which in the context of Cabinet/Parliamentary form of Government on the one hand means that a political party or a coalition of political parties which has been voted to power, is entitled to govern till the next election, and on the other, that opposition has a right to censure the functioning of the Government and even overthrow it by voting it out of power if it had lost the confidence of the people, then voting or abstaining from voting by a Member contrary to any direction issued by his party would by necessary implication envisage voting or abstaining from voting in regard to a motion or proposal, which if failed, as a result of lack or requisite support in the House, would result in voting the Government out of power, which consequence necessarily follows due to well established constitutional convention only when either a motion of no confidence is passed by the House or it approves a cut-motion in budgetary grants. Former because of the implications of Article 75(3) of the Constitution and latter because no Government can function without money and when Parliament declines to sanction money, then it amounts to an expression of lack of confidence in the Government. When so interpreted the clause (b) of sub-paragraph (1) of paragraph 2 would leave the Members free to vote according to their views in the House in regard to any other matter that comes up before it.” [p.313 & 314] The reasoning of the learned judge that a wider meaning of the words “any direction” would `cost it its constitutionality’ does not commend to us.

775 But we approve the conclusion that these words require to be construed harmoniously with the other provisions and appropriately confined to the objects and purposes of the Tenth Schedule. Those objects and purposes define and limit the contours of its meaning. The assignment of a limited meaning is not to read it down to promote its constitutionality but because such a construction is a harmonious construction in the context. There is no justification to give the words the wider meaning.

While construing Paragraph 2(1)(b) it cannot be ignored that under the Constitution members of Parliament as well as of the State legislature enjoy freedom of speech in the House though this freedom is subject to the provisions of the constitution and the rules and standing orders regulating the Procedure of the House [Art, 105(1) and art.194(1)]. The disqualification imposed by Paragraph 2(1) (b) must be so construed as not to unduly impinge on the said freedom of speech of a member. This would be possible if Paragraph 2(1)(b) is confined in its scope by keeping in view the object underlying the amendments contained in the Tenth Schedule, namely, to curb the evil or mischief of political defections motivated by the lure of office or other similar considerations. The said object would be achieved if the disqualification incurred on the ground of voting or abstaining from voting by a member is confined to cases where a change of Government is likely to be brought about or is prevented, as the case may be, as a result of such voting or abstinence or when such voting or abstinence is on a matter which was a major policy and programme on which the political party to which the member belongs went to the polls. For this purpose the direction given by the political party to a member belonging to it, the violation of which may entail disqualification under paragraph 2(1)(b), would have to be limited to a vote on motion of confidence or no confidence in the Government or where the motion under consideration relates to a matter which was an integral policy and programme of the political party on the basis of which it approached the elaborate. The voting or abstinence from voting by a member against the direction by the political party on such a motion would amount to disapproval of the programme of the basis of which he went before the electorate and got himself elected and such voting or abstinence would amount to a breach of the trust reposed in him by the electorate.

Keeping in view the consequences of the disqualification i.e., termination of the membership of a House; it would be appropriate that the 776 direction or whip which results in such disqualification under Paragraph 2(1)(b) is so worded as to clearly indicate that voting or abstaining from voting contrary to the said direction would result in incurring the disqualification under Paragraph 2(1)(b) of the Tenth Schedule so that the member concerned has fore-knowledge of the consequences flowing from his conduct in voting or abstaining from voting contrary to such a direction.

50. There are some submissions as to the exact import of a “split – whether it is to be understood an instantaneous, one time event or whether a “split” can be said to occur over a period of time. The hypothetical poser was that if one-third of the members of a political party in the legislature broke-away from it on a particular day and a few more members joined the spliter group a couple of days later, would the latter also be a part of the “split” group.

This question of construction cannot be in vaccuo. In the present cases, we have dealt principally with constitutional issues. The meaning to be given to “split” must necessarily be examined in a case in which the question arises in the context of its particular facts. No hypothetical predications can or need be made. We, accordingly,, leave this question open to be decided in an appropriate case.

51. Before parting with the case, we should advert to one other circumstance. During the interlocutory stage, the constitution bench was persuaded to make certain interlocutory orders which, addressed as they were to the Speaker of the House, (though, in a different capacity as an adjudicatory forum under the Tenth Schedule) engendered complaints of disobedience culminating in the filing of petitions for initiation of proceedings of contempt against the Speaker. It was submitted that when the very question of jurisdiction of the Court to deal with the matter was raised and even before the constitutionality of Paragraph 7 had been pronounced upon, self restraint required that no interlocutory orders in a sensitive area of the relationship between the legislature and the Courts should been made.

The purpose of interlocutory orders is to preserve in status-quo the rights of the parties, so that, the proceedings do not become infructuous by any unilateral overt acts by one side or the other during its pendency.

One of the contentions urged was as to the invalidity of the amendment for non-compliance with the proviso to Article 368(2) of the Constitution. It has now been unanimously held that Paragraph 7 attracted the proviso to article 368(2). The interlocutory orders in this case were necessarily 777 justified so that, no land-slide changes were allowed to occur rendering proceedings ineffective and infructuous.

52. With the finding and observations as aforesaid W.P.No. 17 of 1991 is dismissed. Writ petition in Rule No. 2421 of 1990 in the High Court of Gauhati is remitted back to the High Court for disposal in accordance with law and not inconsistent with the findings and observations contained in this order.

VERMA, J. : This matter relating to disqualification on the ground of defection of some members of the Negaland legislative Assembly under the Tenth Schedule inserted by the Constitution (Fifty-Second Amendment) Act, 1985, was heard along with some other similar matters relating to several Legislative Assemblies including those of Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa, since all of them involved the decision of certain constitutional questions relating to the constitutional validity of para 7 of the Tenth Schedule and consequently the validity of the Constitution (Fifty-Second Amendment) Act, 1985 itself. At the hearing, several learned counsel addressed us on account of which the hearing obviously took some time. Even during the course of the hearing, the actions of some Speakers tended to alter the status quo, in some cases resulting in irreversible consequences which could not be corrected in the event of para 7 of the Tenth Schedule being held invalid or the impugned orders of the Speakers being found justiciable and, on merits illegal and, therefore, the urgency increased of deciding the questions debated before us at the earliest. For this reason, we indicated during the course of the hearing that we would pronounce our operative conclusions soon after conclusion of the hearing with reasons therefor to follow. Accordingly, on conclusion of the hearing on November 1, 1991, we indicated that the operative conclusions would be pronounced by us at the next sitting of the Bench when it assembled on November 12, 1991 after the Diwali Vacation. The operative conclusions of the majority (Venkatachaliah, Reddy and Agrawal, JJ.) as well as of the miority (Lalit Mohan Sharma and J.S.Verma,JJ.)were thus pronounced on November 12, 1991. We are now indicating herein our reasons for the operative conclusions of the minority view.

The unanimous opinion according to the majority as well as the minority is that para 7 of the tenth Schedule enacts a provision for complete exclusion of judicial review including the jurisdiction of the 778 Supreme Court under Article 136 and of the High Courts under Articles 226 and 227 of the Constitution and, therefore, it makes in terms and in effect a change in Articles 136, 226 and 227 of the Constitution which attracts the proviso to clause (2) of Article 368 of the Constitution; and therefore, ratification by the specified number of State Legislatures before the Bill was presented to the President for his assent was necessary, in accordance therewith. The majority view is that in the absence of such ratification by the State legislatures, it is para 7 alone of the Tenth Schedule which is unconstitutional; and it being severable from the remaining part of the Tenth Schedule, para 7 alone is liable to be struck down rendering the speakers’decision under para 6 that of a judicial tribunal amenable to judicial review by the Supreme court and the High courts under Article 136, 226 and 227. The minority opinion is that the effect of invalidity of para 7 of the Tenth Schedule is to invalidate the entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth Schedule since the President’s assent to the bill without prior ratification by the State Legislatures is non est.

The minority view also is that para 7 is not severable from the remaining part of the Tenth Schedule and the Speaker not being an independent adjudicatory authority for this purpose as contemplated by a basic feature of democracy, the remaining part of the Tenth Schedule is in excess of the amending powers being violative of a basic feature of the Constitution. In the minority opinion, we have held that the entire constitution (Fifty-Second Amendment) Act, 1985 is unconstitutional and an abortive attempt to make the constitutional Amendment indicated therein.

Before proceeding to give our detailed reasons, we reproduce the operative conclusions pronounced by us on November 12, 1991 in the minority opinion (Lalit Mohan Sharma and J.S. Verma, JJ.) as under :

“For the reasons to be given in our detailed judgment to follow, our operative conclusions in the minority opinion on the various constitutional issues are as follows :

1.Pare 7 of the Tenth Schedule, in clear terms and in effect, excludes the jurisdiction of all courts, including the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 to entertain any challenge to the decision under para 6 on any ground even of illegality or perversity, not only 779 at an interim stage but also after the final decision on the question of disqualification on the ground of defection.

2. Para 7 of the Tenth Schedule, therefore, in terms and in effect, makes a change in Article 136 in Chapter IV of Part V; and Articles 226 and 227 in Chapter V of Part VI of the Constitution attracting the proviso to clause (2) of Article 368.

3. In view of para 7 in the Bill resulting in the constitution (Fifty-Second Amendment) Act, 1985, it was required to be ratified by the Legislature of not less than one-half of the States as a condition precedent before the Bill could be presented to the President for assent, in accordance with the mandatory special procedure prescribed in the proviso to clause (2) of Article 368 for exercise of the constituent power. Without ratification by the specified number of State Legislatures, the stage for presenting the Bill for assent of the President did not reach and, therefore, the so- called assent of the President was non est and did not result in the constitution standing amended in accordance with the terms of the Bill.

4. In the absence of ratification by the specified number of State Legislatures before presentation of the Bill to the President for his assent, as required by the proviso to clause (2) of Article 368, it is not merely para 7 but, the entire Constitution (Fifty-Second Amendment) Act, 1985 which is rendered unconstitutional, since the constituent power was not exercised as prescribed in Article 368, and therefore, the Constitution did not stand amended in accordance with the terms of the Bill providing for the amendment.

5.Doctrine of Severability cannot be applied to a Bill making a constitutional amendment where any part thereof attracts the proviso to clause (2) of Article 368.

6. Doctrine of Severability is not applicable to permit striking down para 7 alone saving the remaining provisions of the Bill making the Constitutional Amendment on the ground that para 7 alone attracts the proviso to clause (2) of Article 368.

7. Even otherwise, having regard to the provisions of the Tenth Schedule of the Constitution inserted by the Constitution (Fifty-Second Amendment) Act, 1985, the Doctrine of Severability does not apply to it.

8. Democracy is a part of the basic structure of the Constitution and free and fair elections with provision for resolution of disputes relating to the same as also for adjudication of those relating to subsequent disqualification by an independent body outside the House are essential features of the democratic system in our Constitution.

Accordingly, an independent adjudicatory machinery for resolving disputes relating to the competence of Members of the House is envisaged as a attribute of this basic feature. The tenure of the Speaker who is the authority in the Tenth Schedule to decide this dispute is dependent on the continuous support of the majority in the House and, therefore, he (the Speaker) does not satisfy the requirement of such an independent adjudicatory authority; and his choice as the sole arbiter in the matter violates an essential attribute of the basic feature.

9.Consequently, the entire Constitution (Fifty- Second Amendment) Act, 1985 which inserted the Tenth Schedule together with clause (2) in Articles 102 and 191, must be declared unconstitutional or an abortive attempt to so amend the Constitution.

10.It follows that all decisions rendered by the several Speakers under the Tenth Schedule must also be declared nullity and liable to be ignored.

11. On the above conclusions, it does not appear necessary or appropriate to decide the remaining questions urged.” it is unnecessary in this judgment to detail the facts giving rise to the debate on the constitutional issues relating to the validity of the Tenth Schedule, more particularly para 7 therein, introduced by the Constitution (Fifty-second Amendment) Act, 1985. Suffice it to say that these matters arise out of certain actions of the Speakers of several Legislative Assemblies under the Tenth Schedule.

Arguments on these questions were 781 addressed to us by several learned counsel, namely, the learned Attorney General, S/Shri A.K. Sen, Shanti Bhushan, M.C. Bhandare, F.S. Nariman, Soli J. Sorabjee, R.K. Garg, Kapil Sibal, M.R. Sharma, Ram Jethmalani, N.S. Hegde, O.P.

Sharma, Bhim Singh and R.F. Nariman. It may be mentioned that some learned counsel modified their initial stand to some extent as the hearing progressed by advancing alternative arguments as well. Accordingly, the several facets of each constitutional issue debated before us were fully focused during the hearing. The main debate, however, was on the construction of paras 6 and 7 of the Tenth Schedule and the validity of the Constitutional Amendment.

Arguments were also addressed on the question of violation, if any,of any basic feature of the Constitution by the provisions of the Tenth Schedule.

The points involved in the decision of the constitutional issues for the purpose of our opinion may be summarised broadly as under :- (A) Construction of para 6 of the Tenth Schedule. Its effect and the extent of exclusion of judicial review thereby.

(B) Construction of para 7 of the Tenth Schedule. Its effect and the extent of exclusion of judicial review thereby.

(C) In case of total exclusion of judicial review including the jurisdiction of Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution by the Tenth Schedule, does para 7 make a change in these Articles attracting the proviso to clause (2) of Article 368 of the Constitution ? (D) The effect of absence of prior ratification by the State Legislatures before the Bill making provisions for such amendment was presented to the President for assent, on the constitutional validity of the Tenth Schedule.

(E) Severability of para 7 from the remaining part of the Tenth Schedule and its effect on the question of constitutional validity of the Tenth Schedule.

(F) Violation of basic feature of the Constitution, if any, by the Tenth Schedule as a whole or any part thereof and its effect on the constitutionality for this reason.

782 (G) Validity of the Tenth Schedule with reference to the right of dissent of members with particular reference to Article 105.

As indicated by us in our operative conclusions pronounced earlier, we need not express our concluded opinion on the points argued before us which are not necessary for supporting the conclusion reached by us that the entire Tenth Schedule and consequently the Constitution (Fifty-Second Amendment) Act, 1985 is unconstitutional on the view we have taken on the other points. We are, therefore, giving our reasons only in respect of the points decided by us leading to the conclusion we have reached.

At this stage, it would be appropriate to mention the specific stand of the Speakers taken at the hearing. The learned counsel who appeared for the several Speakers clearly stated that they were instructed to apprise us that the Speakers did not accept the jurisdiction of this Court to entertain these matters in view of the complete bar on jurisdiction of the courts enacted in para 7 read with para 6 of the Tenth Schedule. Accordingly, they abstained from addressing us on the merits of the impugned orders which led to these matters being brought in this Court in spite of our repeated invitation to them to also address us on merits in each case, which all the other learned counsel did. No doubt, this Court’s jurisdiction to decide the constitutional validity of the Tenth Schedule was conceded, but no more.

It is in these extra-ordinary circumstances that we had to hear these matters. We need not refer herein to the details of any particular case since the merits of each case are dealt separately in the order of that case. Suffice it to say that the unanimous view of the Bench is that the Speakers’ decision disqualifying a member under the Tenth Schedule is not immune from judicial scrutiny. According to the majority it is subject to judicial scrutiny on the ground of illegality or perversity which in the minority view, it is a nullity liable to be so declared and ignored.

We consider it apposite in this context to recall the duty of the Court in such delicate situations. This is best done by quoting Chief Justice Marshall in Cohens v. Virginia[1821] USSC 18; , 6 Wheat 264, 404, 5 L.Ed.257, 291 [1821], wherein he said :

783 “It is most true, that this Court will not take Jurisdiction if it should not : but it is equally true that it must take jurisdiction if it should.

The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do, is to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

XXX XXX XXX ….If the question cannot be brought in a court, then there is no case in law or equity, and no jurisdiction is given by the words of the article.

But if, in any controversy depending in a court, the cause should depend on the validity of such a law, that would be a case arising under the constitution, to which the judicial power of the United States would extend…..” (emphasis supplied) More recently, Patanjali Sastri, CJ., while comparing the role of this Court in the constitutional scheme with that of the U.S. Supreme Court, pointed out in the State of Madras v. V.G. Row [1952] INSC 19; [1952] SCR 597 that the duty of this Court flows from express provisions in our Constitution while such power in the U.S. Supreme Court has been assumed by the interpretative process giving a wide meaning to the “due process” clause. Sastri, CJ., at p.605, spoke thus:

“Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of 784 reviewing legislative acts under cover of the widely interpreted `due process’ clause in the Fifth and Fourteenth Amendments. If,then, the, courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the `fundamental rights’, as to which this court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with legislatures in the country.” (emphasis supplied) We are in respectful agreement with the above statement of Sastri, CJ, and wish to add that even though such an obvious statement may have been necessary soon after the Constitution came into force and may not be a necessary reminder four decades later at this juncture, yet it appears apposite in the present context to clear the lingering doubts in some minds. We have no hesitation in adding further that while we have no desire to clutch at jurisdiction, at the same time we would not be deterred in the performance of this constitutional duty whenever the need arises.

We would also like to observe the unlike England, where there is no written Constitution and Parliament is supreme, in our country there is a written Constitution delineating the spheres of jurisdiction of the legislature and the judiciary whereunder the power to construe the meaning of the provisions in the Constitution and the laws is entrusted to the judiciary with finality attached to the decision of this Court inter alia by Article 141 about the true meaning of any enacted provision and Article 144 obliges all authorities in the country to act in aid of this Court. It is, therefore, not permissible in our constitutional scheme for any other authority to claim that power in exclusivity, or in supersession of this Court’s verdict. Whatever be the controversy prior to this Court entertaining such a matter, it must end when the court is seized of the matter for pronouncing its verdict and it is the constitutional obligation of every person and authority to accept its binding effect when the decision is rendered by this Court.

It is also to be remembered that in our constitutional scheme based on 785 democratic principles which include governance by rule of law, every one has to act and perform his obligations according to the law of the land and it is the constitutional obligation of this Court to finally say what the law is. We have no doubt that the Speakers and all others sharing their views are alive to this constitutional scheme, which is as much the source of their jurisdiction as it is of this Court and also conscious that the power given to each wing is for the performance of a public duty as a constitutional obligation and not for self-aggrandisement.

Once this perception is clear to all, there can be no room for any conflict.

The Tenth Schedule was inserted in the Constitution of India by the Constitution (Fifty-Second Amendment) Act, 1985 which came into force with effect from 1.3.1985 and is popularly known as the Anti-Defection Law. The Statement of Objects and Reasons says that this amendment in the Constitution was made to combat the evil of political defections which has become a matter of national concern and unless combated, is likely to undermine the very foundations of our democratic system and the principles which sustained it. This amendment is, therefore, for outlawing defection to sustain our democratic principles. The Tenth Schedule contains eight paras. Para 1 is the interpretation clause defining `House’ to mean either House of Parliament or the legislative Assembly or, as the case may be, either House of the Legislature of a State. The expressions `legislature party’ and `original political party’ which are used in the remaining paras are also defined. Para 2 provides for disqualification on ground of defection. Para 3 provides that disqualification on ground of defection is not to apply in case of split indicating therein the meaning of `split.

Para 4 provides that disqualification on ground of defection is not to apply in case of merger. Para 5 provides exemption for the Speaker or the Deputy speaker of the House of the People or of the Legislative Assembly of the State, the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State from the applicability of the provisions of the Tenth Schedule. Para 8 contains the rule making power of the Chairman or the Speaker.

For the purpose of deciding the jurisdiction of this Court and the justiciability of the cause, it is paras 6 and 7 which are material and they read as under:

“6. Decision on questions as to disqualification of ground of defection. – 786

1. If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final :

Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.

2. All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of Article 122 or, as the case may be, proceedings in the Legislature, of a State within the meaning of Article 212.

7. Bar of Jurisdiction on courts.- Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.” We shall now deal with the points involved enumerated earlier.

Points `A’ & `B’ – Paras 6 & 7 of Tenth Schedule In support of the objection raised to the jurisdiction of this Court and the justiciability of the Speaker’s decision relating to disqualification of a member, it has been urged that sub-paragraph (1) of para 6 clearly lays down that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final and sub- paragraph (2) proceeds to say that all proceedings under sub-paragraph (1) ‘shall be deemed to the proceedings in Parliament …… or, ….. proceedings in the Legislature of a State’ within the meaning of Article 122 or Article 212, as the case may be. It was urged that the clear provision in para 6 that the decision of the 787 Chairman/Speaker on the subject of disqualification under this Schedule shall be final and the further provision that all such proceedings `shall be deemed to be proceedings in Parliament …. or, …. proceedings in the Legislature of as State’, within the meaning of Article 122 or Article 212, as the case may be, clearly manifests the intention that the jurisdiction of all courts including the Supreme Court is ousted in such matters and the decision on this question is not justiciable. Further argument is that para 7 in clear words thereafter reiterates that position by saying that `notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule. In other words, the argument is that para 6 by itself provides for ouster of the jurisdiction of all courts including the Supreme Court and para 7 is a remanifestation of that clear intent in case of any doubt arising from para 6 alone. On this basis it was urged that the issue raised before us is not justiciable and the Speaker or the Chairman, as the case may be, not being `Tribunal’ within the meaning of that expression used in Article 136 of the Constitution, their decision is not open to judicial review.

In reply, it was urged that finality Clause in sub- paragraph (1) of para 6 does not exclude the jurisdiction of the high Courts under Articles 226 and 227 and of this Court under Article 136. Deeming provision in sub-paragraph (2) of Para 6, it was urged, has the only effect of making it a `proceedings in Parliament’ or `proceedings in the Legislature of a State’ to bring it within the ambit of clause (1) of Articles 122 or 212 but not within clause (2) of these Articles. The expression `proceedings in Parliament’ and `proceedings in the Legislature of a State’ are used only in clause (1) of Articles 122 and 212 but not in clause (2) of either of these Articles, on account of which the scope of the fiction cannot be extended beyond the limitation implicit in the specific words used in the legal fiction. This being so, it was argued that immunity extended only to `irregularity of procedure’ but not to illegality as held in Keshav Singh -[1965] 1 SCR 413. In respect of para 7, the reply is that the expression `no court’ therein must be similarly construed to refer only to the courts of ordinary jurisdiction but not the extra- ordinary jurisdiction of the High Courts under Article 226 & 227 and the Plenary jurisdiction of Supreme Court under Article 136. It was also argued that the Speaker/Chairman while deciding the question of disqualification of member under para 6 exercises a judicial function of the State which otherwise would be vested in the courts and, 788 therefore, in this capacity he acts as `Tribunal amenable to the jurisdiction under Articles 136, 226 and 227 of the Constitution. Shri Sibal also contended that the bar in para 7 operates only at the interim stage, like other election disputes, and not after the final decision under para 6.

The finality clause in sub-paragraph (1) of para 6 which says that the decision of the Chairman or, as the case may be, the Speaker of such House shall be final is not decisive. It is settled that such a finality clause in a statute by itself is not sufficient to exclude the jurisdiction of the High Courts under Articles 226 and 227 and the Supreme Court under Article 136 of the Constitution, the finality being for the statute alone. This is apart from the decision being vulnerable on the ground of nullity.

Accordingly, sub-paragraph (1) alone is insufficient to exclude the extra-ordinary jurisdiction of the High Courts and the plenary jurisdiction of this Court. The legal fiction in sub-paragraph (2) of para 6 can only bring the proceedings under sub-paragraph (1) thereof within the ambit of clause (1) of Article 122 or clause (1) 212, as the case may be since the expressions used in sub-paragraph (2) of para 6 of the tenth Schedule are `shall be deemed to be proceedings in Parliament’ or `proceedings in the Legislature of a State’ and such expressions find place both in Articles 122 and 212 only in clause (1) and not clause (2) thereof. The ambit of the legal function must be confined to the limitation implicit in the words used for creating the fiction and it cannot be given an extended meaning to include therein something in addition. It is also settled that a matter falling within the ambit of clause (1) of either of these two Article is justiciable on the ground of illegality or perversity in spite of the immunity it enjoys to a challenge on the ground of `irregularity of procedures’.

To overcome this result, it was argued that such matter would fall within the ambit of Clause (2) of both Articles 122 and 212 because the consequence of the order of disqualification by the Speaker/Chairman would relate to the conduct of business of the House. In the first place, the two separate clauses in Articles 122 and 212 clearly imply that the meaning and scope of the two cannot be identical even assuming there be some overlapping area between them.

What is to be seen is the direct impact of the action and its true nature and not the further consequences flowing therefrom. it cannot be doubted in view of the clear language of sub-paragraph (2) of para 6 that it relates to clause (1) of both Articles 122 and 212 and the legal fiction cannot, therefore, be extended beyond the limits 789 of the express words used in the fiction. In construing the fiction it is not to be extended beyond the language of the Section by which it is created and its meaning must be restricted by the plain words used. It cannot also be extended by importing another fiction. The fiction in para 6(2) is a limited one which serves its purpose by confining it to clause (1) alone of Articles 122 and 212 and, therefore,, there is no occasion to enlarge its scope by reading into it words which are not there and extending it also to clause (2) of these Articles. See Commissioner of Income-tax v. Ajax Products Ltd., [1964] INSC 224; [1965] 1 SCR 700.

Moreover, it does appear to us that the decision relating to disqualification of a member does not relate to regulating procedure or the conduct of business of the House provided for in clause (2) of Articles 122 and 212 and taking that view would amount to extending the fiction beyond its language and importing another fiction for this purpose which is not permissible. That being so, the matter falls within the ambit of Clause (1) only of Articles 122 and 212 as a result of which it would be vulnerable on the ground of illegality and perversity and, therefore, justiciable to that extent.

It is, therefore, not possible to uphold the objection of jurisdiction on the finality clause or the legal fiction created in para 6 of the Tenth Schedule when justiciability of the clause is based on a ground of illegality or perversity (see Keshav Singh – [1964] INSC 209; [1965] 1 SCR 413). This in our view is the true construction and effect of para 6 of Tenth Schedule.

We shall now deal with para 7 of the Tenth Schedule.

The words in para 7 of the Tenth Schedule are undoubtedly very wide and ordinarily mean that this provision supersedes any other provision in the Constitution. This is clear from the use of the non obstinate clause `notwithstanding anything in this Constitution’ as the opening words of para 7. The non obstinate clause followed by the expression `no court shall have any jurisdiction’leave no doubt that the bar of jurisdiction of courts contained in para 7 is complete excluding also the jurisdiction of the Supreme court under Article 136 and that of the High Courts under Articles 226 and 227 of the Constitution relating to matters covered by para 7. The question, therefore, is of the scope of para 7.

The scope of para 7 for this purpose is to be determined by the expression `in respect of any matter connected with disqualification of a member of a House under this Schedule’.

790 One of the constructions suggested at the hearing was that this expression covers only the intermediate stage of the proceedings relating to disqualification under para 6 and not the end stage when the final order is made under para 6 on the question of disqualification. It was suggested that this construction would be in line with the construction made by this Court in its several decisions relating to exclusion of Courts’ jurisdiction in election disputes at the intermediate state under Article 329 of the Constitution. This construction suggested of para 7 does not commend to us since it is contrary to the clear and unambiguous language of the provision. The expression `in respect of any matter connected with the disqualification of a member of a House under this Schedule’ is wide enough to include not merely the intermediate stage of the proceedings relating to disqualification but also the final order on the question of disqualification made under para 6 which is undoubtedly such a matter. There is thus express exclusion of all courts’ jurisdiction even in respect of the final order.

As earlier indicated by virtue of the finality clause and the deeming provision in para 6, there is exclusion of all courts’ jurisdiction to a considerable extent leaving out only the area of justiciability on the ground of illegality or perversity which obviously is relatable only to the final order under para 6. This being so, enactment of para 7 was necessarily made to bar the jurisdiction of courts also in respect of matters falling outside the purview of the exclusion made by para 6. para 7 by itself and more so when read along with para 6 of the Tenth Schedule, leaves no doubt that exclusion of all courts’ jurisdiction by para 7 is total leaving no area within the purview, even of the Supreme Court or the High Courts under Articles 136 , 226 and 227. The language of para 7 being explicit, no other aid to construction is needed. Moreover, the speech of the Law Minister who piloted the Bill in the Lok Sabha and that of the Prime Minister in the Rajya Sabha as well as the debate on this subject clearly show that these provisions were enacted to keep the entire matter relating to disqualification including the Speakers’ final decision under para 6 on the question of disqualification, wholly outside the purview of of all courts including the Supreme Court and the High Courts. The legislative history of the absence of such a provision excluding the courts’ jurisdiction in the two earlier Bills which lapsed also re- inforces the conclusion that enactment of para 7 was clearly to provide for total ouster of all courts’ jurisdiction.

791 In the face of this clear language, there is no rule of construction which permits the reading of para 7 in any different manner since there is no ambiguity in the language which is capable of only one construction, namely, total exclusion of the Jurisdiction of all courts including that of the Supreme Court and the High Courts under Articles 136, 226 and 227 of the Constitution in respect of every matter connected with the disqualification of a member of a House under the Tenth Schedule including the final decision rendered by the Speaker/Chairman, as the case may be. Para 7 must, therefore, be read in this manner alone.

The question now is of the effect of enacting such a provision in the Tenth Schedule and the applicability of the proviso to clause (2) of Article 368 of the Constitution.

Point `C’ – Applicability of Article 368(2) Proviso The above construction of para 7 of the Tenth Schedule gives rise to the question whether it thereby makes a change in Article 136 which is in Chapter IV of part V and Articles 226 and 227 which are in Chapter V of Part VI of the Constitution. If the effect of para 7 is to make such a change in these provisions so that the proviso to clause (2) of Article 368 is attracted, then the further question which arises is of the effect on the Tenth Schedule of the absence of ratification by the specified number of State Legislatures, it being admitted that no such ratification of the Bill was made by any of the State Legislatures.

Prima facie it would appear that para 7 does seek to make a change in Articles 136 , 226 and 227 of the Constitution inasmuch as without para 7 in the Tenth Schedule a decision of the Speaker/ Chairman would be amenable to the jurisdiction of the Supreme Court under Article 136 and of the high Courts under Articles 226 and 227 as in the case of decisions as to other disqualifications provided in clauses (1) of Article 102 or 191 by the President/Governor under Article 103 or 192 in accordance with the opinion of the Election Commission which was the Scheme under the two earlier Bills which lapsed.

However, some learned counsel contended placing reliance on Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, [1951] INSC 45; [1952] SCR 89 and Sajjan Singh v. State of Rajasthan, [1964] INSC 246; [1965] 1 SCR 933 that the effect of such total exclusion of the jurisdiction of the Supreme Court and the High Courts does not make a change in Articles 136, 226 and 227. A close reading of these decisions indicates that instead 792 of supporting this contention, they do infact negative it.

In Sankari Prasad, the challenge was to Articles 31A and 31B inserted in the Constitution by the Constitution (First Amendment) Act, 1951. One of the objections was based on absence of ratification under Article 368. While rejecting this argument, the Constitution Bench held as under:- “It will be seen that these Articles do not either in terms or in effect seek to make any change in article 226 or in articles 132 and 136. Article 31A aims at saving laws providing for the compulsory acquisition by the State of a certain kind of property from the operation of article 13 read with other relevant articles in Part III, while article 31B purports to validate certain specified Acts and Regulations already passed, which, but for such a provision, would be liable to be impugned under article 13. It is not correct to say that the powers of the High Court under article 226 to issue writs “for the enforcement of any of the rights conferred by Part III” or of this Court under articles 132 and 136 to entertain appeals from orders issuing or refusing such writs are in any way affected. They remain just the same as they were before : only a certain class of case has been excluded from the purview of Part III and the courts could no longer interfere, not because their powers were curtailed in any manner or to any extend, but because there would be no occasion hereafter for the exercise of their powers in such cases.” [emphasis supplied] The test applied was whether the impugned provisions inserted by the Constitutional Amendment did `either in terms or in effect seek to make any change in Article 226 or in Articles 132 and 136′. Thus the change may be either in terms i.e. explicit or in effect in these Articles to require ratification. The ground for rejection of the argument therein was that the remedy in the courts remained unimpaired and unaffected by the change and the change was really by extinction of the right to seek the remedy. In other words, the change was in the right and not the remedy of approaching the court since there was no occasion to invoke the remedy, the right itself being taken away. To the same effect is the decision in Sajjan Singh, wherein Sankari Prasad was followed stating clearly that there was 793 no justification for reconsidering Sankari Prasad.

Distinction has to be drawn between the abridgement or extinction of a right and restriction of the remedy for enforcement of the right. If there is an abridgement or extinction of the right which results in the disappearance of the cause of action which enables invoking the remedy and in the absence of which there is no occasion to make a grievance and invoke the subsisting remedy, then the change brought about is in the right and not the remedy. To this situation, Sankari Prasad and Sajjan Singh apply. On the other hand, if the right remains untouched so that a grievance based thereon can arise and, therefore, the cause of action subsists, but the remedy is curtailed or extinguished so that the cause of action cannot be enforced for want of that remedy, then the change made is in the remedy and not in the subsisting right. To this latter category, Sankari Prasad and Sajjan Singh have no application. This is clear from the above-quoted passage in Sankari Prasad which clearly brings out this distinction between a change in the right and a change in the remedy.

The present case, in unequivocal terms, is that of destroying the remedy by enacting para 7 in the Tenth Schedule making a total exclusion of judicial review including that by the Supreme Court under Article 136 and the High Courts under Articles 226 and 227 of the Constitution. But for para 7 which deals with the remedy and not the right, the jurisdiction of the Supreme Court under Article 136 and that of the High Courts under Articles 226 and 227 would remain unimpaired to challenge the decision under para 6, as in the case of decisions relating to other disqualifications specified in clause (1) of Articles 102 and 191, which remedy continues to subsist.

Thus, this extinction of the remedy alone without curtailing the right, since the question of disqualification of a member on the ground of defection under the Tenth Schedule does required adjudication on enacted principles, results in making a change in Article 136 in Chapter IV in Part V and Articles 226 and 227 in Chapter V in Part VI of the Constitution.

On this conclusion, it is undisputed that the proviso to clause (2) of Article 368 is attracted requiring ratification by the specified number of State Legislatures before presentation of the Bill seeking to make the constitutional amendment to the President for his assent.

Point `D’ – Effect of absence of ratification 794 The material part of Article 368 is as under :

“368. Power of Parliament to amend the Constitution and Procedure therefore. – (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent Power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.

(2) An amendment of this Constitution may be initiated only by the introduction of a Bill, for the purpose in either House of parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill :

Provided that if such amendment seeks to make any change in – (a) Article 54, Article 55, Article 73, Article 162 or Article 241, or (b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or (c) any of the Lists in the Seventh Schedule, or (d) the representation of States in Parliament, or (e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those legislatures before the Bill making provision for such amendment is presented to the President for assent.” (emphasis supplied) it is clause (2) with its proviso which is material.

The main part of clause (2) prescribes that a constitutional amendment can be initiated only by the introduction of a Bill for the purpose and when the Bill is passed 795 by each House by a majority of the total membership of that House and by a majority of not less than tow-thirds of the members of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill. In short, the Bill not being passed by the required majority is presented to the President for his assent to the Bill and on giving of the assent, the Constitution stands amended accordingly.

Then comes, the proviso which says that `if such an amendment seeks to make any change’ in the specified provisions of the Constitution, the amendment shall also require to be ratified by the Legislature of not less than one-half of the States by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent. In other words, the proviso contains a constitutional limitation on the amending power; and prescribes as a part of the special procedure, prior assent of the State legislatures before Presentation of the Bill to the President for his assent in the case of such Bills. This is a condition interposed by the proviso in between the passing of the Bill by the requisite majority in each House and presentation of the Bill to the President for his assent, which assent results in the Constitution automatically standing amended in accordance with terms of the Bill.

Thus, the Bills governed by the proviso cannot be presented to the President for his assent without the prior ratification by the specified number of State Legislatures or in other words, such ratification is a part of the special procedure or a condition precedent to presentation of the Bill governed by the proviso to the President for his assent. It logically follows that the consequence of the Constitution standing amended in accordance with the terms of the Bill on assent by the President, which is the substantive part of Article 368, results only when the Bill has been presented to the President for his assent in conformity with the special procedure after performance of the conditions precedent, namely, passing of the Bill by each House by the requisite majority in the case of all Bills; and in the case of Bills governed by the proviso, after the Bill has been passed by the requisite majority in each House and it has also been ratified by the legislature of not less than one-half of the States.

The constituent power for amending the Constitution conferred by Article 368 also prescribes the mandatory procedure in clause (2) including its proviso, for its exercise. The constituent power cannot, therefore, be exercised in any other manner and non-compliance of the special procedure 796 so prescribed in Article 368 (2) cannot bring about the result of the Constitution standing amended in accordance with the terms of the Bill since that result ensues only at the end of the prescribed mandatory procedure and not otherwise. The substantive part of Article 368 which provides for the resultant amendment is the consequence of strict compliance of the mandatory special procedure prescribed for exercise of the constituent power and that result does not ensue except in the manner prescribed.

The true nature and import of the amending power and procedure under Article 368 as distinguished from the ordinary legislative procedure was indicated in Kesavananda Bhartim[1973] Supp. SCR 1 at pp. 561, 563 & 565 :

“….Under Article 368 However, a different and special procedure is provided for amending the constitution. A Bill has to be introduced in either House of Parliament and must be passed by each House separately by a special majority. It should be passed not only by 2/3rds majority of the members present and voting but also by a majority of the total strength of the House. No joint sitting of the two Houses is permissible. In the case of certain provisions of the Constitution which directly or indirectly affect interstate relations, the proposed amendment is required to be ratified by the Legislatures which is not a legislative process of not less than one half of the States before the Bill proposing the amendment is presented to the President for his assent. The procedure is special in the sense that it is different and more exacting or restrictive than the one by which ordinary laws are made by Parliament.

Secondly in certain matters the State Legislatures are involved in the process of making the amendment. Such partnership between the Parliament and the State Legislatures in making their own laws by the ordinary procedure is not recognised by the Constitution. It follows from the special provision made in Article 368 for the amendment of the Constitution that our Constitution is a `rigid’ or `controlled’constitution because the Constituent Assembly has “left a special direction as to how the constitution is to be changed. In view of Article 368, when the special procedure is successfully followed, the proposed amendment automatically becomes a part of the 797 constitution or, in other words, it writes itself into the constitution.” XXX XXX XXX “…. But when it comes to the amendment of the Constitution, a special procedure has been prescribed in Article 368, Since the result of following the special procedure under the Article is the amendment of the constitution the process which brings about the result is known as the exercise of constituent power by the bodies associated in the task of the amending the constitution. It is, therefore, obvious, that when the Parliament and the State Legislatures function in accordance with Article 368 with a view to amend the constitution, they exercise constituent power as distinct from their ordinary legislative power under Articles 245 to 248. Article 368 is not entirely procedural. Undoubtedly part of it is procedural. But there is a clear mandate that on the procedure being followed the `proposed amendment shall become part of the constitution, which is the substantive part of Article 368.

Therefore, the peculiar or special power to amend the constitution is to be sought in Article 368 only and not elsewhere.” XXX XXX XXX “….The true position is that the alchemy of the special procedure prescribed in Article 368 produces the constituent power which transport the proposed amendment into the constitution and gives it equal status with the other parts of the constitution.” (emphasis supplied) Apart from the unequivocal language of clause (2) including the proviso therein indicating the above result of prior ratification being a part of the special procedure or condition precedent for valid assent of the President, the same result is reached even by another route. The ordinary role of a proviso is to carve out an exception from the general rule in the main enacting part. The main enacting part of clause (2) lays down that on a Bill for a constitutional amendment being passed in each House by a requisite majority, it shall be presented to the President for his assent and on the assent being given , the Constitution shall stand amended in accordance 798 with the terms of the Bill. The proviso then carves out the exception in case of Bills seeking to make any change in the specified Articles of the Constitution prescribing that in the case of those Bills, prior ratification by the Legislatures of not less than one-half of the States is also required before the Bill is presented to the President for assent. This means that a Bill falling within the ambit of the proviso is carved out of the main enactment in clause (2) as an exception on account of which it cannot result in amendment of the Constitution on the President’s assent without prior ratification by the specified number of State Legislatures. The proviso in clause (2) is enacted for and performs the function of a true proviso by qualifying the generality of the main enactment in clause (2) in providing an exception and taking out of the main enactment in clause (2) such Bills which but for the proviso would fall within the main part. Not only the language of the main enactment in clause (2) and the proviso thereunder is unequivocal to give this clear indication but the true role of a proviso, the form in which the requirement of prior ratification if such a Bill by the State Legislatures is enacted in Article 368 lend further assurance that this is the only construction of clause (2) with its proviso which can be legitimately made. If this be the correct constructions of Article 368 (2) with the proviso as we think it is, then there is no escape from the logical conclusion that a Bill to which the proviso applies does not result in amending the Constitution in accordance with its terms on assent of the President if it was presented to the President for his assent and the President gave his assent to the Bill without prior ratification by the specified number of the State Legislatures. This is the situation in the present case.

Thus the requirement of prior ratification by the State Legislatures is not only a condition precedent forming part of the special mandatory procedure for exercise of the constituent power and a constitutional limitation thereon but also a requirement carving out an exception to the general rule of automatic amendment of the Constitution on the President’s assent to the Bill.

In other words, clause (2) with the proviso therein itself lays down that President’s assent does not result in automatic amendment of the Constitution in case of such a Bill it was not duly ratified before presentation to the President for his assent. Nothing more is needed to show that not only para 7 of the Tenth Schedule but the entire Constitution (Fifty- 799 Second Amendment) Act, 1985 is still born or an abortive attempt to amend the Constitution for want of prior ratification by the State Legislatures of the Bill before its presentation to the President for his assent.

The result achieved in each case is the same irrespective of the route taken. If the route chosen is for construing the language of clause (2) with the proviso merely a part of it, the requirement or prior ratification is a condition precedent forming part of the special mandatory procedure providing that the constituent power in case of such a Bill can be exercised in this manner alone, the mode prescribed for other Bills being forbidden. If the route taken is of treating the proviso as carving out an exception from the general rule which is the normal role of a proviso, then the result is that the consequence of the Constitution standing amended in terms of the provisions of the Bill on the President’s assent as laid down in the main part of clause (2) does not ensue without prior ratification in case of a Bill to which the proviso applies. There can thus be no doubt that para 7 of the Tenth Schedule which seeks to make a change in Article 136 which is a part of Chapter IV of Part V and Articles 226 and 227 which form part of Chapter V of Part VI of the Constitution, has not been enacted by incorporation in a Bill seeking to make the constitutional Amendment in the manner prescribed by clause (2) read with the proviso therein of Article 368. Para 7 of the Tenth Schedule is, therefore, unconstitutional and to that extent at least the Constitution does not stand amended in accordance with the Bill seeking to make the Constitutional Amendment. The further question now is: its effect on the validity of the remaining part of the Tenth Schedule and consequently the Constitution (Fifty-Second Amendment) Act, 1985 itself.

Point `E’ – Severability of para 7 of Tenth Schedule The effect of absence of ratification indicated above suggests inapplicability of the Doctrine of Severability.

In our opinion, it is not para 7 alone but the entire Tenth Schedule may the Constitution (Fifty-Second Amendment) Act, 1985 itself which is rendered unconstitutional being an abortive attempt to so amend the Constitution. It is the entire Bill and not merely rely para 7 of the Tenth Schedule therein which required prior ratification by the State Legislatures before its presentation to the President for his assent, it being a joint exercise by the Parliament and State Legislatures. The stage for presentation of Bill to the President for his assent not having 800 reached, the President’s assent was non est and it could not be result in amendment of the Constitution in accordance with the terms of the Bill for the reasons given earlier.

Severance of para 7 of the Tenth Schedule could not be made for the purpose of ratification or the President’s assent and, therefore, no such severance can be made even for the ensuing result. If the President’s assent cannot validate para 7 in the absence of prior ratification, the same assent cannot be accepted to bring about a difference result with regard to the remaining part of the Bill.

On this view, the question of applying the Doctrine of Severability to strike down para 7 alone retaining the remaining part of Tenth Schedule does not arise since it presupposes that the Constitution stood so amended on the President’s assent. The Doctrine does not apply to a still born legislation.

The Doctrine of Severability applies in a case where an otherwise validly enacted legislation contains a provision suffering from a defect of lack of legislative competence and the invalid provision is severable leaving the remaining valid provisions a valid provisions a viable whole. This doctrine has no application where the legislation is not validly enacted due to non-compliance of the mandatory legislative procedure such as the mandatory special procedure prescribed for exercise of the constituent power.

It is not possible to infuse life in a still born by any miracle of deft surgery even though it may be possible to continue life by removing a Congenitally defective part by surgical skill. Even the highest degree of surgical skill can help only to continue life but it cannot infuse life in the case of still birth.

With respect, the contrary view does not give due weight to the effect of a condition precedent forming part of the special procedure and the role of a proviso and results in rewriting the proviso to mean that ratification is not a condition precedent but merely an additional requirement of such a Bill to make that part effective.

This also fouls with the expression `Constitution shall stand amended…..’ on the assent of President which is after the stage when the amendment has been made and ratified by the State Legislatures as provided. The historical background of drafting the proviso also indicates the significance attached to prior ratification as a condition precedent for valid exercise of the constituent power.

We are unable to read the Privy Council decision in The Bribery Commissioner V. Pedrick Ranasinghe [1964] UKPC 1; [1965] AC 172 as an authority to 801 support applicability of the Doctrine of Severability in the Present case. In Kesavananda Bharati, the substance of that decision was indicated by Mathew, J., at p. 778 of S.C.R., thus:

“…. that though Ceylon Parliament has plenary power of ordinary legislation, in the exercise of its constitution power it was subject to the special procedure laid down in s, 29 (4)…..” While section 29(4) of Ceylon (Constitution) Order was entirely procedural with no substantive part therein, Article 368 of the Indian Constitution has also a substantive part as pointed out in Kesavananda Bharati.

This distinction also has to be borne in mind.

The challenge in Ranasinghe was only to the legality of a conviction made under the Bribery Act, 1954 as amended by the Bribery Amendment Act, 1958 on the ground that the Tribunal which had made the conviction was constituted under section 41 of the Amending Act which was invalid being in conflict with section 55 of the Constitution and not being enacted by exercise of constituent power in accordance with section 29(4) of the Ceylon (Constitution) Order. Supreme Court of Ceylon quashed the conviction holding section 41 of the Amending Act to be invalid for this reason. The Privy Council affirmed that view and in this context held that section 41 could be severed from rest of the Amending Act.

Ranasinghe was not a case of a Bill passed in exercise of the constituent power without following the special procedure of section 29(4) but of a Bill passed in exercise of the ordinary legislative power containing other provisions which could be so enacted, and including therein section 41 which could be made only in accordance with the special procedure of section 29(4) of the Constitution. The Privy Council made a clear distinction between legislative and constituent powers and reiterated the principles thus:

“….The effect of section 5 of the Colonial Laws Validity Act, which is framed in a manner somewhat similar to section 29(4) of the Ceylon Constitution was that where a legislative power is given subject to certain manner and form, that power does not exist unless and until the manner and form is complied with Lord Sankey L.C. said :

“A Bill, within the scope of sub-section (6) of section 7A, which received the Royal Assent without having been approved by 802 the electors in accordance with that section, would not be a valid act of the legislature. It would be ultra vires section 5 of the Act of 1865.” The Bribery Amendment Act, 1958, in Ranasinghe, was enacted in exercise of the ordinary legislative power and therein was inserted section 41 which could be made only in exercise of the constituent power according to the special procedure prescribed in section 29(4) of the Ceylon (Constitutions) Order. In this situation, only section 41 of the Amending Act was held to be invalid and severed because the special procedure for the constituent power was required only for that provision and not the rest. In the instant case the entire Tenth Schedule is enacted in exercise of the Constituent power under Article 368, not merely para 7 therein, and this has been done without following the mandatory special procedure prescribed. It is, therefore, not a case of severing the invalid constituent part from the remaining ordinary legislation.

Ranasinghe could have application if in an ordinary legislation outside the ambit of Article 368, a provision which could be made only in exercise of the constituent power according to Article 368 had been inserted without following the special procedure, and severance of the invalid constituent part alone was the question. Ranasinghe is, therefore, distinguishable.

Apart from inapplicability of the Doctrine of Severability to a Bill to which the proviso to clause (2) of Article 368 applies, for the reasons given, it does not apply in the present case to strike down para 7 alone retaining the remaining part of the Tenth Schedule. In the first place, the discipline for exercise of the constituent power was consciously and deliberately adopted instead of resorting to the mode of ordinary legislation in accordance with sub-clause (e) of clause (1) of Articles 102 and 191, which would render the decision on the question of disqualification on the ground of defection also amenable to judicial review as in the case of decision on questions relating to other disqualifications. Moreover, even the test applicable for applying the Doctrine of Severability to ordinary legislation as summarised in R.M.D.

Chamarbaughwalla v. The Union of India, [1957] INSC 32; [1957] S.C.R. 930, indicates that para 7 alone is not severable to permit retention of the remaining part of the Tenth Schedule as valid legislation. The settled test whether the enactment would have been made without para 7 indicates that the legislative intent was to make the enactment only with para 7 therein and not without it. This intention is manifest throughout and 803 evident from the fact that but for para 7 the enactment did not require the discipline of Article 368 and exercise of the constituent power. Para 7 follows para 6 the contents of which indicate the importance given to para 7 while enacting the Tenth Schedule. The entire exercise, as reiterated time and again in the debates, particularly the Speech of the Law Minister while piloting the Bill in the Lok Sabha and that of the Prime Minister in the Rajya Sabha, was to emphasise that total exclusion of judicial review of the Speaker’s decision by all courts including the Supreme Court, was the prime object of enacting the Tenth Schedule.

The entire legislative history shows this. How can the Doctrine of Severability be applied in such a situation to retain the Tenth Schedule striking down para 7 alone ? This is further reason for inapplicability of this doctrine.

Point `F’- Violation of basic features The provisions in the Tenth Schedule minus para 7, assuming para 7 to be severable as held in the majority opinion, can be sustained only if they do not violate the basic structure of the Constitution or damage any of its basic features. This is settled by Kesavananda Bharti [1973] Supp. S.C.R. 1. The question, therefore, is whether there is violation of any of the basic features of the Constitution by the remaining part of the Tenth Schedule, even assuming the absence of ratification in accordance with the proviso to clause (2) of Article 368 results in invalidation of para 7 alone.

Democracy is a part of the basic structure of our Constitution; and rule of law, and free and fair elections are basic features of democracy. One of the Postulates of free and fair elections is provision for resolution of election disputes as also adjudication of disputes relating to subsequent disqualifications by an independent authority.

It is only by a fair adjudication of such disputes relating to validity of electrons and subsequent disqualifications of members that true reflection of the electoral mandate and governance by rule of law essential for democracy can be ensured. In the democratic pattern adopted in our Constitution, not only the resolution of election dispute is entrusted to a judicial tribunal, but even the decision on questions as to disqualification of members under Articles 103 and 192 is by the President/Governor in accordance with the opinion of the Election Commission. The constitutional scheme, therefore, for decision on questions as to disqualification of members after being duly elected, contemplates adjudication of such disputes by an independent authority out 804 side the House, namely, President/Governor in accordance with the opinion of the Election Commission, all of whom are high constitutional functionaries with security of tenure independent of the will of the House. Sub-clause (e) of clause (1) in Articles 102 and 191 which provides for enactment of any law by the Parliament to prescribe any disqualification other than those prescribed in the earlier sub-clauses of clause (1), clearly indicates that all disqualifications of members were contemplated within the scope of Articles 102 and 191. Accordingly, all disqualifications including disqualification on the ground of defection, in our constitutional scheme, are different species of the same genus, namely, disqualification, and the constitutional scheme does not contemplate any difference in their basic traits and treatment. It is undisputed that the disqualification on the ground of defection could as well have been prescribed by an ordinary law made by the Parliament under Articles 102 (1) (e) and 191 (1) (e) instead of by resort to the constituent power of enacting the Tenth Schedule. This itself indicates that all disqualifications of members according to the constitutional scheme were meant to be decided by an independent authority outside the House such as the President/Governor, in accordance with the opinion of another similar independent constitutional functionary,, the Election Commission of India, who enjoys the security of tenure of tenure of a Supreme Court judge with the same terms and conditions of office. Thus, for the purpose of entrusting the decision of the question of disqualification of a member, the constitutional scheme envisages an independent authority outside the House and not within it, which may be dependent on the pleasure of the Majority in the House for its tenure.

The Speaker’s office is undoubtedly high and has considerable aura with the attribute of impartiality. This aura of the office was even greater when the Constitution was framed and yet the farmers of the Constitution did not choose to vest the authority of adjudicating disputes as to disqualification of members to the Speaker; and provision was made in Articles 103 and 192 for decision of such disputes by the President/Governor in accordance with the opinion of the Election Commission. To reason is not far to seek.

The Speaker being an authority within the House and his tenure being dependent on the will of the majority therein, likelihood of suspicion of bias could not be ruled out. The question as to disqualification of a member has adjudicatory disposition and, therefore, requires the decision 805 to be rendered in consonance with the scheme for adjudication of disputes. Rule of law has in it firmly entrenched, natural justice, of which, rule against Bias is a necessary concomitant; and basic postulates of Rule against Bias are; Nemo judex in causa sua – `A Judge is disqualified from determining any case in which he may be, or may fairly be suspected to be, biased’; and `it is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.’ This appears to be the underlying principle adopted by the framers of the Constitution in not designating the Speaker as the authority to decide election disputes and questions as to disqualification of members under Articles 103, 192 and 329 and opting for an independent authority outside the House. The framers of the Constitution had in this manner kept the office of the Speaker away from this controversy.

There is nothing unusual in this scheme if we bear in mind that the final authority for removal of a Judge of the Supreme Court and High Court its outside the judiciary in the Parliament under Article 124(4). On the same principle the authority to decide the question of disqualification of a member of legislature is outside the House as envisaged by Articles 103 and 192.

In the Tenth Schedule, the Speaker is made not only the sole but the final arbiter of such dispute with no provision for any appeal or revision against the Speaker’s decision to any independent outside authority. This departure in the Tenth Schedule is a reverse trend and violates a basic feature of the Constitution since the speaker cannot be treated as an authority contemplated for being entrusted with this function by the basic postulates of the Constitution, notwithstanding the great dignity attaching to that office with the attribute of impartiality.

It is the Vice-President of India who is ex-officio chairman of the Rajya Sabha and his position, being akin to that of the President of India, is different from that of the Speaker. Nothing said herein relating to the office of the Speaker applies to the Chairman of the Rajya Sabha, that is, the Vice-President of India. However, the only authority named for the Lok Sabha and the Legislative Assemblies is the Speaker of the House and entrustment of this adjudicatory function fouls with the constitutional scheme and, therefore, violates a basic feature of the Constitution. Remaining part of the Tenth Schedule also is rendered invalid notwithstanding the fact that this defect would not apply to the Rajya Sabha alone whose Chairman is the Vice-President of India, since the Tenth Schedule becomes 806 unworkable for the Lok Sabha and the State Legislatures.

The Statutory exception of Doctrine of Necessity has no application since designation of authority in the Tenth Schedule is made by choice while enacting the legislation instead of adopting the other available options.

Since the conferment of authority is on the Speaker and that provision cannot be sustained for the reason given, even without para 7, the entire Tenth Schedule is rendered invalid in the absence of any valid authority for decision of the dispute.

Thus, even if the entire Tenth Schedule cannot be held unconstitutional merely on the ground of absence of ratification of the Bill, assuming it is permissible to strike down para 7 alone, the remaining part of the Tenth Schedule is rendered unconstitutional also on account of violation of the aforesaid basic feature. Irrespective of the view on the question of effect of absence of ratification, the entire Tenth Schedule must be struck down as unconstitutionally.

Point `G’ – Other contentions We have reached the conclusion that para 7 of the Tenth Schedule is unconstitutional; that the entire Tenth Schedule is constitutionally invalid in the absence of prior ratification in accordance with the proviso to clause (2) of Article 368; that the Doctrine of Severability does not apply in the present case of a constitutional amendment which suffers from the defect of absence of ratification as required by the proviso to clause (2) of Article 368; that the remaining part of the Tenth Schedule minus para 7 is also unconstitutional for violation of a basic feature of the Constitution; and that the entire Tenth Schedule is, therefore, constitutionally invalid rendering the Constitution (Fifty-Second Amendment) Act, 1985 still born and an abortive attempt to amend the constitution. In view of this conclusion, it is not necessary for us to express our concluded opinion on the other grounds of challenge to the constitutional validity of the entire Tenth Schedule urged at the hearing on the basis of alleged violation of certain other basic features of the Constitution including the right of members based on Article 105 of the Constitution.

These are our detailed reasons for the operative conclusions pronounced by us earlier on November 12, 1991.

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]]> https://bnblegal.com/landmark/kihoto-hollohan-vs-zachillhu-and-others/feed/ 0 State of Madras Vs. V.G. Row.union of India & State Interveners of Travancore https://bnblegal.com/landmark/state-of-madras-vs-v-g-row-union-of-india-state-interveners-of-travancore/ https://bnblegal.com/landmark/state-of-madras-vs-v-g-row-union-of-india-state-interveners-of-travancore/#respond Thu, 30 Jul 2020 04:30:25 +0000 https://bnblegal.com/?post_type=landmark&p=255573 IN SUPREME COURT OF INDIA STATE OF MADRAS …PETITIONER Vs. V.G. ROW.UNION OF INDIA & STATE INTERVENERS OF TRAVANCORE …RESPONDENT DATE OF JUDGMENT: 31/03/1952 BENCH: SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA CITATION: 1952 AIR 196 [1952] INSC 19; 1952 SCR 597 CITATOR INFO : RF 1954 […]

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]]> IN SUPREME COURT OF INDIA

STATE OF MADRAS …PETITIONER
Vs.
V.G. ROW.UNION OF INDIA & STATE INTERVENERS OF TRAVANCORE …RESPONDENT
DATE OF JUDGMENT: 31/03/1952

BENCH: SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA

CITATION: 1952 AIR 196 [1952] INSC 19; 1952 SCR 597

CITATOR INFO :

RF 1954 SC 92 (35) RF 1954 SC 229 (28) RF 1956 SC 479 (19) R 1956 SC 559 (4,8,9) E&R 1957 SC 896 (10) E 1958 SC 578 (169) F 1958 SC 731 (21) F 1959 SC 300 (5) R 1960 SC 468 (6) R 1960 SC1080 (40) R 1960 SC1124 (25,42,64) R 1961 SC 448 (7) R 1961 SC 705 (5,11,20) R 1961 SC 884 (24) R 1962 SC 123 (15) R 1962 SC 263 (25) R 1962 SC 305 (29) A 1962 SC 316 (35,36) R 1962 SC1371 (34,64,65,66) R 1963 SC 996 (2) R 1964 SC 416 (11) RF 1967 SC 829 (6,7) R 1968 SC 445 (14) RF 1970 SC 898 (58) R 1970 SC1157 (12) R 1970 SC1453 (15) R 1971 SC 530 (259) R 1971 SC 966 (7) R 1971 SC1667 (10,25, 27) RF 1973 SC 947 (8) RF 1973 SC1461 (594, 1547) F 1975 SC 550 (8) RF 1976 SC1207 (300) RF 1977 SC1825 (29) R 1978 SC 597 (132) F 1978 SC 771 (15,22) R 1978 SC1457 (62) R 1979 SC 25 (31) R 1980 SC 898 (70) RF 1980 SC1992 (12) R 1981 SC 873 (19, 23) RF 1981 SC1030 (16) MV 1982 SC1325 (32) R 1984 SC 882 (3) R 1984 SC1213 (8) RF 1985 SC 551 (35) R 1986 SC 515 (80) R 1986 SC1205 (17)

ACT:

Indian Criminal Law Amendment Act (XIV of 1908) as amended by Indian Criminal Law Amendment (Madras) Act, 1950, ss. 15 (2)(b), 16–Law empowering State to declare associations illegal by notification-No provision for judicial inquiry or for service of notification on association or office-bear- ers–Validity of law–Unreasonable restriction on right to form associations–Constitution of India, art. 19 (1) (c), (4).

HEADNOTE:

Section 15 (2) (b) of the Indian Criminal Law Amendment Act, 1908, as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, included within the definition of an “unlawful association” an association “which has been de- clared by the State by notification in the Official Gazette to be unlawful on the ground (to be specified in the notification) that such association (i) constitutes a danger to the public peace, or (ii)has interfered or interferes with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administration of the law, or has such interference for its object.” Section 16 of the Act as amended provided that a notification under s. 15 (2) (b) shall (i) specify the ground on which it is issued and such other particulars, if any, as may have a bearing on the 598 necessity therefor and (ii) fix a reasonable period for any officebearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification.

Under s. 16 A the Government was required after the expiry of the time fixed in the notification for making representa- tion to place the matter before an Advisory Board and to cancel the notification if the Board finds that’ there was no sufficient cause for the issue of such notification.

There was however no provision for adequate communication of the notification to the association and its members or office bearers. It was conceded that the test under s.

15(2)(b) as amended was, as it was under s. 16 as it stood before the amendment, a subjective one and the factual existence or otherwise of the grounds was not a justiciable issue and the question was whether s. 15(2)(b) was unconsti- tutional and void:

Held, (for reasons stated below) that s. 15 (2)(b) imposed restrictions on the fundamental right to form asso- ciations guaranteed by art. 19 (1) (c), which were not reasonable within the meaning of art. 19 (4) and was there- fore unconstitutional and void. The fundamental right to form associations or unions guaranteed by art. 19 (1) (c) of the Constitution has such a wide and varied scope for its exercise, and its curtailment is fraught with such potential reactions in the religious, political and economic fiel this, that the vesting of the authority in the executive Government to impose restrictions on such right, without allowing the grounds of such imposition, both in their factual and legal aspects to be duly tested in a judicial inquiry, is a strong element which should be taken into account in judging the reasonableness of restrictions im- posed on the fundamental right under art. 19(1)(c). The absence of a provision for adequate communication of the Government’s notification under s. 15(2)(b). by personal service or service by affixture to the association and its members and office-bearers was also a serious defect.

The formula of subjective satisfaction of the Government or of its officers with an advisory Board to review the materi- als on which the Government seeks to override a basic free- dom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the nar- rowest limits.

In considering the reasonableness of laws imposing restrictions on fundamental right, both the substantive and procedural aspects of the impugned law should be examined from the point of view of reasonableness and the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned and no abstract standard or general pattern of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restric- tions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time should all 599 enter into the judicial verdict. In evaluating such elu- sive factors and forming their own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authorising the imposition of the restrictions, considered them to be reasonable.

A.K. Gopalan v. The State ([1950] S.C.R. 88) and Dr.

Khare v. The State of Punjab ([1950] S.C.R. 519) distin- guished.

M. C, Setalvad, Attorney-General for India, (S. Govind Swaminathan and R. Ganapathi Iyer, with him) for the appel- lant (State of Madras).

C.R. Pattabhi Raman for the respondent.

M C. Setalvad, Attorney-General for India (G. N. Joshi.

with him) for the Union of India.

T.N. Subrahmanya lyer, (Advocate-General Travancore- Cochin (M. R. Krishna Pillai, with him) for the State of Travancore-Cochin.

1952. March 31. The Judgment of the Court was delivered by PATANJALI SASTRI C.J.–This is an appeal from an order of the High Court of Judicature at Madras adjudging section 15 (2)(b) of the Indian Criminal Law Amendment Act, 1908 (Act No. XIV of 1908) as amended by the Indian Criminal Law Amendment (Madras) Act, 1950, (hereinafter referred to as the impugned Act) as unconstitutional and void, and quashing Government Order No. 1517, Public (General) Department, dated 10th March, 1950, whereby the State Government de- clared a Society called the People’s Education Society an unlawful association.

The respondent, who was the general secretary of the Society, which was registered under the Societies’ Registra- tion Act, 1860, applied to the High Court on 78 600 10th April, 1950, under article 226 of the Constitution complaining that the impugned Act and the Order dated 10th March, 1950, purporting to be issued there-under infringed the fundamental right conferred on him by article 19 (1) (c) of the Constitution to form associations or unions and seeking appropriate reliefs.The High Court by a full bench of three Judges (Raja-mannar C.J., Satyanarayana Rao and Viswanatha Sastri JJ.) allowed the application on 14th September, 1950, and granted a certificate under article 132. The State of Madras has brought this appeal.

The Government Order referred to above runs as follows:– “WHEREAS in the opinion of the State Government, the Association known as the People’s Education Society, Madras, has for its object interference with the administration of the law and the maintenance of law and order, and consti- tutes a danger to the public peace;

NOW, therefore, His Excellency the Governor of Madras, in exercise of the powers conferred by Section 16 of the Indian Criminal Law Amendment Act, 1908 (Central Act XIV of 1908) hereby declares the said association to be an unlawful association within the meaning of the said Act.

No copy of this order was served on the respondent or any other office-bearer of the society but it was notified in the official Gazette as required by the impugned Act.

The declared objects of the Society as set out in the affidavit of the respondent are:

(a) to encourage, promote, diffuse and popularise useful knowledge in all sciences and more specially social science;

(b) to encourage, promote, diffuse and popularise polit- ical education among people;

(c) to encourage, promote and popularise the study and understanding of all social and political problems and bring about social and political reforms; and 601 (d) to promote, encourage and popularise art, literature and drama.

It was, however, stated in a counter-affidavit filed on behalf of the appellant by the Deputy Secretary to Govern- ment, Public Department, that, according to information received by the Government, the Society was actively helping the Communist Party in Madras which had been declared unlaw- ful in August 1949 by utilising its funds through its Secre- tary for carrying on propaganda on behalf of the Party, and that the declared objects of the Society were intended to camouflage its real activities.

As the Madras Amendment Act (No. XI of 1950) was passed on the 12th August, 1950, during the pendency of the peti- tion, which was taken up for hearing on the 21st August, 1950, the issues involved had to be determined in the light of the original Act as amended. In order to appreciate the issues it is necessary to refer to the relevant provisions.

Before amendment by the Madras Act, the material provisions were as follows:-“15. In this Part- (1) “association” means any combination or body of persons whether the same be known by any distinctive name or not; and (2) “unlawful association” means an association(a) which encourages or aids persons to commit acts of violence or intimidation or of which the members habitually commit such acts, or (b) which has been declared to be unlawful by the Pro- vincial Government under the powers hereby conferred.

16. If the Provincial Government is of opinion that any association interferes or has for its object interference with the administration of the law or with the maintenance of law and order, or that it constitutes a danger to the public peace, the Provincial Government may by notification in the official Gazette declare such association to be unlawful.” The amending Act substituted for clause (b) in Section 15(2) the following clause :– 602 “(b) which has been declared by the State Government by notification in the official Gazette to be unlawful on the ground (to be specified in the notification) that such association– (i) constitutes a danger to the public peace, or (ii)has interfered or interferes with the maintenance of public order or has such interference for its object, or (iii) has interfered or interferes with the administra- tion of the law, or has such interference for its object”.

For the old section 16, sections 16 and 16 A were substi- tuted as follows:

“16. (1) A notification issued under clause (b) of sub- section (2) of section 15 in respect of any association shall- (a) specify the ground on which it is issued, the rea- sons for its issue, and such other particulars, if any, as may have a bearing on the necessity therefor; and (b) fix a reasonable period for any office-bearer or member of the association or any other person interested to make a representation to the State Government in respect of the issue of the notification.

(2) Nothing in sub-section ( 1 ) shall require the State Government to disclose any facts which it considers to be against the public interest to disclose.

Under section 16 A the Government is required, after the expiry of the time fixed in the notification for making representations, to place before an Advisory Board consti- tuted by it a copy of the notification and of the represen- tations, if any, received before such expiry, and the Board is to consider the materials placed before it, after calling for such further information as it may deem necessary from the State Government or from any office-bearer or member of the association concerned or any other person, and submit its report to the Government. If it is found by the Board that there is no sufficient cause for the issue of the notification in respect of the association 603 concerned, the Government is required to cancel the notifi- cation.

There is no amendment of section 17 which prescribes penalties by way of imprisonment or fine or both for member- ship or management of an unlawful association and for taking part in meetings of such association or making, receiving or soliciting contributions for purposes thereof. Section 17 A, which confers power on the Government to notify and take possession of places used for the purposes of an unlawful association, was amended by the addition of subclauses 2(a) and 2(b) providing for a remedy, where such power was exer- cised, by way of application, within thirty days of the notification in the official Gazette, to the Chief Judge of the Small Cause Court or the District Judge according as the place notified is situated in the Presidency Town or out- side, for “a declaration that the place has not been used for the purposes of any unlawful association”. If such declaration is made, the Government is to cancel the notifi- cation in respect of the place. Section 17B empowers the officer taking possession of a notified place to forfeit movable property found therein if, in his opinion, such property” is, or may be used for the purposes of the unlaw- ful association” after following the procedure indicated.

Section 17E similarly empowers the Government to forfeit funds of an unlawful association “if it is satisfied after such enquiry as it may think fit that such funds are being used or intended to be used for the purposes of an unlawful association”. The procedure to be followed in such cases is also prescribed. By section 17F jurisdiction of civil courts, save as expressly provided, is barred in respect of proceedings taken under sections 17 A to 17E.

By section 6 of the amending Act notifications already issued and not cancelled before the amendment are to have effect as if they had been issued under section 15 (2) (b) as amended, and it is provided in such cases a supplementary notification should also be issued as required in section 16 (1)( a) and (b) as amended and thereafter the procedure provided by 604 the new section 16-A should be followed. It was under this provision that the validity of the notification issued on the 10th March, 1950, under old section 16 fell to be con- sidered in the light of the provisions of the amended Act when the petition came up for hearing in the High Court on 21st August, 1950.

It will be seen that while old section 16 expressly conferred on the Provincial Government power to declare associations unlawful if, in its opinion, there existed certain specified grounds in relation to them, those grounds are now incorporated in section 15(2)(b) as amended, and the reference to the “opinion” of the Government is dropped.

This led to some discussion before us as to whether or not the grounds referred to in section 15 (2) (b) as amended are justiciable issues. if the factual existence of those grounds could be made the subject of inquiry in a court of law, the restrictions sought to be imposed on the right of association would not be open to exception, but then the Government would apparently have no use for section 15 (2) (b). For, it was strenuously contended on its behalf by the Attorney-General that the incorporation of these grounds in a definition clause, which made a declaration by Govenment the test of unlawfulness, rendered the insertion of the words “in its opinion” unnecessary and, indeed, inappropri- ate, and that the omission of those words could not lead to any inference that the grounds on which the declaration was to be based were intended to be any more justiciable than under the old section 16; more especially as the “opinion” or the “satisfaction” of the Government or of its officers is still the determining factor in notifying a place under section 17 A (1) and in forfeiting the movables found there- in under section 17B (1) or the funds of an unlawful associ- ation under section 17E (1). The provision for an inquiry as to the existence or otherwise of such grounds before an Advisory Board and for cancellation of the notification in case the Board found there was no sufficient cause for declaring the association as unlawful also pointed, it was urged, to the same conclusion. The contention is not 605 without force, and the position was not contested for the respondent. It may, accordingly, be taken that the test under section 15 (2) (b) is, as it was under the old section 16, a subjective one and the factual existence or otherwise of the grounds is not a justiciable issue.

It is on this basis, then, that the question has to be determined as to whether section 15 (2)(b)as amended falls within the limits of constitutionally permissible legisla- tive abridgement of the fundamental right conferred on the citizen by article 19 (1) (c). Those limits are defined in clause (4) of the same article.

“(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any imposing, in the interests of public order or morality, reasonable restrictions on the exercise of the right con- ferred by the said sub-clause.” It was not disputed that the restrictions in question were imposed “in the interests of public order”. But, are they “reasonable” restrictions within the meaning of article 19 (4)? Before proceeding to consider this question, we think it right to point out, what is sometimes overlooked, that our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike as in America where the Supreme Court has assumed extensive powers of reviewing legislative acts undercover of the widely interpreted “due process” clause in the Fifth and Fourteenth Amendments. If, then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of a duty plainly laid upon them by the Constitution. This is especially true as regards the “fundamental rights “, as to which this Court has been assigned the role of a sentinel on the qui vive.

While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine 606 finally the constitutionality of an impugned statute. We have ventured on these obvious remarks because it appears to have been suggested in some quarters that the courts in the new set up are out to seek clashes with the legislatures in the country.

The learned Judges of the High Court unanimously held that the restrictions under section 15 (2) (b) were not reasonable on the ground of-(1)the inadequacy of the publi- cation of the notification, (2) the omission to fix a time- limit for the Government sending the papers to the Advisory Board or for the latter to make its report, no safeguards being provided against the Government enforcing the penal- ties in the meantime, and (3) the denial to the aggrieved person of the right to appear either in person or by pleader before the Advisory Board to make good his representation.

In addition to these grounds one of the learned Judges (Satyanarayana Rao J.) held that the impugned Act offended against article 14 of the Constitution in that there was no reasonable basis for the differentiation in treatment be- tween the two classes of unlawful associations mentioned in section 15 (2) (a) and (b). The other learned Judges did not, however, agree with this view. Viswanatha Sastri J.

further held that the provisions for forfeiture of property contained in the impugned Act were void as they had no reasonable relation to the maintenance of public order. The other two Judges expressed no opinion on this point. While agreeing with the conclusion of the learned Judges that section 15 (2) (b) is unconstitutional and void, we are of opinion that the decision can be rested on a broader and more fundamental ground.

This Court had occasion in Dr. Khare’s ease (1) to define the scope of the judicial review under clause (5) of article 19 where the phrase “imposing reasonable restric- tions on the exercise of the right” also occurs, and four out of the five Judges participating in the decision ex- pressed the view (the other Judge leaving the question open) that both the substantive and the procedural aspects of the impugned restrictive (1) [1950] INSC 19; [1950] S.C.R. 519, 607 law should be examined from the point of view of reasonable- ness; that is to say, the Court should consider not only factors such as the duration and the extent of the re- strictions, but also the circumstances under which and the manner in which their imposition has been authorised. It is important in this context to bear in mind that the test of reasonableness, whereever prescribed, should be applied to each individual statute impugned, and no abstract standard.

or general pattern, of reasonableness can be laid down as applicable to all cases. The nature of the right alleged to have been infringed, the underlying purpose of the restric- tions imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and forming their own conception of what is reasonable, in all the circumstances of a given case. it is inevitable that the social philosophy and the scale of values of the judges participating in the decision should play an important part, and the limit to their interference with legislative judg- ment in such cases can only be dictated by their sense of responsibility and self-restraint and the sobering reflec- tion that the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives of the people have, in authoris- ing the imposition of’ the restrictions, considered them to be reasonable.

Giving due weight to all the considerations indicated above, we have come to the conclusion that section 15 (2) (b) cannot be upheld as falling within the limits of autho- rised restrictions on the right conferred by article 19 (1) (c). The right to form associations or unions has such wide and varied scope for its exercise, and its curtail- ment is fraught with such potential reactions in the reli- gious political and economic fields, that the vesting of authority in the executive government to impose restrictions on such right, without allowing the grounds of such imposi- tion, both in their factual and legal aspects, to be 608 duly tested in a judicial inquiry, is a strong element which, in our opinion, must be taken into account in judging the reasonableness of the restrictions imposed by section 15 (2) (b) on the exercise of the fundamental right under article 19 (1) (c); for, no summary and what is bound to be a largely one-sided review by an Advisory Board, even where its verdict is binding on the executive government, can be a substitute for a judicial enquiry. The formula of subjective satisfaction of the Government or of its officers, with an Advisory Board thrown in to review the materials on which the Government seeks to override a basic freedom guaranteed to the citizen, may be viewed as reasonable only in very exceptional circumstances and within the narrowest limits, and cannot receive judicial approval as a general pattern of reasonable restrictions on fundamental rights. In the case of preventive detention, no doubt, this Court upheld in Gopalan’s case(1) deprivation of personal liberty by such means, but that was because the Constitution itself sanc- tions laws providing for preventive detention, as to which no question of reasonableness could arise in view of the language of article 21. As pointed out by Kania C.J. at page 121, quoting Lord Finlay in Rex v. Halliday(2), “the court was the least appropriate tribunal to investigate into circumstances of suspicion on which such anticipatory action must be largely based”.

The Attorney-General placed strong reliance on the decision in Dr. Khare’s ease(3) where the subjective satis- faction of the Government regarding the necessity for the externment of a person, coupled with a reference of the matter to an Advisory Board whose opinion, however, had no binding force, was considered by a majority to be “reasona- ble” procedure for restricting the right to move freely conferred by article 19 (1)(b). The Attorney-General claimed that the reasoning of that decision applied a fortiori to the present ease, as the impugned Act provided that the Advisory Board’s report was binding on the Government. We cannot agree. We consider that that ease (1) [1950] INSC 14; [1950] S.C.R. 88. (2) [1917] UKHL 1; [1917] A.C. 260, 269. (3) [1950] INSC 19; [1950] S.C.R. 519, 609 is distinguishable in several essential particulars. For one thing, externment of individuals, like preventive detention, is largely precautionary and based on suspicion. In fact, section 4 (1) of the East Punjab Public Safety Act, which was the subject of consideration in Dr. Khare’s case(1), authorised both preventive detention and externment for the same purpose and on the same ground namely, with a view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary, etc.” Besides, both involve an element of emer- gency requiring prompt steps to be taken to prevent appre- hended danger to public tranquillity, and authority has to be vested in the Government and its officers to take appro- priate action on their own responsibility. These features are however, absent in the grounds on which the Government is authorised,under section 15 (2) (b), to declare associa- tions unlawful. These grounds, taken by themselves, are factualand not anticipatory or based on suspicion. An asso- ciation is allowed to be declared unlawful because it “constitutes” a danger or “has interfered or interferes” with the maintenance of public order or “has such interfer- ence for its object” etc. The factual existence of these grounds is amenable to objective determination by the court, quite as much as the grounds mentioned in clause (a) of sub-section (2) of section 15, as to which the Attorney- General conceded that it would be incumbent on the Govern- ment to establish, as a fact, that the association, which it alleged to be unlawful, “encouraged” or “aided” persons to commit acts of violence, etc. We are unable to discover any reasonableness in the claim of the Government in seek- ing, by its mere declaration, to shut out judicial enquiry into the underlying facts under clause (b). Secondly, the East Punjab Public Safety Act was a temporary enactment which was to be in force only for a year, and any order made there-under was to expire at the termination of the Act.

What may be regarded as a reasonable restriction (1) [1950] INSC 19; [1950] S.C.R. 519.

610 imposed under such a statute will not necessarily be consid- ered reasonable under the impugned Act, as the latter is a permanent measure, and any declaration made thereunder would continue in operation for an indefinite period until the Government should think fit to cancel it. Thirdly, while, no doubt, the Advisory Board procedure under the impugned Act provides a better safeguard than the one under the East Punjab Public Safety Act, under which the report of such body is not binding on the Government, the impugned Act suffers from a far more serious defect in the absence of any provision for adequate communication of the Government’s notification under section 15 (2) (b) to the association and its members or office-bearers. The Government has to fix a reasonable period in the notification for the aggrieved person to make a representation to the Government. But, as stated already, no personal service on any office-bearer or member of the association concerned or service by affixture at the office, if any, of such association is prescribed.

Nor is any other mode of proclamation of the notification at the place where such association carries on its activities provided for Publication in the official Gazette, whose publicity value is by no means great, may not reach the members of the association declared unlawful, and if the time fixed expired before they knew of such declaration their right of making a representation, which is the only opportunity of presenting their case, would be 1oat. Yet, the consequences to the members which the notification involves are most serious, for, their very membership there- after is made an offence under section 17.

There was some discussion at the bar as to whether want of knowledge of the notification would be a valid defence in a prosecution under that section. But it is not necessary to enter upon that question, as the very risk of prosecution involved in declaring an association unlawful with penal consequences, without providing for adequate communication of such declaration to the association and its members or office bearers, may well be considered sufficient to render the imposition of 611 restrictions by such means unreasonable. In this respect an externment order stands on a different footing, as provi- sion is made for personal or other adequate mode of service on the individual concerned, who is thus assured of an opportunity of putting forward his case. For all these reasons the decision in Dr. Khare’s case(1) is distinguisha- ble and cannot rule the present case as claimed by the learned AttorneyGeneral. Indeed, as we have observed earli- er, a decision dealing with the validity of restrictions imposed on one of the rights conferred by article 19 (1) cannot have much value as a precedent for adjudging the validity of the restrictions imposed on another right, even when the constitutional criterion is the same, namely, reasonableness, as the conclusion must depend on the cumula- tive effect of the varying facts and circumstances of each case.

Having given the case our best and most anxious consid- eration, we have arrived at the conclusion, in agreement with the learned Judges of the High Court, that, having regard to the peculiar features to which reference has been made, section 15 (2)(b) of the Criminal Law Amendment Act, 1908, as amended by the Criminal Law Amendment (Madras) Act, 1950, falls outside the scope of authorised restrictions under clause (4) of article 19 and is, therefore, unconsti- tutional and void.

The appeal fails and is accordingly dismissed with costs.

Appeal dismissed.

Agent for the appellant: P.A. Mehta.

Agent for the respondent: S. Subrahmanyan.

Agent for the Union of India and the State of Travan- core-Cochin: P.A. Mehta.

(1) [1950] INSC 19; [1950] S.C.R. 519

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]]> https://bnblegal.com/landmark/state-of-madras-vs-v-g-row-union-of-india-state-interveners-of-travancore/feed/ 0 Dr. N.B. Khare Vs. The State of Delhi https://bnblegal.com/landmark/dr-n-b-khare-vs-the-state-of-delhi/ https://bnblegal.com/landmark/dr-n-b-khare-vs-the-state-of-delhi/#respond Thu, 30 Jul 2020 04:26:48 +0000 https://bnblegal.com/?post_type=landmark&p=255569 IN SUPREME COURT OF INDIA DR. N.B. KHARE …PETITIONER Vs. THE STATE OF DELHI …RESPONDENT DATE OF JUDGMENT: 26/05/1950 BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND MUKHERJEA, B.K. CITATION: 1950 AIR 211 [1950] INSC 19; 1950 SCR 519 CITATOR INFO : R 1952 SC 75 (15) D 1952 […]

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]]> IN SUPREME COURT OF INDIA

DR. N.B. KHARE …PETITIONER
Vs.
THE STATE OF DELHI …RESPONDENT

DATE OF JUDGMENT: 26/05/1950

BENCH: KANIA, HIRALAL J. (CJ) FAZAL ALI, SAIYID SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND MUKHERJEA, B.K.

CITATION: 1950 AIR 211 [1950] INSC 19; 1950 SCR 519

CITATOR INFO :

R 1952 SC 75 (15) D 1952 SC 196 (15,17,18) R 1956 SC 559 (8) R 1957 SC 510 (15) RF 1957 SC 896 (11,13) E 1958 SC 578 (169) R 1959 SC 459 (48) R 1962 SC1371 (35) RF 1964 SC1279 (6) R 1968 SC 445 (14) R 1971 SC1667 (27) RF 1973 SC1461 (242,451) R 1974 SC 175 (14) R 1974 SC1044 (24) R 1975 SC2299 (485) R 1978 SC 851 (24) RF 1979 SC 25 (31) R 1980 SC1382 (81)

ACT:

Constitution of India, Art. 19, cls. (1) (d) and (5) Fundamental rights–Freedom of movement–Law imposing re- strictions-Validity–Reasonableness trictions–Scope of enquiry–East Punjab Public Safety Act, 1949, s. 4 (1)(c), (3), (6)–Provisions empowering Provincial Government or District Magistrate to extern persons making satisfaction of externing authority final, authorising externment for indef- inite period, and directing that authority “may communicate” grounds of externment–Whether reasonable–Construction and Validity of Act.

67 520

HEADNOTE:

Section 4, sub-s. (1) (c), of the East Punjab Public Safety Act of 1949 which was passed on the 29th March, 1949, and was to be in force until the 14th August, 1951, provided that “The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with view to preventing him from acting in any manner prejudicial to the public safety or the maintenance of public order it is necessary to do so, may, by order in writing, give a direction that such person shall remove himself from, and shall not return to, any area that may be specified in the order.” Sub-section (3) of s. 4 provided that “an order under sub-s. (1) made by the District Magistrate shall not, unless the Provincial Goverment by special order otherwise directs, remain in force for more than three months from the making thereof,” and sub-s. (6) laid down that “when an order has been made in respect of any person under any of the clauses under s. 4, sub-s. (1) or sub-s. (9.), the grounds of it may be communicated to him by the authority making the order, and in any case when the order is to be in force for more then three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal constituted under s. 3, sub-s. (4).” The petitioner, against whom an order under (1) (c) of the Act was passed applied to the Court under Art. 39, of the Constitution for a writ of certiorari contending that the order was illegal inasmuch as the provisions of the above mentioned Act under which the order was made infringed the fundamental right to move freely throughout the territo- ry of India which was guaranteed by Art. 19 (1) (d) of the Constitution and were accordingly void under Art. 13 (1) of the Constitution:

Held, per KANIA C.J., FAZL ALl and PATANJALI SASTRI, J3.

(MAHAJAN and MUKHERJEA, JJ. dissenting)–(i) that there was nothing unreasonable in the provision contained in sub-s.

(1) (c) empowering the Provincial Government or the Dis- trict Magistrate to make an externment order, and making their satisfaction as to the necessity of making such an order final, or in the provisions contained in sub-s. (3) of s. 4 that an order of a District Magistrate may remain in force for three months and that the Provincial Government may make an order, or keep alive an order made by a District Magistrate, for a period exceeding three months without fixing any time limit; (ii) with regard to sub-s. (6), the word “may” in the expression “may communicate” must, in the context, be read as meaning “shall” and under the sub-sec- tion it is obligatory on the authority making an order to communicate the grounds to the externee;.(iii) the restric- tions imposed by the above-mentioned provisions of the Act upon the fundamental right guaranteed by Art. (19) (1) (d) were not, therefore, unreasonable restrictions within the meaning 01 Art. 19 (5) and the provisions of the Act were not void under Art. 13 (1), and the order of externment was not illegal.

Per MUKHERJEA J. (MAHAJAN J. concurring)–Though certain authorities can be invested with power to make 521 initial orders on their own satisfaction in cases of this description, and s. 4 (1) (c) of the East punjab Public Safety Act cannot be pronounced to be unreasonable simply because an order I could be passed by the Provincial Gov- ernment or the District Magistrate on their own personal satisfaction and not on materials, which satisfy certain objective tests, yet, the position would be different if the order thus made is allowed to continue for any indefinite period of time without giving the aggrieved person an oppor- tunity to say what he has got to say against the order; and inasmuch as sub-s. (3) of s. 4 prescribes no limit to the period of time during which an externment order would remain in force if it is made by the Provincial Government, and the Provincial Government is also given power to keep an order made by a District Magistrate in force for an indefinite period, the provisions of sub-s. (3) are manifestly unrea- sonable. The provisions of sub-s. (6)of s. 4 are also unreasonable as they make it entirely optional with the authorities to communicate to the person affected, the grounds upon which the order is made. Neither sub-s. (3) nor sub-s. (6) of s. 4 can, therefore, be said to have imposed restrictions which are reasonable in the interests of the general public within the meaning of Art. 19 (5) and these provisions of the Act were consequently void and inoperative under Art. 13 (1)of the Constitution, and the externment order was illegal.

Held also, per KANIA C.J., FAZL ALI, MAHAJAN and MUKH- ERJEA JJ.–Whether the restrictions imposed by a legislative enactment upon the fundamental right guaranteed by Art. 19 (1) (d) are reasonable within the meaning of Art. 19 (5) of the Constitution would depend as much on the procedural portion of the law as the substantive part of it] and in considering whether such restrictions are reasonable the Court is not therefore bound to confine itself to an exami- nation of the reasonableness of the restrictions in the abstract with reference to their duration and territorial extent. The Court can also consider the reasonableness of the procedural part of the law and the circumstances under which, and the manner in which, the restrictions have been imposed. [PATANJALI SASLUP, I J. did not express any opin- ion on this point.]

ORIGINAL JURISDICTION: Petition No. XXXVII of 1950.

Application under article 32 of the Constitution of India for a writ of certiorari and prohibition. The facts are set out in the judgment.

B. Banerji for the petitioner.

M.C. Setalvad, Attorney-General for India (Gyan Chand, with him) for the opposite party.

522 1950. May 26. The following judgments were delivered:– KANIA C.J.–This is an application for a writ of ‘certiorari and prohibition under article 32 of the Constitution of India.

The petitioner who is the President of the All India Hindu Mahasabha since December, 1949, was served with an order of externment dated the gist of March, 1950, that night. By that order he is directed by the District Magis- trate, Delhi, not to remain in the Delhi District, and immediately to remove himself from the Delhi District and not to return to the District. The order was to continue in force for three months. By another order of the Madhya Bharat Government he was directed to reside in Nagpur. That order has been recently cancelled. The petitioner disputes the validity of the first order on the ground that the East Punjab Public Safety Act, 1949, under which the order was made, is an infringement of his fundamental right given under article 19 (1) (d) of the Constitution of India. He further contends that the grounds of the order served on him are vague, insufficient and incomplete. According to him the object of the externment order passed by the District Magistrate, Delhi, was to suppress political opposition to the policy of the Government in respect of Pakistan and the Muslim League. It is alleged that because the petitioner and the Hindu Mahasabha are against the Government policy of appeasement this order is served on him. It is therefore mala fide and illegal. In support of his contention about the invalidity of the East Punjab Public Safety Act and its provisions as regards externment, counsel for the petitioner relied on the recent unreported judgments of the Patna High Court in Miscellaneous Judicial Case No. 29 of 1950, Brij- nandan v. The State of Bihar, and of the High Court of Bombay in Criminal Application No. 114 of 1950, re Jai- singhbhai Ishwarlal Modi.

It is necessary first to ascertain the true meaning of article 19 (1) (d) read with clause (5) of the same article.

There is no doubt that by the order of extern- 523 ment the right of the petitioner to freedom of movement throughout the territory of India is abridged. The only question is whether the limits of permissible legislation under clause (5) are exceeded. That clause provides as follows:–“19. (5) Nothing in subclauses (d), (e) and (f) of the said clause shall affect the operation of any exist- ing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub- clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.” It is clear that the clause permits imposition of reasonable restrictions on the exercise of the right conferred by sub- clause (d)in the interests of the general public. The rest of the provision of clause (5) is not material and neither side relies on it. Two interpretations of the clause are put before the Court. It is argued that grammatically understood the only question before the Court is whether the impugned legislation imposes reasonable restrictions on the exercise of the right. To put it in other words, the only justiciable issue to be decided by the Court is whether the restrictions imposed by the legislation on the exercise of the right are reasonable. If those restrictions on the exercise of the right are reasonable, the Court has not to consider whether the law imposing the restrictions is rea- sonable. The other interpretation is that while the Consti- tution permits a law laying down reasonable restrictions on the exercise of the rights mentioned in sub-clause 19 (1) (d), the reasonableness has to be of the law also. It is submitted that in deciding whether the restrictions, on the exercise of the right are reasonable, the Court has to decide not only on the extent and nature of the restric- tions on the exercise of the right but also as to whether the conditions under which the right is restricted are reasonable. The majority judgments of the Patna and the Bombay High Courts, although the impugned Acts of the State Legislatures before them were materially different on cer- tain important points, have given clause (5) of article 19 the latter meaning.

524 In my opinion, clause (5) must be given its full mean- ing. The question which the Court has to consider is wheth- er the restrictions put by the impugned legislation on the exercise of the right are reasonable or not. The question whether the provisions of the Act provide reasonable safe- guards against the abuse of the power given to the executive authority tO administer the law is not relevant for the true interpretation of the ‘clause. The Court, on either inter- pretation, will be entitled to consider whether the re- strictions on the right to move throughout India, i.e,, both as regards the territory and the duration, are reasonable or not. The law providing reasonable restrictions on the exercise of the right conferred by article 19 may contain substantive provisions as well as procedural provisions.

While the reasonableness of the restrictions has to be considered with regard to the exercise of the right, it does not necessarily exclude from the consideration of the Court the question of reasonableness of the procedural part of the law. It is obvious that if the law prescribes five years externment or ten years externment, the question whether such period of externment is reasonable, being the substan- tive part, is necessarily for the consideration of the Court under clause (5). Similarly, if the law provides the proce- dure under which the exercise of the right may be restrict- ed, the same is also for the consideration of the Court, as it has to determine if the exercise of the right has been reasonably restricted. I do not think by this interpretation the scope and ambit of the word “reasonable” as applied to restrictions on the exercise of the right, is in any way unjustifiably enlarged. it seems that the narrow construc- tion sought to be put on the expression, to restrict the Court’s power to consider only the substantive law on the point, is not correct. In my opinion this aspect of the construction of article 19 (5) has escaped the minority judgment in the two matters mentioned above. I am not con- cerned with the conclusions of the two Courts about the invalidity of the provisions of the Acts they were asked to consider. To the extent they help in the interpretation of article 19 (5) only they are helpful.

525 The next question is whether the impugned Act contains reasonable restrictions on the exercise of the right given under article 19 (1)(d)or (e). It was argued on behalf of the petitioner that under section 4 the power to make the order of externment was given to the Provincial Government or the District Magistrate, whose satisfaction was final.

That decision was not open to review by the Court. On that ground it was contended that there was an unreasonable restriction on the exercise of the citizen’s right. In my opinion, this argument is unsound. This is not legislative delegation. The desirability of passing an individual order of externment against a citizen has to be left to an offi- cer. In the Act such a provision cannot be made. The satisfaction of the officer thus does not impose an unrea- sonable restriction on the exercise of the citizen’s right.

So far as the Bombay High Court is concerned Chagla C.J.

appears to have decided this point against the contention of the petitioner.

It was next urged that under section 4 (3) the order made by the District Magistrate shall not, unless the Pro- vincial Government by special order otherwise direct, remain in force for more than three months. It was argued that the period of three months itself was unreasonable as the ex- ternee had no remedy during that time. It was contended that when the Provincial Government directed the renewal of the order no limit of time was prescribed by the legislature for the duration of the order. The order therefore can be in operation for an indefinite period. This was argued to be an unreasonable restriction on the exercise of a citi- zen’s right. In this connection it may be pointed out that in respect of preventive detention, which is a more severe restriction on the right of the citizen, the Constitution itself under article 22 (4) to (7) permits preventive deten- tion for three months without any remedy. The period of three months therefore prima facie does not appear unreason- able. Under the proviso to section 4 (5) the Provincial Government is not permitted to direct the exclusion or removal from the Province of a person ordinarily residing in the Province, and similarly 526 the District Magistrate is not permitted to order the exclu- sion or removal of a person ordinarily resident in his district from that district. This is a great safeguard provided under the East Punjab Public Safety Act. The further extension of the externment order beyond three months may be for an indefinite period, but in that connec- tion the fact that the whole Act is to remain in force only up to the 14th August, 1951, cannot be overlooked. More- over, this whole argument is based on the assumption that the Provincial Government when making the order will not perform its duty and may abuse the provisions of the sec- tion. In my opinion, it is improper to start with such an assumption and decide the legality of an Act on that basis.

Abuse of the power given by a law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension. In my opinion, therefore, this contention of the petitioner cannot be accepted.

It. was next argued that there is no provision in the Act for furnishing grounds of externment to the citizen.

Section 4 (6) provides that when an externment order has been made its grounds may be communicated to the externee by the authority making the order and in any case when the order is to be enforced for more than three months he shall have a right of making a representation which shall be referred to the advisory tribunal constituted under section 3 (4). While the word “may” ordinarily conveys the idea of a discretion and not compulsion, reading it with the last part of the clause it seems that when an externment order has to be enforced for more than three months an absolute right is given to the cxternee to make a representation. He cannot make a representation unless he has been furnished grounds for the order. In no other part of the Act a right to obtain the grouuds for the order in such a case is given to him. Therefore, that right has to be read as given under the first part of section 4 (6). That can be done only by reading the word “may” for that purpose as having the mean- ing of “shall” If the word “may” has to be so read for that purpose, it appears to be against the well-recognised canons of construction to 527 read the same “may” as having a different meaning when the order is to be in force for less than three months. I do not think in putting the meaning of “shall” on “may” in the clause, I am unduly straining the language used in the clause. So read this argument must fail.

It was next argued that there is no provision in the Act showing what the advisory board has to do when it receives a representation. A reference to the advisory board neces- sarily implies a consideration of the case by such board.

The absence of an express statement to that effect in the impugned Act does not invalidate the Act.

It was finally contended on behalf of the petitioner that the grounds for the externment order supplied to him are vague, insufficient and incomplete. The grounds are stated as follows :– “Your activities generally and particularly since the recent trouble in East and West Bengal have been of a communal nature tending to excite hatred between communities and whereas in the present composition of the population of Delhi and the recent communal disturbances of Delhi feelings are roused between the majority and minority communities, your presence and activities in Delhi are likely to prove prejudicial to the maintenance of law and order, it is considered necessary to order you to leave Delhi.” These grounds cannot be described as vague, insufficient or incomplete. It is expressly stated that the activities of the petitioner, who is the President of the Hindu Maha- sabha, since the recent disturbances between two communities in the East and West Bengal have particularly been of a communal nature which excites hatred between the communi- ties. It is further stated that having regard to the recent disturbance in Delhi, the population of which is composed of both these communities, the excitement of such,hatred is likely to be dangerous to the peace and maintenance of law and order. Apart from being vague, I think that these grounds are specific and if honestly be- lieved can support the order. The argument that the order 528 was served to stifle opposition to the Government policy of appeasement has little bearing because the District Magis- trate of Delhi is not concerned with the policy of the Government of appeasement or otherwise. The order is made because the activities of the petitioner are likely to prove prejudicial to the maintenance of law and order and the grounds specified have a direct bearing on that conclusion of the District Magistrate. I therefore think that this contention of the petitioner must be rejected.

The result is that the petition fails and is dismissed.

FAZL ALI J.–I agree.

PATANJALI SASTRI J.–I agree that this application must fail. As I share the views expressed by my Lord in.the judgment just delivered by him on the reasonableness of the restrictions imposed by the impugned legislation whichever construction of article 19 (5) of the Constitution is adopt- ed, I consider it unnecessary to express any opinion on the true scope of the judicial review permitted under that article, and I hold myself free to deal with that point when it becomes necessary to do so.

MAHAJAN J.–I concur in the judgment which my brother Mukh- erjea is delivering and for the reasons given by him I allow the petition and quash the order of externment.

MUKHERJEA J.–This is an application under article 32 of the Constitution, praying for quashing of an externment order made by the District Magistrate of Delhi, against the petitioner Dr. N.B. Khare, on 31st March, 1950, by which the latter was directed to remove himself immediately from the Delhi District and not to return to that District so long as the order remained in force. The order is for three months at present. Complaint was also made in the petition in respect of another and a subsequent order passed by the Government of Madhya Bharat which was served on the peti- tioner on his way to Nagpur and which 529 directed him to reside within the limits of the Nagpur Municipality and not to leave that area without the permis- sion of the District Magistrate of that place. This order of the Government of Madhya Bharat, we are told, has since been withdrawn and we are not concerned with that order or the Act under which it was passed in the present proceeding.

The substantial contention raised on behalf of the petitioner is that the particular provision of the East Punjab Public Safety Act, 1949, under which the District Magistrate of Delhi purported to make the externment order, became void and ceased to be operative after the new Consti- tution came into force, by reason of these provisions being inconsistent with the fundamental rights guaranteed under article 19 (1) (d) of the Constitution read with clause (5) of the same article. The argument is that any order passed under such void legislative provisions must necessarily be void and of no effect in law.

In order to appreciate the merits of this contention, it may be convenient to advert to the material provisions of the East Punjab Public Safety Act which are alleged to have become void as well as to the articles of the Constitution, upon which reliance has been placed by the learned counsel for the petitioner.

The East Punjab Public Safety Act came into force on 29th March, 1949, and its object, as stated in the preamble, is to provide for special measures to ensure public safety and maintenance of public order. Section 4 (1) of the Act provides:

“The Provincial Government or the District Magistrate, if satisfied with respect to any particular person that with a view to preventing him from acting in any manner prejudi- cial to the public safety or the maintenance of public order it is necessary so to do, may, by order in writing, give anyone or more of the following directions, namely that such person ……………………………………………

(c) shall remove himself from, and shall not return to, any area that may be specified in the order.” , 530 Sub-section (3) of the section lays down that “An order under sub-section (1) made by the District Magistrate shall not, unless the Provincial Government by special order otherwise directs, remain in force for more than three months from the making thereof.” The contention of the petitioner is that the restrictive provisions mentioned above, under which a person could be removed from a particular area or prohibited from returning to it are inconsistent with the fundamental right guaranteed by article 19 (1) (d) of the Constitution under which all citizens shall have the right “to move freely throughout the territory of India.” This right indeed is not absolute and the extent to which it could be curtailed by legislation is laid down in clause.(5)of article 19 which runs as follows:

“Nothing in sub-clauses (d), (e) and (f) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.” Thus the primary question which requires consideration is, whether the impugned legislation which apparently seems to be in conflict with the fundamental right enunciated in article 19 (1) (d) of the Consitution is protected by clause (5) of the article, under which a law would be valid if it imposes reasonable restrictions on the exercise of the right in the interests of the general public. It is not disputed that the question of reasonableness is a justiciable matter which has to be determined by the Court. If the Courts ‘hold the restrictions imposed by the law to be reasonable, the petitioner would certainly have no remedy. If, on the other hand, they are held to be unreasonable, article 13 (1)of the Constitution imposes a duty upon the Court to pronounce the law to be invalid to the extent that it is inconsistent with the fundamental rights guaranteed under Part III of the Constitution.

531 It has been urged, though somewhat faintly, by the learned Attorney-General that the right of free movement throughout the Indian territory as enunciated in article 19 (1) (d) of the Constitution contemplates nothing else but absence of inter-State restrictions, which might prevent citizens of the Indian Union from moving from one State to another. A law which does not impose barriers of this kind, it is said, cannot be inconsistent with the fundamental right secured by this clause. Such a restricted interpreta- tion is, in my opinion, not at all warranted by the language of the sub-clause. What article 19 (1) (d) of the Constitu- tion guarantees is the free right of all citizens to go wherever they like in the Indian territory without any kind of restriction whatsoever. They can move not merely from one State to another but from one place to another within the same State and what the Constitution lays stress upon is that the entire Indian territory is one unit so far as the citizens are concerned. Clause (c) of section 4 (1) of the East Punjab Public Safety Act, 1949, authorises the Provin- cial Government or the District Magistrate to direct any person to remove himself from any area and prohibit him from entering the same. On the face of it such provision repre- sents an interference with the. fundamental right guaran- teed by article 19 (1) (d) of the Constitution. The contro- versy, therefore, narrows down to this, whether the impugned legislation is saved by reason of its being within the permissible limits prescribed by clause (5) of article 19.

With regard to clause (5), the learned AttorneyGeneral points out at the outset that the word “reasonable” occur- ring in the clause qualifies “restrictions” and not “law'”.

It is argued that in applying the clause, all that we have to see is whether the restrictions that are imposed upon the exercise of the right by law are reasonable or not and we have not to enquire into the reasonableness or otherwise of the law itself. The reasonableness of the restrictions can be judged,’ according to the learned Attorney-General, from the nature of the restrictions themselves and not from the manner in which or the authorities by which they are 532 imposed. The question whether the operation of the law produces hardship in individual cases is also a matter which is quite irrelevant to our enquiry.

I do agree that in clause (5) the adjective ‘reasonable’ is predicated of the restrictions that are imposed by law and not of the law itself; but that does not mean that in deciding the reasonableness or otherwise of the restric- tions, we have to confine ourselves to an examination of the restrictions in the abstract with reference merely to their duration or territorial extent, and that it is beyond our province to look up to the circumstances under which or the manner in which the restrictions have been imposed. It is not possible to formulate an effective test which would enable us to pronounce any particular restriction to be reasonable or unreasonable per se. All the attendant cir- cumstances must be taken into consideration and one cannot dissociate the actual contents of the restrictions from the manner of their imposition or the mode of putting them into practice. The question of reasonableness of the restric- tions imposed by a law may arise as much from the substan- tive part of the law as from its procedural portion. Thus, although I agree with the learned Attorney-General that the word “reasonable” in clause (5) of article 19 goes with “restrictions” and not with “law,” I cannot accept his suggestion as regards the proper way of determining the reasonableness of the restrictions which a legislation might impose upon the exercise of the right of free movement.

Coming now to the provisions of the impugned Act, Mr. Baner- jee’s main contention is that section 4 (1) (c)of the East Punjab Public Safety Act, which provides for passing of orders removing a person from a particular area, on the satisfaction of the Provincial Government or the District Magistrate, cannot be a reasonable piece of legislation inasmuch as the only pre-requisite for imposition of the restrictions is the personal satisfaction of certain indi- viduals or authorities, the propriety or reasonableness of which cannot be tested by the application of any external rule or standard. It is said that any law which places the liberty 533 of a subject at the mercy of an executive officer, however high placed he might be and whose action cannot be reviewed by a judicial tribunal, is an arbitrary and not a reasonable exercise of legislative powers. The contention requires careful examination.

It is not disputed that under clause (5) of article 19, the reasonableness of a challenged legislation has to be determined by a Court and the Court decides such matters by applying some objective standard which is said to be the standard of an average prudent man. Judged by such standard which is sometimes described as an external yard-stick, the vesting of authority in particular officers to take prompt action under emergent circumstances, entirely on their own responsibility or personal satisfaction, is not necessarily unreasonable. One has to take into account the whole scheme of the legislation and the circumstances under which the restrictive orders could be made. The object of the East Punjab Public Safety Act is to pro vide for special measures to ensure public safety and maintenance of public order.

Under section 4 (1) (c) of the Act, the Provincial Govern- ment or the District Magistrate may make an order directing the removal of a certain person from a particular area, if they are satisfied that such order is necessary to prevent such person from acting in any way prejudicial to public safety or maintenance of public order. Preventive orders by their very nature cannot be made after any judicial enquiry or trial. If emergent steps have got to be taken to prevent apprehended acts which are likely to jeopardise the inter- ests or safety of the public, somebody must be given the power of taking the initial steps on his own responsibility;

and no reasonable objection could be taken if the authority, who is given the power, is also entrusted with the responsi- bility of maintaining order and public peace in any particu- lar district or province. The preventive provisions of the Criminal Procedure Code are based on similar principle. In my opinion, therefore, the provision of section 4 (1) (c) of the East Punjab Public Safety Act cannot be pronounced to be unreasonable, simply because the order could be passed by the Provincial Government 534 or the District Magistrate on their own personal satisfac- tion and not on materials which satisfy certain objective tests.

But though certain authorities can be invested with powers to make the initial orders on their own satisfaction in cases of this description, the position would certainly be different if the order thus made is allowed to continue for any indefinite period of time without giving the ag- grieved person an opportunity to say what he has got to say against the order. I have already set out the provisions of sub-section (3) of section 4 which deals with duration of the orders made under the various clauses of sub-section (1). It will be seen from this sub-section that there is absolutely no limit as to the period of time during which an externment order would remain in force if the order is made by the Provincial Government. The Provincial Government has been given unlimited authority in this respect and they can keep the order in force as long as they chose to do so.

As regards orders made by a District Magistrate, the period indeed has been fixed at three months, but even here the Provincial Government is competent to extend it to any length of time by means of a special order. The law does not fix any maximum period beyond which the order cannot continue; and the fact that the Act itself would expire in August, 1951, is, in my opinion, not a relevant matter for consideration in this connection at all. I have no hesi- tation in holding that the provision of sub-section (3) of section 4 is manifestly unreasonable and cannot be supported on any just ground. One could understand that the exigen- cies of circumstances might justify the vesting of plenary powers on certain authorities which could pass orders on their’ own personal satisfaction temporarily and for a short period of time; but if these orders are to continue indefi- nitely, it is only fair that an opportunity should be given to the person against whom such order is made to say what he has to say in answer to the allegations made against him.

There may not be an investigation by a regular Court but it is necessary that the aggrieved person should be given a fair hearing and that by an 535 impartial tribunal. The provision of the impugned Act which has bearing on this point is contained in sub-section (6) of section 4 and it runs as follows:

“When an order has been made in respect of any person under any of the clauses under section 4, sub-section (1), or sub-section (2) the grounds of it may be communicated to him by the authority making the order and in any case, when the order is to be in force for more than three months, he shall have a right of making a representation which shall be referred to the Advisory Tribunal, constituted under section 3, sub-section (4).” It will be noted that the first part of the subsection makes it entirely optional with the authorities to communi- cate the grounds, upon which the order is made, to the person affected by it. The grounds need not be communicated at all if the authorities so desire. As regards the right of representation the latter part of the sub-section seems to imply that when the order is to remain in force for more than three months, the right of representation should be given to the aggrieved person and the representation shall be referred for consideration to the advisory tribunal constituted under section 3, sub-section (4), of the Act.

The right, however, is purely illusory as would appear from the fact that even in cases where the order is to be opera- tive for more than three months, there is no obligation on the part of the authorities to communicate to the person the grounds upon which the order was made. The aggrieved person consequently may not at all be apprised of the allegations made against him and it will be impossible for him to make any adequate or proper representation, if he is not told on what grounds the order was passed. In my opinion, this is an equally unreasonable provision and neither sub-section (3) nor sub-section (6) of section 4 of the Act can be said to have imposed restrictions which are reasonable in the inter- ests of the general public. My conclusion, therefore, is that under article 13 (1) of the Indian Constitution, these provisions of the Act became void and inoperative after the Constitution came into 536 force, and consequently the order made by the District Magistrate in the present case cannot stand.

I would, therefore, allow the application and quash the externment order that has been passed against the petition- er.

Petition dismissed.

Agent for the petitioner: Ganpat Rai.

Agent for the opposite party: P.A. Mehta.

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]]> https://bnblegal.com/landmark/dr-n-b-khare-vs-the-state-of-delhi/feed/ 0 Vishaka & Ors. Vs. State of Rajasthan & Ors. https://bnblegal.com/landmark/vishaka-ors-vs-state-of-rajasthan-ors/ https://bnblegal.com/landmark/vishaka-ors-vs-state-of-rajasthan-ors/#respond Wed, 29 Jul 2020 05:40:53 +0000 https://bnblegal.com/?post_type=landmark&p=255537 IN SUPREME COURT OF INDIA VISHAKA & ORS. …PETITIONER Vs. STATE OF RAJASTHAN & ORS. …RESPONDENT DATE OF JUDGMENT: 13/08/1997 BENCH: CJI, SUJATA V. MANOHAR, B. N. KIRPAL J U D G M E N T Verma, CJI: This Writ Petition has been filed for the enforcement of the fundamental rights of working women under […]

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]]> IN SUPREME COURT OF INDIA

VISHAKA & ORS. …PETITIONER
Vs.
STATE OF RAJASTHAN & ORS. …RESPONDENT

DATE OF JUDGMENT: 13/08/1997

BENCH: CJI, SUJATA V. MANOHAR, B. N. KIRPAL

J U D G M E N T

Verma, CJI:

This Writ Petition has been filed for the enforcement of the fundamental rights of working women under Articles 14, 19 and 21 of the Constitution of India in view of the prevailing climate in which the violation of these rights is not uncommon. With the increasing awareness and emphasis on gender justice, there is increase in the effort to guard such violations; and the resentment towards incidents of sexual harassment is also increasing. The present petition has been brought as a class action by certain social activists and NGOs with the aim of focussing attention towards this societal aberration, and assisting in finding suitable methods for realisation of the true concept of ‘gender equality’; and to prevent sexual harassment of working women in all work places through judicial process, to fill the vacuum in existing legislation.

The immediate cause for the filing of this writ petition is an incident of alleged brutal gang rape of social worker in a village of Rajasthan. That incident is the subject matter of a separate criminal action and no further mention of it, by us, is necessary. The incident reveals the hazards to which a working woman may be exposed and the depravity to which sexual harassment can degenerate;

and the urgency for safeguards by an alternative mechanism in the absence of legislative measures. In the absence of legislative measures, the need is to find an effective alternative mechanism to fulfil this felt and urgent social need.

Each such incident results in violation of the fundamental rights of ‘Gender Equality’ and the ‘Right of Life and Liberty’. It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victim’s fundamental right under Article 19(1)(g) ‘to practice any profession or to carry out any occupation, trade or business’. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. This class action under Article 32 of the Constitution is for this reason. A writ of mandamus in such a siltation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a “safe” working environment. Right to life means life with dignity. The primary responsibility fro ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.

The notice of the petition was given to the State of Rajasthan and the Union of India. The learned Solicitor General appeared for the Union of India and rendered valuable assistance in the true spirit of a Law Officer to help us find a proper solution to this social problem of considerable magnitude. In addition to Ms. Meenakshi Arora and Ms. Naina Kapur who assisted the Court with full commitment, Shri Fali S. Nariman appeared as Amicus Curiae and rendered great assistance. We place on record our great appreciation for every counsel who appeared in the case and rendered the needed assistance to the Court which has enabled us to deal with this unusual matter in the manner considered appropriate for a cause of this nature.

Apart from Article 32 of the Constitution of India, we may refer to some other provision which envisage judicial intervention for eradication of this social evil. Some provisions in the Constitution in addition to Articles 14, 19(1)(g) and 21, which have relevance are:

Article 15:

“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.- (1) The State shall not discriminate against any citizen on only of religion, race, caste, sex, place of birth or any of them.

(2) xxx xxxx xxxx (3) Nothing in this article shall prevent the State from making any special provision for women and children.

(4) xxxx xxxx xxxx” Article 42:

“42. Provision for just and humane conditions of work and maternity relief – The State shall make provision for securing just and humane conditions of work and for maternity relief.” Article 51A:

“51A. Fundamental duties. – It shall be the duty of every citizen of India, – (a) to abide by the Constitution and respect its ideals and institutions, …

xxxx xxxx xxxx (e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

xxx xxxx xxxx” Before we refer to the international conventions and norms having relevance in this field and the manner in which they assume significance in application and judicial interpretation, we may advert to some other provisions in the Constitution which permit such use. These provisions are:

Article 51 :

“51. Promotion of international peace and security – The State shall endeavour to – xxxx xxxx xxxx (c) foster respect for international law and treaty obligations in the dealings of organised people with one another;

and xxx xxx xxx” Article 253 :

“253. Legislation for giving effect to international agreements – Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.” Seventh Schedule :

“List I – Union List:

xxxx xxxx xxxx

14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.

xxx xxx xxx” In the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places, the contents of International Conventions and norms are significant for the purpose of interpretation of the guarantee of gender equality, right to work with human dignity in Articles 14, 15 19(1)(g) and 21 of the Constitution and the safeguards against sexual harassment implicit therein. Any International Convention not inconsistent with the fundamental rights and in harmony with its spirit must be read into these provisions to enlarge the meaning and content thereof, to promote the object of the constitutional guarantee. This is implicit from Article 51(c) and enabling power of the Parliament to enact laws for implementing the International Conventions and norms by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution. Article 73 also is relevant. It provides that the executive power of the Union shall extend to the matters with respect to which Parliament has power to make laws. The executive power of the Union is, therefore, available till the parliament enacts to expressly provide measures needed to curb the evil.

Thus, the power of this Court under Article 32 for enforcement of the fundamental rights and the executive power of the Union have to meet the challenge to protect the working women from sexual harassment and o make their fundamental rights meaningful. Governance of the society by the rule of law mandates this requirements as a logical concomitant of the constitutional scheme. The exercise performed by the Court in this matter is with this common perception shared with the learned Solicitor General and other members of the Bar who rendered valuable assistance in the performance of this difficult task in public interest.

The progress made at each hearing culminated in the formulation of guidelines to which the Union of India gave its consent through the learned Solicitor General, indicating that these should be the guidelines and norms declared by this Court to govern the behaviour of the employers and all others at the work places to curb this social evil.

Gender equality includes protection from sexual harassment and right to work with dignity, which is a universally recognised basic human right. The common minimum requirement of this right has received global acceptance.

The International Conventions and norms are, therefore, of great significance in the formulation of the guidelines to achieve this purpose.

The obligation of this Court under Article 32 of the Constitution for the enforcement of these fundamental rights in the absence of legislation must be viewed along with the role of judiciary envisaged in the Beijing Statement of Principles of the Independence of the Judiciary in the LAWASIA region. These principles were accepted by the Chief Justices of the Asia and the Pacific at Beijing in 1995 as those representing the minimum standards necessary to be observed in order to maintain the independence and effective functioning of the judiciary. The objectives of the judiciary mentioned in the Beijing Statement are:

“Objectives of the Judiciary:

10. The objectives and functions of the Judiciary include the following:

(a) to ensure that all persons are able to live securely under the Rule of Law;

(b) to promote, within the proper limits of the judicial function, the observance and the attainment of human rights; and (c) to administer the law impartially among persons and between persons and the State.” Some provisions in the ‘Convention on the Elimination of All Forms of Discrimination against Women’, of significance in the present context are:

Article 11:

“1. States Parties shall take all appropriate measures to eliminate discrimination against women in the field of employment in order to ensure, on basis of equality of men and women, the same rights, in particular:

(a) The right to work as an inalienable right of all human beings;

xxxx xxxxx xxxx (f) The right to protection of health and to safety in working conditions, including the safeguarding of the function of reproduction.

xxx xxxxx xxxxx Article 24 :

“States Parties undertake to adopt all necessary measures at the national level aimed at achieving the full realization of the rights recognised in the present Convention.” The general recommendations of CEDAW in this context in respect of Article 11 are :

“Violence and equality in employment:

22. Equality in employment can be seriously impaired when women are subjected to gender specific violence, such as sexual harassment in the work place.

23. Sexual harassment includes such unwelcome sexually determined behavior as physical contacts and advance, sexually coloured remarks, showing pornography and sexual demands, whether by words or actions. Such conduct can be humiliating and may constitute a health and safety problem; it is discriminatory when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment, including recruiting or promotion, or when it creates a hostile working environment.

Effective complaints procedures and remedies, including compensation, should be provided.

24. States should include in their reports information about sexual harassment, and on measures to protect women from sexual harassment and other forms of violence of coercion in the work place.” The Government of India has ratified the above Resolution on June 25, 1993 with some reservations which are not material in the present context. At the Fourth World Conference on Women in Beijing, the Government of India has also made a official commitment, inter alia, to formulate and operationalize a national policy on women which will continuously guide and inform action at every level and in every sector; to set up a Commission for Women’s Rights to act as a public defender of women’s human rights; to institutionalise a national level mechanism to monitor the implementation of the Platform for Action. We have, therefore, no hesitation in placing reliance on the above for the purpose of construing the nature and ambit of constitutional guarantee of gender equality in our Constitution.

The meaning and content of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to compass all the facets of gender equality including prevention of sexual harassment or abuse.

Independence of Judiciary forms a part of our constitutional scheme. The international conventions and norms are to be read into them in the absence of enacted domestic law occupying the fields when there is no inconsistency between them. It is now an accepted rule of judicial construction that regard must be had to international conventions and norms fro construing domestic law when there is no inconsistency between them and there is a void in the domestic law. The High Court of Australia in Minister fro Immigration and Ethnic Affairs vs. Tech. 128 ALR 535, has recognised the concept of legitimate expectation of its observance in the absence of contrary legislative provision, even in the absence of a Bill of Rights in the Constitution of Australia.

In Nilabati Behera vs. State of Orissa 1993(2) SCC 746, a provision in the ICCPR was referred to support the view taken that an enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right’, as a public law remedy under Article 32, distinct from the private law remedy in torts. There is no reason why these international conventions and norms cannot, therefore, be used for construing the fundamental rights expressly guaranteed in the Constitution of India which embody the basic concept of gender equality in all spheres of human activity.

In view of the above, and the absence of enacted law to provide fro the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at work places, we lay down the guidelines and norms specified hereinafter for due observance at all work places or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.

The GUIDELINES and NORMS prescribed herein are as under:- HAVING REGARD to the definition of ‘human rights’ in Section 2(d) of the Protection of Human Rights Act, 1993, TAKING NOTE of the fact that the present civil and penal laws in India do not adequately provide for specific protection of women from sexual harassment in work places and that enactment of such legislation will take considerable time, It is necessary and expedient for employers in work places as well as other responsible persons or institutions to observe certain guidelines to ensure the prevention of sexual harassment of women:

1. Duty of the Employer or other responsible persons in work places and other institutions:

It shall be the duty of the employer or other responsible persons in work places or other institutions to prevent or deter the commission of acts of sexual harassment and to provide the procedures for the resolution, settlement or prosecution of acts of sexual harassment by taking all steps required.

2. Definition:

For this purpose, sexual harassment includes such unwelcome sexually determined behaviour (whether directly or by implication) as:

a) physical contact and advances;

b) a demand or request for sexual favours;

c) sexually coloured remarks;

d) showing pornography;

e) any other unwelcome physical verbal or non-verbal conduct of sexual nature.

Where any of these acts is committed in circumstances where under the victim of such conduct has a reasonable apprehension that in relation to the victim’s employment or work whether she is drawing salary, or honorarium or voluntary, whether in government, public or private enterprise such conduct can be humiliating and may constitute a health and safety problem. It is discriminatory for instance when the woman has reasonable grounds to believe that her objection would disadvantage her in connection with her employment or work including recruiting or promotion or when it creates a hostile work environment.

Adverse consequences might be visited if the victim does not consent to the conduct in question or raises any objection thereto.

3. Preventive Steps:

All employers or persons in charge of work place whether in the public or private sector should take appropriate steps to prevent sexual harassment. Without prejudice to the generality of this obligation they should take the following steps:

(a) Express prohibition of sexual harassment as defined above at the work place should be notified, published and circulated in appropriate ways.

(b) The Rules/Regulations of Government and Public Sector bodies relating to conduct and discipline should include rules/regulations prohibiting sexual harassment and provide for appropriate penalties in such rules against the offender.

(c) As regards private employers steps should be taken to include the aforesaid prohibitions in the standing orders under the Industrial Employment (Standing Orders) Act, 1946.

(d) Appropriate work conditions should be provided in respect of work, leisure, health and hygiene to further ensure that there is no hostile environment towards women at work places and no employee woman should have reasonable grounds to believe that she is disadvantaged in connection with her employment.

4. Criminal Proceedings:

Where such conduct amounts to a specific offence under the Indian Penal Code or under any other law the employer shall initiate appropriate action in accordance with law by making a complaint with the appropriate authority.

In particular, it should ensure that victims, or witnesses are not victimized or discriminated against while dealing with complaints of sexual harassment. The victims of sexual harassment should have the option to seek transfer of the perpetrator or their own transfer.

5. Disciplinary Action:

Where such conduct amounts to mis-conduct in employment as defined by the relevant service rules, appropriate disciplinary action should be initiated by the employer in accordance with those rules.

6. Complaint Mechanism:

Whether or not such conduct constitutes an offence under law or a breach of the service rules, an appropriate complaint mechanism should be created in the employer’s organization for redress of the complaint made by the victim. Such complaint mechanism should ensure time bound treatment of complaints.

7. Complaints Committee:

The complaint mechanism, referred to in (6) above, should be adequate to provide, where necessary, a Complaints Committee, a special counsellor or other support service, including the maintenance of confidentiality.

The Complaints Committee should be headed by a woman and not less than half of its member should be women.

Further, to prevent the possibility of any under pressure or influence from senior levels, such Complaints Committee should involve a third party, either NGO or other body who is familiar with the issue of sexual harassment.

The Complaints Committee must make an annual report to the government department concerned of the complaints and action taken by them. The employers and person in charge will also report on the compliance with the aforesaid guidelines including on the reports of the Complaints Committee to the Government department.

8. Workers’ Initiative:

Employees should be allowed to raise issues of sexual harassment at workers meeting and in other appropriate forum and it should be affirmatively discussed in Employer-Employee Meetings.

9. Awareness:

Awareness of the rights of female employees in this regard should be created in particular by prominently notifying the guidelines (and appropriate legislation when enacted on the subject) in suitable manner.

10. Where sexual harassment occurs as a result of an act or omission by any third party or outsider, the employer and person in charge will take all steps necessary and reasonable to assist the affected person in terms of support and preventive action.

11. The Central/State Governments are requested to consider adopting suitable measures including legislation to ensure that the guidelines laid down by this order are also observed by the employers in Private Sector.

12. These guidelines will not prejudice any rights available under the Protection of Human Rights Act, 1993.

Accordingly, we direct that the above guidelines and norms would be strictly observed in all work places for the preservation and enforcement of the right to gender equality of the working women. These directions would be binding and enforceable in law until suitable legislation is enacted to occupy the field. These Writ Petitions are disposed of, accordingly.

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