LANDMARK JUDGEMENT

Era of Agrarian Reforms

Article 19(1)(f) as originally enacted was that All citizens had the fundamental right to acquire,
hold and dispose of property.

Similarly Article 31 originally stated that No person shall be deprived of his property save by
authority of law providing proper compensation and requiring assent of President.

Article 13 (2) - The State shall not make any law which takes away or abridges the rights
conferred by Part III and any law made in contravention of this clause shall, to the extent of the
contravention, be void.

The conditions laid down in Article 31 were posing problem for the then Governments to abolish
Zamindari and bring agrarian reforms. Therefore, The Constitution (First Amendment) Act,
1951, introduced two Articles 31A and 31B.

The Constitution (First Amendment) Act, 1951

The agrarian reforms measures passed by State legislatures led to litigations in various high
courts on grounds of violation of fundamental right to property under Article 19. The Parliament
accordingly amended article 19 for the purposes indicated above and to insert provisions fully
securing the constitutional validity of zamindari abolition laws. Article 31 A was inserted which
provides acquisition of any estate or of any rights by the State even if it is inconsistent with, or
takes away any of the rights conferred by any provisions of Part III: Art 31 B was also inserted
which stated that any such laws for implementation of social reforms if specified in Ninth
schedule shall not be deemed to be void even if it is inconsistent with provision of Part II
notwithstanding any court judgment.

The First Amendment Act which curtailed Article 31 in order to bring agrarian reforms was
challenged as being violative of Article 13 of the Constitution.

Sankari Prasad Singh Deo v. Union of India AIR 1952 SC 458

The Supreme Court upheld the validity of the First Amendment on the basis that the word ―law‖
did not include within its scope a constitutional amendment passed under Article 368 because
such amendments are made in the exercise of constituent power and not legislative power.

While the abolition of zamindari system has been achieved, next objectives in land reform were
the fixing of limits to the extent of agricultural land that may be owned or occupied by any
person, the disposal of any land held in excess of the prescribed maximum and the further
modification of the rights of land owners and tenants in agricultural holdings. The proper
planning of urban and rural areas required the beneficial utilisation of vacant and waste lands and
the clearance of slum areas. It was often necessary to take over under State management for a
temporary period a commercial or industrial undertaking or other property in the public interest.
Laws providing for such temporary transference to State management should be permissible
under the Constitution. The reforms in company law now under contemplation, like the
progressive elimination of the managing agency system, provision for the compulsory
amalgamation of two or more companies in the national interest, the transfer of an undertaking
from one company to another, etc., require to be placed above challenge.

The Constitution (Fourth Amendment) Act, 1955

Then came the Constitution (Fourth Amendment) Act, 1955 amending clause (2) in Art 31. This
clause stated that if the property is acquired for public purpose by making a law providing
compulsory compensation, no question can be raised in court on the ground of adequacy of
compensation. Similarly clause 2A provided that if property is not acquired or requisitioned in
favour of State, then there is no right to demand compensation from State. In Article 31 A,
insertions were made to bring company reforms such as taking over and amalgamation. Seven
more Acts were inserted into IXth Schedule with total entries increased to 20 now.

Economic and social policies of Governments

A successful land reform was introduced that abolished giant landholdings, but efforts to
redistribute land by placing limits on landownership failed. Attempts to introduce large-scale
cooperative farming were frustrated by landowning rural elites, who formed the core of the
powerful right-wing of the Congress and had considerable political support in opposing the
efforts of Nehru. Pandit Nehru died on 27th May, 1964 and then Shri Lal Bahadur Shastri took
over as PM on 9th June, 1964 until his death on 11 th Jan 1966. He initiated White revolution and
also promoted Green revolution.

The Constitution (Seventeenth Amendment) Act, 1964

Article 31A of the Constitution provides that a law in respect of the acquisition by the State of
any estate or of any rights therein or the extinguishment or modification of any such rights shall
not 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, article 19 or article 31. The protection of this article is
available only in respect of such tenures as were estates on the 26th January, 1950, when the
Constitution came into force. The expression "estate" has been defined differently in different
States and, as a result of the transfer of land from one State to another on account of the
reorganisation of States, the expression has come to be defined differently in different parts of
the same State. Moreover, many of the land reform enactments relate to lands which are not
included in an estate. The laws made by State Legislatures were still being challenged and struck
down by Supreme Court, The Constitution (Seventeenth Amendment) Act, 1964 by inserting
Art 31 A clause (2) improved definition of term estate retrospectively. In the Ninth Schedule to
the Constitution, after entry 20 additional forty four acts were included to save their validity
totalling 64 entries now.

Sajjan Singh v. State of Rajasthan AIR 1965 SC 845

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 the law declared in Sankari Prasad was
reiterated in the ratio of 3:2.
In its majority opinion (Gajendragadkar C.J., Wanchoo, Dayal JJ) the Court held that Articles
31-A and 31-B were added to the Constitution realising 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 31-A and 31-B 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 Parliament is seeking to amend fundamental rights
solely with the object of removing any possible obstacle in the fulfilment of the socioeconomic
policy viz., a policy in which the party in power believes.

In its minority dissent Justice Hidayatullah observed that, ―I would require stronger reasons than
those given in Shankari Prasad to make me accept the view that Fundamental Rights were not
really fundamental but were intended to be within the powers of amendment in common with the
other parts of the constitution and without concurrence of the states‖.

Similarly Justice Mudholkar expressed reluctance in accepting that the word ―law‖ in Article 13
excluded within it scope the constitutional amendments. Every constitution has certain basic
features which could not be changed. The basic structure theory was first introduced by Justice
Mudholkar in the Sajjan Singh case (1965) by referring to a 1963 decision of the Supreme Court
of Pakistan.Chief Justice Cornelius of Pakistan had held in Fazulal Quader Chawdry v. Mohd.
Abdul Haque [1963 PLD 486(SC) that the President of Pakistan could not alter the
―fundamental features‖ of their Constitution.

Indira‟s Rule in 1966 till 1977

In the Congress Party's parliamentary leadership election held in early 1966 (upon the death
of Shastri), she defeated her rival Morarji Desai to become leader, and thus succeeded Shastri as
Prime Minister of India. As prime minister, Gandhi was known for her political intransigency
and unprecedented centralisation of power.

IC Golaknath v State of Punjab) – AIR 1967 SC 1643

The family of Henery and William Golaknath had over 500 acres of land in Punjab. Acting under
the Punjab Security and Land Tenure Act, 1953, State government said that they can keep only
30 acres land and rest of the land will be distributed among the worker on the field for their
welfare. This act was placed in Ninth schedule by the seventeenth Constitutional
Amendment Act. Golaknath and others filed a writ petition under Article 32 of the Indian
Constitution challenging that a law which violates our Fundamental rights mentioned under
Article 19(1)(f) i.e Right to hold and acquire property, 19(1)(g) Right to practice any profession
and Article 14 Equality before law and Equal protection of laws . They sought to have the
Seventeenth Amendment which had placed the Punjab Act in the Ninth Schedule to be declared
ultra vies.

By the Thin Majority of 6 out of 11 judges, held a constitutional amendment under Article 368 of
the constitution was an ordinary ―law‖ within the meaning of Article 13(3) of the constitution.
Since according to Article 13(2), the parliament could not make any law that abridges the
Fundamental Rights contained in Part III of the Constitution, Supreme Court held that
fundamental rights were beyond the amending powers of Parliament. To check colourable
exercise of power and save Democracy from autocratic actions of Parliament, the majority held
that Parliament cannot amend Fundamental Rights.
The Apex court with the largest bench that had ever sat on an issue till that time arrived at a 6:5
majority favouring Petitioners. The then CJI Subba Rao along with four other justices (J.C. Shah,
S.M. Sikri, J.M. Shelat, C.A. Vaidiyalingam) wrote the majority opinion and Justice
Hidayatullah agreeing with CJI Subba Rao‘s opinion wrote a separate opinion whereas Justices
K.N. Wanchoo, Vishistha Bhargava and G.K. Mitter wrote single minority opinion and Justices
R.S. Bachawat and V. Ramaswami wrote separate minority opinions.

Given this "policy and doctrinaire decision to favour Fundamental Rights", the majority
judgment of Subha Rao C.J. proceeded to accept the following propositions:
(i) Article 368 with its marginal note "Procedure for amendment of the Constitution" dealt only
with the procedure for amendment. Amendment was a legislative process and the power of
Parliament to make amendments was contained in article 248 and Entry 97 in List I of the
Seventh Schedule (the Union List) which confer residuary legislative powers on the Union
Parliament
(ii) An amendment to the Constitution, whether under the procedural requirements of article 368
or under any other article, is made as part of the normal legislative process. It is, therefore, a
"law" for the purpose of article 13(2).

Simply four proposition laid down in Golak Nath case were

1. The constituent power to amend the does not lie with Parliament but Article 368 only contains
the procedure to amend the Constitution
2. A constitutional amendment can be done by legislative power of parliament. An amending law
made under Article 368 would be subject to Art 13(2) like any other law.
3. The word ‗amend‘ envisaged only minor modifications in the existing provisions but not any
major alterations therein;
4. To amend the Fundamental Rights, a Constituent Assembly ought to be convened by
Parliament.

Doctrine of prospective ruling

The doctrine of prospective overruling implies that the effects of the law to be laid down will be
applicable on the future dates only i.e. past decisions will not be affected by this decision. The
rule of retrospectivity means that when a law is declared invalid, then it is deemed to be invalid
from the date law had come into existence or the date on which it was enacted. The concept of
Prospective Overruling is a deviation from the principle of retroactive operation of a decision.
The whole purpose is to avoid reopening of settled issues and also prevent multiplicity of
proceedings; in effect, this means that all actions prior to the declaration do not stand invalidated.
It was in this case that the then Chief Justice Subba Rao had first invoked the doctrine of
prospective overruling. This principle, borrowed from the American Constitution.

Chief Justice explained that the Indian Constitution does not expressly or by necessary
implication speak against the doctrine of prospective over-ruling. Talking about Articles 32, 141
and 142, he says they are couched in such wide and elastic terms as to enable this Court to
formulate legal doctrines to meet the ends of justice. The only limitation thereon, he says, is
reason, restraint and injustice. These articles are designedly made comprehensive to enable the
Supreme Court to declare law and to give such directions or pass such orders as are necessary to
do complete justice.

In Golak Nath v. State of Punjab Sankari Prasad and Sajjan Singh were overruled by majority of
six to five. It was declared that Parliament will have no power from the date of the decision (27-
2-1967) 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 case, the Constitution
(Twenty-fourth Amendment) Act, 1971, the Constitution (Twenty-fifth Amendment) Act, 1971,
the Constitution (Twenty-sixth Amendment) Act, 1971 and the Constitution (Twenty-ninth
Amendment) Act, 1972 were passed.

The Constitution (Twenty-fourth Amendment) Act, 1971

By the Constitution (Twenty-fourth 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 (Twenty-fifth Amendment) Act, 1971

It 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 31- B of the Constitution, Article 31-C was inserted.

The Constitution (Twenty-sixth Amendment) Act, 1971

This amendment omitted from the Constitution Article 291 (privy purses) and Article 362 (rights
and privileges of rulers of Indian States) and inserted Article 363-A after Article 363 providing
that recognition granted to rulers of Indian States shall cease and privy purses be abolished.

The Constitution (Twenty-ninth Amendment) Act, 1972

It 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 and Entry 66 - Kerala Land Reforms Amendment Act, 1971.

These amendments were challenged in Kesavananda Bharati case. The decision in Kesavananda
Bharati case was rendered on 24-4-1973 by a thirteen-Judge Bench and by majority of seven to
six Golak Nath case was overruled. The majority opinion held that Article 368 did not enable
Parliament to alter the basic structure or framework of the Constitution. The Constitution
(Twenty-fourth Amendment) Act, 1971 was held to be valid.

Further, the first part of Article 31-C was also held to be valid. However, the second part of
Article 31-C 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 29th Constitution 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 Parliament to amend the Constitution
and instead held that Article 368 has implied limitations. Article 368 does not enable Parliament
to alter the basic structure or framework of the Constitution.

Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461

The Supreme Court laid down the Theory of Basic Structure in this case. According to this
theory, some of the provisions of the Constitution of India form its basic structure which are not
amendable by Parliament by exercise of its constituent power under Article 368.

Supreme Court overruled Golaknath case but stated that though Parliament may amend
fundamental rights but basic structure of the constitution cannot be amended. It also ruled that
Preamble is part of Constitution

Emergency 25th June 1975 till 21st March 1977

On 27th June 1975, the presidential order declaring that the right of any person to move any court
for any enforcement of the rights conferred by Articles 14, 21 and 22 of the constitution and all
proceedings pending in any court for the enforcement of those rights would remain suspended
for the period during which the proclamation of Emergency was in force.

ADM Jabalpur v Shivkant Shukla 28 th April 1976

It was held that detention even if they are illegal could not be challenged during emergency after
order is to suspend enforcement of rights under Art 22 is issued.

Justice M. Hameedullah Beg was made Chief Justice of India superseding Justice Khanaa (who
gave dissenting opinion) on 29th Jan, 1977 contrary to the convention of appointing the senior-
most puisne judge as the next Chief Justice and Justice Khanna promptly resigned.

After resigning from the Supreme Court Justice Khanna served as the central minister of law and
justice for a very short period of three days in the Charan Singh Ministry after the fall of the
Indira Gandhi Government and was later made a combined opposition-sponsored candidate for
election as President in 1982, losing to Zail Singh.

Atal Bihari Vajpayee served three terms as the Prime Minister of India, first for a term of
13 days in 1996, then for a period of 13 months from 1998 to 1999, followed by a full term
from 1999 to 2004.

In 1999, Justice Khanna was awarded the Padma Vibhushan in recognition of his career in
judicial service, the second highest civilian honour given by the Government of India.
Between 2004 to 2014 Manmohan Singh remained Prime Minister in United Progressive
Alliance (UPA) government.

The administration of Narendra Modi who was swon in Prime Minister of India on 26th May,
2014 declared that Vajpayee's birthday, 25 December, would be marked as Good Governance
Day. In 2015, he was conferred India's highest civilian honour, the Bharat Ratna, by
the President of India, Pranab Mukherjee

During internal Emergency, Parliament passed the Constitution (Fortieth 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.

THE CONSTITUTION (Forty-second Amendment) Act, 1976 (18 Dec, 1976)

It was proposed to amend the Constitution to spell out expressly the high ideals of socialism,
secularism and the integrity of the nation, to make the directive principles more comprehensive
and give them precedence over those fundamental rights which have been allowed to be relied
upon to frustrate socio-economic reforms for implementing the directive principles. It is also
proposed to specify the fundamental duties of the citizens and make special provisions for
dealing with anti-national activities, whether by individuals or associations.

In the Preamble, the words "SOVEREIGN SOCIALIST SECULAR DEMOCRATIC

REPUBLIC" shall be substituted; and for the words "unity of the Nation", the words "unity and
integrity of the Nation" shall be substituted.

Article 31C provides:

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 5[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 6[article 14 or article
19]; 7[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

It was inserted by the Constitution (Twenty-fifth Amendment) Act, 1971, s. 3. (w.e.f. 20-4-
1972). In Kesavananda Bharati Vs. the State of Kerala (1973). AIR 1973 SC 1461, the Supreme
Court had held the provisions in italics to be invalid. It was further Subs. by the Constitution
(Forty-second Amendment) Act, 1976, s. 4, for ―the principles specified in clause (b) or clause
(c) of article 39‖ (w.e.f. 3-1-1977)

Amendment of article 31C.-In article 31C of the Constitution, for the words, brackets, letters and
figures "the principles specified in clause (b) or clause (c) of article 39", the words and figures
"all or any of the principles laid down in Part IV" shall be substituted.

In Part IV there was insertion of new articles:

39A - Equal justice and free legal aid.
43A -. Participation of workers in management of industries.
48A.- Protection and improvement of environment and safeguarding of forests and wild life.
There was insertion of new Part IVA also namely Fundamental Duties with Article 51A. and Part
XIVA.- Tribunal and new articles 323A and 323B were also inserted. 51 A(g) provides that It
shall be the duty of every citizen of India to protect and improve the natural environment
including forests, lakes, rivers and wild life, and to have compassion for living creatures.

There was amendment of article 74 of the Constitution for clause (1), the following clause was
substituted, namely:-
"(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise
the President who shall, in the exercise of his functions, act in accordance with such advice.".

Amendment of article 368.- In article 368 of the Constitution after clause (3), the following
clauses shall be inserted, namely:-
"(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.".

Post-Emergency and Sixth Lok Sabha

In January 1977, Indira Gandhi dissolved the fifth Lok Sabha and declared that elections to the
body were to be held during March 1977 for sixth Lok Sabha. Opposition leaders were also
released and promptly formed the Janata alliance to fight the elections. The alliance registered a
landslide victory in the election. On the urging of Jayaprakash Narayan, the Janata alliance
selected Morarji Desai as their parliamentary leader and thus the Prime Minister on 24 th March,
1977.

The Constitution (Forty-fourth Amendment) Act, 1978, was enacted by the Janata Party which
had won the 1977 general elections campaigning on a promise to "restore the Constitution to the
condition it was in before the Emergency

THE CONSTITUTION (Forty-fourth Amendment) Act, 1978

Recent experience has shown that the fundamental rights, including those of life and liberty,
granted to citizens by the Constitution are capable of being taken away by a transient majority. It
is, therefore, necessary to provide adequate safeguards against the recurrence of such a
contingency in the future

In view of the special position sought to be given to fundamental rights, the right to property,
which has been the occasion for more than one amendment of the Constitution, would cease to
be a fundamental right and become only a legal right. Necessary amendments for this purpose
are being made to article 19 and article 31 is being deleted. It would, however, be ensured that
the removal of property from the list of fundamental rights would not affect the right of
minorities to establish and administer educational institutions of their choice. Similarly, the right
of persons holding land for personal cultivation and within the ceiling limit to receive
compensation at the market value would not be affected. Property, while ceasing to be a
fundamental right, would, however, be given express recognition as a legal right, provision being
made that no person shall be deprived of his property save in accordance with law.

Adequate safeguards to check against misuse of emergency have been provided while issuing
proclamation of Emergency under article 352

Term of Lok Sabha under 83(2) was reduced from six to five years.

An appeal to Supreme Court under clause (1) of article 132 or clause (1) of article 133, or clause
(1) of article 134 shall require a certificate from High Court that passed a judgment, decree, final
order, or sentence.

Maneka Gandhi v. Union of India, (1978) 1 SCC 248

MH Beg, CJ and YV Chandrachud, VR Krishna Iyer, PN Bhagwati, NL Untwalia, S Murtaza
Faza Ali and PS Kailasam, JJ

Facts: The petitioner is the holder of the passport issued to her on June 1, 1976 under the
Passports Act, 1967. On July 4, 1977 the petitioner received a letter dated July 2, 1977 from the
Regional Passport Officer, Delhi intimating to her that it has been decided by the Government of
India to impound her passport under Section 10(3)(c) of the Act in public interest and requiring
her to surrender the passport within seven days from the date of receipt of the letter. The
petitioner immediately addressed a letter to the Regional Passport Officer requesting him to
furnish a copy of the statement of reasons for making the order as provided in Section 10(5) to
which a reply was sent by the Government of India, Ministry of External Affairs on July 6, 1977
stating inter alia that the Government has decided ―in the interest of the general public‖ not to
furnish her a copy of the statement of reasons for the making of the order. The petitioner
thereupon filed the present petition challenging the action of the Government in impounding her
passport and declining to give reasons for doing so.

Meaning and content of personal liberty in Article 21

In A. K. Gopalan v. State of Madras [AIR 1950 SC 27] and the observations made by Patanjali
Sastri, J., Mukherjea, J., and S. R. Das, J., seemed to place a narrow interpretation on the words
‗personal liberty‘ so as to confine the protection of Article 21 to freedom of the person against
unlawful detention. The decision in A. K. Gopalan case gave rise to the theory that the freedoms
under Articles 19, 21, 22 and 31 are exclusive - each article enacting a code relating to the
protection of distinct rights

It was in Kharak Singh v. State of U. P. [AIR 1963 SC 1295], that the question as to the proper
scope and meaning of the expression ‗personal liberty‘ came up pointedly for consideration for
the first time before this Court. The majority of the Judges took the view that personal liberty is
used in the article as a compendious term to include within itself all the varieties of rights
which go to make up the ‘personal liberties of man other than those dealt with in the several
clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or
attributes of that freedom, personal liberty in Article 21 takes in and comprises the residue.

The minority judges, however, disagreed with this view taken by the majority and explained
their position in the following words: ―No doubt the expression ‗personal liberty‘ is a
comprehensive one and the right to move freely is an attribute of personal liberty. It is said that
the freedom to move freely is carved out of personal liberty and, therefore, the expression
‗personal liberty‘ in Article 21 excludes that attribute.‖

In R. C. Cooper v. Union of India, 1970 AIR 564 the majority view of Kharak Singh case was
upheld. Shah, J., speaking on behalf of the majority pointed out that ―Part III of the Constitution
weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the
protection of those rights in their allotted fields they do not attempt to enunciate distinct rights.‖
The conclusion was summarised in these terms: ―In our judgment,the assumption in A. K.
Gopalan case that certain articles in the Constitution exclusively deal with specific matters -
cannot be accepted as correct. Even where a person is.detained in accordance with the procedure
prescribed by law, as mandated by Article 21, the protection conferred by the various clauses of
Article 19(1) does not cease to be available to him and the law authorising such detention has to
satisfy the test of the applicable freedoms under Article 19, clause (1).

The inter-relationship between Articles 14, 19 and 21

In E.P. Royappa v. State of Tamil Nadu [(1974) 2 SCR 348], namely, that ―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‖. 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 test 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.

Subsequently, in Haradhan Saha v. State of West Bengal [(1975) 1 SCR 778] also, a Bench of
five Judges of this Court, after referring to the decisions in A.K. Gopalan case and R.C. Cooper
case, agreed that the Maintenance of Internal Security Act, 1971, which is a law of preventive
detention, has to be tested in regard to its reasonableness with reference to Article 19.

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.
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 test 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.

Direct and inevitable effect test

The argument which arose for consideration in A. K. Gopalan case was that the preventive
detention order results in the detention of the applicant in a cell and hence it contravenes the
fundamental rights guaranteed under clauses (a),(b),(c),(d),(e) and (g) of Article 19(1). This
argument was negatived by Kania, C.J., who pointed out that: ―The true approach is only to
consider the directness of the legislation and not what will be the result of the detention,
otherwise valid, on the mode of the detenues life

These observations were quoted with approval by Patanjali Sastri, J., speaking on behalf of the
majority in Ram Singh v. State of Delhi [AIR 1951 SC 270]. There, the detention of the
petitioner was ordered with a view to preventing him from making any speeches prejudicial to
the maintenance of public order and the argument was that the order of detention was invalid as
it infringed the right of free speech and expression guaranteed under. Article 19(l)(a). The Court
took the view that the direct object of the order was preventive detention and not the
infringement of the right of freedom of speech and expression, which was merely consequential
upon the detention of the detenue and upheld the validity of the order.

In Bennett Coleman v. UOI 1973 AIR 106, newsprint policy which inter alia imposed a
maximum limit of ten pages for every newspaper but without permitting the newspaper to
increase the number of pages by reducing circulation to meet its requirement even within the
admissible quota. These restrictions were said to be violative of the right of free speech and
expression guaranteed under Article 19(l)(a) since their direct and inevitable consequence was to
limit the number of pages which could be published by a newspaper to ten.

The argument of the Government was that the object of the newsprint policy was rationing and
equitable distribution of imported newsprint which was scarce commodity and not abridgement
of freedom of speech and expression. The subject matter of the import policy was ―rationing of
imported commodity and equitable distribution of newsprint‖ and the newsprint policy did not
directly and immediately deal with the right mentioned in Article 19(l)(a) and hence there was no
violation of that article. This argument of the Government was negatived by the majority.

The majority took the view that it was not the object of the newsprint policy or its subject-matter
which was determinative but its direct consequence or effect upon the rights of the newspapers
and since ―the effect and consequence of the impugned policy upon the newspapers‖ was direct
control and restriction of growth and circulation of newspapers, the newsprint policy infringed
freedom of speech and expression and was hence violative of Article 19(l)(a).
The pith and substance theory was thus negatived in the clearest term and the test applied was as
to what is the direct and inevitable consequence or effect of the impugned State action on the
fundamental right of the petitioner. It is possible that in a given case the pith and substance of the
State action may deal with a particular fundamental right but its direct and inevitable effect may
be on another fundamental right and in that case, the State action would have to meet the
challenge of the latter fundamental right. The pith and substance doctrine looks only at the object
and subject matter of the State action, but in testing the validity of the State action with reference
to fundamental rights, what the Court must consider is the direct and inevitable consequence of
the State action. Otherwise, the protection of the fundamental rights would be subtly but surely
eroded.

The decision in R.C. Cooper case thus overturned the view taken in A.K. Gopalan case. As
pointed out by Ray, J., speaking on behalf of the majority in Bennett Coleman case, it laid down
two inter-related propositions, namely: First, it is not the object of the authority making the law
impairing the right of the citizen nor the form of action that determines the invasion of the right.
Secondly, it is the effect of the law and the action upon the right which attracts the jurisdiction of
the Court to grant relief. The direct operation of the Act upon the rights forms the real test.

Principles of constitutionality and Judicial Review

Minerva Mills [(1980) 3 SCC 625]

In Minerva Mills while striking down the enlargement of Article 31-C through 42nd Amendment
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‖, Chandrachud, J. said:

―Section 4 of the Constitution (Forty-second Amendment) Act is beyond the amending power of
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.‖

Granville Austin has been extensively quoted and relied on in Minerva Mills. Chandrachud, C.J.,
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 civilised societies and have been described in
judgments as ―transcendental‖, ―inalienable‖ and ―primordial‖. They constitute the ark of the
Constitution (Kesavananda Bharati). 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 Parts 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 an essential element of the
basic structure of our Constitution.‖
The observations of Bhagwati, J. in Minerva Mills case show how clause (4) of Article 368
would result in enlarging the amending power of Parliament contrary to the dictum in
Kesavananda Bharati case. The learned Judge has said in para 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 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.‖

Waman Rao v. Union of India [AIR 1981 SC 271]

The question examined in Waman Rao case was whether the device of Article 31-B could be
used to immunise the 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 the affirmative. It has been said that it is likely to make the
controlled Constitution uncontrolled. It would render the 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 the Ninth Schedule laws as it makes the entire Part III inapplicable
at the will of Parliament. This results in the change of the identity 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.

Amendments to the Constitution made on or after 24-4-1973 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.

Establishment of Tribunals

Evidently, there is a desperate need to overcome these hurdles of delay in administration of

justice. Creation of tribunals has evolved as one solution in the ever-constant strive to increase
access to justice. A Tribunal can be understood as a body tasked with discharging quasi-judicial
functions with the primary objective of providing a special forum for specific type of disputes
and for faster and more efficacious adjudication of issues. The procedure followed by the courts
is regularly prescribed and in discharging their functions and exercising their powers, the courts
have to conform to that procedure. The procedure which the tribunals have to follow may not
always be so strictly prescribed, but the approach adopted by both the courts and the tribunals is
substantially the same, and there is no essential difference between the functions that they
discharge.

Hence, the need for establishment of newer and more specialised adjudicatory bodies is not
newfound but has evolved through developments spread over an era.

I. Administrative Reforms Commission - 1966

The Administrative Reforms Commission was set up to explore the arenas for establishing
Administrative Tribunals for different subject matters. It recommended establishment of Civil
Services Tribunals as adjudicatory entities for disciplinary punishments awarded to civil
servants.
II. Wanchoo Committee - 1970
The Wanchoo Committee recommended reforms to the Income Tax Appellate Tribunal to
effectuate replacement of Civil Courts for expeditious redressal of tax disputes. It also
recommended formation of a Direct Taxes Settlement Tribunal to ensure speedy remedies and
decisions of disputes.
III. High Courts Arrears Committee Report - 1972
A committee headed by Justice JC Shah highlighted an urgent need for individual-specialised
Tribunals for exclusively dealing with service matters and to unburden High Courts by
restricting the barrage of writ petitions being filed by government employees.
IV. Swaran Singh Committee – 1976
The Swaran Singh Committee took a radical view by advocating amendments to the Constitution
for regulation of Tribunals and to curtail the writ jurisdiction of High Court and the Supreme
Court. This report attracted a lot of critique from the legal fraternity and was later rejected in
Sakinala Hari Nath vs. State Of Andhra Pradesh 11 1993 (3) ALT 471 and in L. Chandra Kumar
v. Union of India 1997 (2) SCR 1186

Tribunals can thus be viewed as alternate avenues to facilitate swift dispensation of justice
through less-formal procedures of adjudication. An examination of existing Tribunals in India
and across foreign jurisdictions, shows that they are best suited to deal with complex subject-
matters requiring technical expertise such as service law, tax law, company law or environment
law, etc. In India, the Constitution (42nd Amendment) Act, 1976 paved way for tribunalisation
of the justice dispensation system by introduction of Articles 323A and 323B in the Constitution.

The Constitution (Forty-second Amendment) Act, 1976 inserted Part XIVA in the Constitution
which contains Articles 323A and 323B. These articles provide for the setting up of various
tribunals as adjudicatory bodies. They, inter alia, contain provisions enabling the Parliament and
state legislatures to exclude the jurisdiction of all courts except that of the Supreme Court under
Article 136 with respect to matters falling within the jurisdiction of the tribunals concerned. The
Administrative Tribunals Act, 1985 was enacted by Parliament by virtue of Article 323A.

It was indicated in M.C. Mehta v. Union of India 1986 (2) SCC 176, that a dedicated Tribunal
with both judicial and technical experts is necessary to hear environmental disputes.
Consequently, the National Environment Tribunal Act, 1995 and National Environment
Appellate Authority Act, 1997 were enacted. However, these were soon found to be incapable of
providing expeditious resolution of disputes which necessitated reforms as suggested by the Law
Commission of India. This led to the establishment of the National Green Tribunal (NGT) in
2010 as a special fast- track Court only to deal with issues related to the environment.

This Court has observed through numerous decisions that the term Tribunal refers to a quasi-
judicial authority. A test to determine whether a particular body was merely an administrative
organ of the Executive or a Tribunal was evolved by this Court in Jaswant Sugar Mills Ltd.,
Meerut vs. Lakshmichand, AIR 1963 SC 677. It was to be examined whether the body is
vested with powers of a Civil Court or not, and it was held that any adjudicatory body vested
with powers of taking evidence, summoning of witnesses, etc. must be categorised as a Tribunal.

S.P. Sampath Kumar v. Union of India (1987) 1 SCC 124

The validity of The Administrative Tribunals Act, 1985 was challenged in S.P. Sampath
Kumar v. Union of India [(1987) 1 SCC 124]. While upholding the validity of Section 28 of
the Act in Sampath Kumar case, the court had taken the view that the power of judicial review
need not always be exercised by regular courts and the same could be exercised by an equally
efficacious alternative mechanism. Apart from making suggestions relating to the eligibility, etc.
of the persons who could be appointed as chairman, vice-chairman or members of the tribunal,
the court stated that every Bench of the tribunal should consist of one Judicial Member and one
Administrative Member.

R.K. Jain v. Union of India, (1993) 4 SCC 119

This Court had, in order to understand how the theory of alternative institutional mechanisms
had functioned in practice, recommended that the LCI [Law Commission of India] or a similar
expert body should conduct a survey of the functioning of these Tribunals. It was hoped that
such a study, conducted after gauging the working of the Tribunals over a sizeable period of
more than five years would provide an answer to the questions posed by the critics of the theory.
Unfortunately, we do not have the benefit of such a study. We may, however, advert to the
Report of the Arrears Committee (1989-90), popularly known as the Malimath Committee
Report, which has elaborately dealt with the aspect. The observations contained in the Report, to
this extent they contain a review of the functioning of the Tribunals over a period of three years
or so after their institution, will be useful for our purpose. Chapter VIII of the second volume of
the Report, ―Alternative Modes and Forums for Dispute Resolution‖, deals with the issue at
length. After forwarding its specific recommendations on the feasibility of setting up ―Gram
Nyayalayas‖, Industrial Tribunals and Educational Tribunals, the Committee has dealt with the
issue of Tribunals set up under Articles 323-A and 323-B of the Constitution.

L. Chandra Kumar v. Union of India [(1997) 3 SCC 261]

In this case, a Constitution Bench of seven judges of this Court examined reports of expert
committees and commissions analysing the problem of arrears. The Malimath Committee Report
(1989-1990) was also referred to, wherein it was found that many Tribunals failed the test of
public confidence due to purported lack of competence and objectivity. It involved the
consideration of the following broad issues:
(1) Whether the power conferred upon Parliament or the State Legislatures, as the case may be,
by sub-clause (d) of clause (2) of Article 323A or by sub-clause (d) of clause (3) of Article 323B
of the Constitution, to totally exclude the jurisdiction of ‗all courts‘, except that of the Supreme
Court under Article 136, in respect of disputes and complaints referred to in clause (1) of Article
323A or with regard to all or any of the matters specified in clause (2) of Article 323B, runs
counter to the power of judicial review conferred on the High Courts under Articles 226/227 and
on the Supreme Court under Article 32 of the Constitution?

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 the Constitution of India. Clause 2(d) of Article 323A and clause
3(d) of Article 323B, to the extent they exclude the jurisdiction of the High Courts and the
Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional.

(2) Whether the Tribunals, constituted either under Article 323-A or under Article 323-B of the
Constitution, possess the competence to test the constitutional validity of a statutory
provision/rule?

The Tribunals created under Article 323A and Article 323B of the Constitution are possessed of
the competence to test the constitutional validity of statutory provisions and rules. The Tribunals
will consequently also have the power to test the vires of subordinate legislations and rules.
However, this power of the Tribunals will be subject to one important exception. The Tribunals
shall not entertain any question regarding the vires of their parent statutes following the settled
principle that a Tribunal which is a creature of an Act cannot declare that very Act to be
unconstitutional. In such cases alone, the High Court concerned may be approached directly.

(3) Whether these Tribunals, as they are functioning at present, can be said to be effective
substitutes for the High Courts in discharging the power of judicial review? If not, what are the
changes required to make them conform to their founding objectives?

All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of
the High Court within whose jurisdiction the Tribunal concerned falls. No appeal from the
decision of a Tribunal will directly lie before the Supreme Court under Article 136 of the
Constitution; but instead, the aggrieved party will be entitled to move the High Court under
Articles 226/227 of the Constitution and from the decision of the Division Bench of the High
Court the aggrieved party could move this Court under Article 136 of the Constitution.

Addressing the issue of the dependence of tribunals on the Executive for administrative
requirements, a recommendation was made for creation of a single umbrella organisation which
will be an independent supervisory body to oversee the working of the Tribunals. This Court was
also of the opinion that the Ministry of Law and Justice, Government of India should be the
nodal Ministry.

V. Raghavan Committee - 2002

In accordance with contemporaneous evolutions in the commercial sphere, the Raghavan
Committee was set up to suggest methods to regulate anti- competitive practices. This
Committeerecommended establishment of the Competition Commission of India (CCI), which
was envisioned to maintain adequate competition in the market and protect consumer welfare.
Further, the Competition Act, 2002 was later enacted which provided certain powers of Civil
Courts to the CCI for effective enquiry and adjudication.

Union of India v. R. Gandhi, President, Madras Bar Association (2010) 11 SCC 1

Part I-B and Part I-C were inserted in the Companies Act, 1956 providing for the constitution of
the National Company Law Tribunal (NCLT) and the National Company Law Appellate
Tribunal (NCLAT). Madras Bar Association filed a Writ Petition in the Madras High Court
challenging the vires of the above provisions on the grounds of violation of rule of law, doctrine
of separation of powers and the independence of the judiciary, which are essential features of the
basic structure of the Constitution. The Madras High Court allowed the Writ Petition, which was
subject matter of several appeals which were disposed of by this Court in Union of India v. R.
Gandhi, President, Madras Bar Association (2010) 11 SCC 1 . This Court was of the opinion
that while it cannot be said that the Legislature is denuded the power to transfer judicial
functions performed by courts to Tribunals, nevertheless independent judicial Tribunals for
determination of the rights of citizens, and for adjudication of the disputes and complaints of the
citizens, is a necessary concomitant of the rule of law. It was held in the above judgment that
judicial independence and separation of judicial power from the executive, are part of common
law traditions implicit in a Constitution like ours. The creation of the NCLT and NCLAT was
upheld. However, the defects found in Parts I-B and I-C of the Companies Act, 1956 were
directed to be rectified by suitable amendments with modifications suggested by this Court in
order to uphold the judicial independence of the Tribunals. The suggestions pertained to
composition of the Search-cum-Selection Committee (for appointment of members of the
tribunals), qualifications for appointment, and service conditions of members of the Tribunals.

Madras Bar Association v. Union of India, (2014) 10 SCC 1

Later, Madras Bar Association had assailed the constitutional validity of the National Tax
Tribunal Act, 2005. This Court held the National Tax Tribunal Act, 2005 to be unconstitutional.
Nonetheless, the vesting of adjudicatory functions in Tribunals was held to be not violative of the
basic structure of the Constitution.

The Companies Act, 2013 replaced the earlier Act of 1956 in which amendments were made to
provisions relating to the establishment of NCLT and NCLAT. A Writ Petition was filed under
Article 32 by the Madras Bar Association questioning the amended provisions of Chapter XXVII
of the Companies Act, 2013, and more particularly Sections 408, 409, 411(3), 412, 413, 425, 431
and 434. The complaint of the Madras Bar Association in the said Writ Petition was that the
offending provisions were analogous to the provisions in the 1956 Act which were found to be
unconstitutional by this Court in Union of India v. Madras Bar Association (2010) (supra). The
constitutional validity of the provisions in Chapter XXVII of the Companies Act, 2013 was
upheld by a judgment in Madras Bar Association v. Union of India Madras Bar Association v.
Union of India, (2015) 8 SCC 583 . However, this Court was of the view that certain provisions
relating to composition of the Search-cum-Selection Committee and qualification of Members of
the Tribunals are invalid as they are contrary to the directions issued by the earlier judgment in
Union of India v. Madras Bar Association (2010) (supra).

S.R. Bommai v. Union of India [(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.

I.R. Coelho v. State of T.N. (2007) 2 SCC 1

[YK Sabharwal, CJ and Ashok Bhan, Dr Arijit Pasayat, BP Singh SH Kapadia, CK Thakker, PK
Balasubramanyam, Altamas Kabir and DK Jain, JJ]

Issue: The fundamental question decided in this case was whether on and after 24 -4-1973 (date
the judgment in Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461) when the basic
structure doctrine was propounded, is it permissible for Parliament under Article 31-B to
immunise legislations by inserting them into the Ninth Schedule and, if so, what was its effect on
the power of judicial review of the court.

Article 31-B 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.

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, the Supreme Court has been vested with the power to ensure
compliance with Part III. The responsibility to judge the constitutionality of all laws is that of
judiciary.

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 the basic structure
then it will be struck down. The extent of abrogation and limit of abridgment shall have to be
examined in each case. 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

Identity Test or Essence of Rights test

The doctrine of basic structure contemplates that there are certain parts or aspects of the
Constitution including Article 15, Article 21 read with Articles 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 asindicated by the
synoptic view of the rights in Part III. In Indira Gandhi 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. When in a controlled Constitution conferring
limited power of amendment, an entire chapter is made inapplicable, ―the essence of right‖ test
as applied in M. Nagaraj case will have no applicability.

Impact Test or Rights Test

In a situation where the entire equality code, freedom code and right to move court under Part III
are all nullified by exercise of power to grant immunisation at will by Parliament which, in our
view, is incompatible with the implied limitation of the power of Parliament. In such a case, it is
the rights test that is appropriate and is to be applied. 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.

This Court being bound by all the provisions of the Constitution and also by the basic structure
doctrine has necessarily to scrutinise 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.

SR Bommai v Union of India, 1994

The material on the basis of which Council of Ministers advise to President may be reviewed by
Supreme Court

Right to Life

Francis Coralie Mullin v. Administrator, Union Territory of Delhi (1981) 1 SCC 608
The right to live with dignity has been recognized as a part of Article 21. The Court observed:
The question which arises is whether the right to life is limited only to protection of limb or
faculty or does it go further and embrace something more. We think that the right to life includes
the right to live with human dignity and all that goes along with it, namely, the bare necessaries
of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and
expressing one-self in diverse forms, freely moving about and mixing and commingling with
fellow human beings. Of course, the magnitude and content of the components of this right
would depend upon the extent of the economic development of the country, but it must, in any
view of the matter, include the right to the basic necessities of life and also the right to carry on
such functions and activities as constitute the bare minimum expression of the human-self. Every
act which offends against or impairs human dignity would constitute deprivation pro tanto of this
right to live and it would have to be in accordance with reasonable, fair and just procedure
established by law which stands the test of other fundamental rights. Now obviously, any form of
torture or cruel, inhuman or degrading treatment would be offensive to human dignity and
constitute an inroad into this right to live and it would, on this view, be prohibited by Article
21 unless it is in accordance with procedure prescribed by law, but no law which authorises and
no procedure which leads to such torture or cruel, inhuman or degrading treatment can ever stand
the test of reasonableness and non-arbitrariness: it would plainly be unconstitutional and void as
being violative of Articles 14 and 21.‖

In Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545, Chandrachud C J, while
explaining the ambit of Article 21 found a rationale for protecting the right to livelihood as an
incident of the right to life.

In Unnikrishnan v State of Andhra Pradesh (1993) 1 SCC 645, Justice Jeevan Reddy,
speaking for this Court, held that though the right to education (as the Constitution then stood)
was not ―stated expressly as a fundamental right‖ in Part III, that would not militate against its
being protected under the rubric of life under Article 21.

Vishaka v State of Rajasthan, (1997) 6 SCC 241

Bhanwari Devi was a social worker in a programme initiated by the state government of
Rajasthan aiming to curb the evil of Child Marriage. Amidst, the protest to stop a child marriage
in one Ramakant Gujjar‘s family Bhanwari Devi tried her best to stop that marriage. However,
the marriage was successful in its completion even though widespread protest. In 1992, to seek
vengeance upon her, Ramakant Gujjar along with his 5 men gang raped her in front of her
husband. The police department at first tried to dissuade them on filing the case on one pretext or
other but to her determination; she lodged a complaint against the accused. They were however,
subjected to harsh cruelty by the female police attendants even to the extent that for procuring
evidence her lehenga was demanded from her and she was left with nothing but her husband‘s
blood – stained dhoti. Adding to their misery, their request to spend the night in the police station
was also refused.

The trial court acquitted the accused but she didn‘t lose hope and seeing her determination all
female social workers gave their support. They all filed a writ petition in Supreme Court of India
under the name „Vishakha‟. The state authorities had refused to help her, saying as her employer,
they were not responsible since she was assaulted in her fields. The apex court was called upon
to frame guidelines for preventing Sexual Harassment at Workplace. The appeal in the High
Court is pending since 22 years.

In this case Supreme Court issued guidelines for protection of women against sexual harassment
at the workplace. On the basis of these guidelines Protection of Women Against Sexual
Harassment at work place Act was enacted by Parliament.
Gender Equality finds place in Fundamental Rights enshrined under Article 14, 19 & 21. Sexual
Harassment at Workplace is a clear violation of gender Equality which in turn violates these
integral rights of the female class. Such harassment also results in the freedom provided under
Article 19(1)(g). The protection of females has become a basic minimum in nation across the
globe.
In the absence of domestic law to curb the evil, assistance could be rendered from International
Conventions and Statues to the extent that it does not contravenes with any domestic law or the
do not violates the spirit of Constitution. The Judiciary derived this authority from Article 51(c)
and 253 r/w Entry 14 of the Union List of Seventh schedule of the Constitution. The court held
that such violation therefore attracts the remedy u/a 32.

51. Promotion of international peace and security.—The State shall endeavour to—
…..
(c) foster respect for international law and treaty obligations in the dealings of organised peoples
with one another; and

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.

73. Extent of executive power of the Union.—(1) Subject to the provisions of this Constitution,
the executive power of the Union shall extend—
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government
of India by virtue of any treaty or agreement:
Provided that the executive power referred to in sub-clause (a) shall not, save as expressly
provided in this Constitution or in any law made by Parliament, extend in any State2*** to
matters with respect to which the Legislature of the State has also power to make laws.

141. Law declared by Supreme Court to be binding on all courts.—The law declared by the
Supreme Court shall be binding on all courts within the territory of India.

The apex court found authority in filling the legislative gap by making law so as to maintain the
Independence of Judiciary and its role envisaged under Beijing Statement of Principles and
Independence of Judiciary in LAWASIA region which was signed by the Chief Justice of the
Asia Pacific in 1995 as those representing the minimum standards necessary to be observed in
maintain an independent and effective Judiciary.

The judiciary found the following as source of the guidelines which would act as law of the land:
Convention on the Elimination of all forms of Discrimination against Women (Article 11 & 24)

General recommendations of CEDAW in this context (Article 11,22,23,24)

At the 4th World Conference on Women in Beijing, Govt. of India made an official commitment
to set up a National Commission at every level and in every sector that will look after Women‘s
Rights.
The Supreme Court inter alia, clearly mentioned that the guidelines were to be treated as law
declared Article 141.

Naz Foundation v Govt of NCT of Delhi, 2009

Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of
Articles 21, 14 and 15 of the Constitution.

Suresh Kumar Koushal v. Naz Foundation, Civil Appeal No. 10972 of 2013
Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by
the Division Bench of the High court is legally unsustainable. The Court had observed that
Section 377 affected only a “minuscule fraction of the country‟s population”. On this basis, it
refused to strike down the provision.

National Legal Services Authority v Union of India, AIR 2014 SC 1863

In a landmark judgment the Supreme Court in April, 2014 recognised transgender persons as a
third gender and ordered the government to treat them as minorities and extend reservations in
jobs, education and other amenities.

Under Articles 15 and 16, discrimination on the ground of ―sex‖ is explicitly prohibited. The
Court held that ―sex‖ here does not only refer to biological attributes (such as chromosomes,
genitalia and secondary sexual characteristics) but also includes ―gender‖ (based on one‘s self-
perception). Thus, the Court held that discrimination on the ground of ―sex‖ included
discrimination on the basis of gender identity.

Thus, the Court held that transgender persons were entitled to fundamental rights under Articles
14, 15, 16, 19(1)(a) and 21 of the Constitution. Further, the Court also referred to core
international human rights treaties and the Yogyakarta Principles to recognise transgender
persons‘ human rights. India is signatory to Yogyakarta Principles.

Yogyakarta Principles- Published in November of 2006 as an outcome of an international

meeting of experts in Yogyakarta, Indonesia. The Yogyakarta Principles address a broad range
of human rights standards and their application to issues of sexual orientation and gender
identity. The principles were developed by a panel of human rights experts in the domain of
gender and sexuality, who represented their individual countries.

The principles recognise that all human beings are born free and equal in dignity and rights. It
affirms that sexual orientation and gender identity constitute an integral part of human dignity. In
the spirit of the Universal Declaration of Human Rights, the principles recognise that all human
rights are universal, interdependent, indivisible and interrelated.

The Court held that public awareness programs were required to tackle stigma against the
transgender community. It also directed the Central and State Governments to take several steps
for the advancement of the transgender community, including:
 Making provisions for legal recognition of ―third gender‖ in all documents
  Recognising third gender persons as a ―socially and educationally backward class of
citizens‖, entitled to reservations in educational institutions and public employment.
 Taking steps to frame social welfare schemes for the community

Justice K.S. Puttaswamy Vs. Union Of India (2017) 10 SCC 1

A three-judge bench held that a larger bench should determine whether the Constitution of India
guarantees a right to privacy. A nine-judge bench decided this case consisting of Justice J.S
Khehar (CJI), Justice Jasti Chelameswar, Justice D Y Chandrachud, Justice Rohinton Nariman,
Justice R K Agarwal, Justice Sanjay Kishan Kaul, Justice A Nazeer, Justice Sa Bobde, Justice A
M Sapre.

The Court considered whether the right to privacy is a part of the right to life and personal liberty
under Article 21 of the Constitution. It arises in the context of a constitutional challenge to the
Aadhaar project, which aims to build a database of personal identity and biometric information
covering every Indian – the world‘s largest endeavour of its kind.

The Rights Framework: The Court held that privacy is an attribute of human dignity. The right
to privacy safeguards one‘s freedom to make personal choices and control significant aspects of
their life. In addition, it noted that personal intimacies (marriage, procreation and family),
including sexual orientation, are at the core of an individual‘s dignity.

Further, the Court described discrimination on the basis of sexual orientation as ―deeply
offensive to dignity and self-worth‖. It noted that the right to privacy was at the intersection of
Articles 15 and 21 of the constitution, by referring to its decision in NALSA which grants the
right to self-recognition of gender. It stated that the right to privacy was an expression of
individual autonomy, dignity, and identity.

Therefore, the right to privacy and sexual orientation is at the core of the right to equality, non-
discrimination and life. The Court held that the identity of all individuals must be protected
without discrimination because sexual orientation is an essential component of one‘s identity.
The Court observed that the right to privacy is primarily derived from Article 21. However, it is
also supplemented by the values enshrined in other fundamental rights. Therefore, it advocated
for a holistic view of fundamental rights.

Natural Rights: The Court acknowledged that certain rights are not bestowed by the State but
are inhered by a person by virtue of being human. All individuals have natural rights,
irrespective of their class, economic status, gender or sexual orientation. Significantly, the right
to self-determine sexual orientation was also recognised as a natural right.

India‟s International Obligations: The Court urged India to adhere to the international human
rights regime. This argument was based on Article 51 of the Constitution which requires the state
to respect International Law. More specifically, the Court noted that the right to privacy was
guaranteed under Article 12 of the Universal Declaration of Human Rights and Article 21 of
the International Convention on Civil and Political Rights.
The Court also relied on NALSA, which applied the Yogyakarta Principles, to hold that in the
absence of a specific prohibition, international principles which are aligned with the Constitution
must be read into fundamental rights.

Striking down the decision in „Suresh Koushal v. Naz Foundation‟: In Suresh Kumar
Koushal vs. Naz Foundation, the Supreme Court had rejected a challenge to Section 377 of the
Indian Penal Code. The case had argued that Section 377 violated the right to dignity and to
privacy. Then, the Court had observed that Section 377 affected only a ―minuscule fraction of
the country‘s population‖. On this basis, it refused to strike down the provision.

In contrast, the Court held that majoritarian opinion could not determine the exercise of
fundamental rights. In other words, whether a law violated the right to privacy did not depend
on the number of people affected by the law. Further, the Court argued that this standard was
unsustainable and likely to amount to a grave violation of an individual‘s right to equality.

Additionally, it noted that LGBT rights were founded on the right to life, privacy, and dignity,
and were founded on sound Constitutional doctrine.

Not an Absolute Right: The Court held that similar to the right to life and personal liberty, the
right to privacy may be limited by a procedure established by law. The invasion of privacy must
be through a fair, reasonable and just procedure. It must meet the three conditions of legality, the
existence of a legitimate state aim and proportionality. Legitimate state aims would include
national security concerns, preventing and investigating crime, and preventing the dissipation of
social welfare benefits.

The judgment was written by Dr D Y Chandrachud, J on behalf four judges out of nine judges.
Rest 5 judges gave their separate and consenting judgments.
1 The judgment in M P Sharma holds essentially that in the absence of a provision similar to the
Fourth Amendment to the US Constitution, the right to privacy cannot be read into the provisions
of Article 20 (3) of the Indian Constitution. The judgment does not specifically adjudicate on
whether a right to privacy would arise from any of the other provisions of the rights guaranteed
by Part III including Article 21 and Article 19. The observation that privacy is not a right
guaranteed by the Indian Constitution is not reflective of the correct position. M P Sharma is
overruled to the extent to which it indicates to the contrary.

2 Kharak Singh has correctly held that the content of the expression ‗life‘ under Article 21 means
not merely the right to a person‘s ―animal existence‖ and that the expression ‗personal liberty‘ is
a guarantee against invasion into the sanctity of a person‘s home or an intrusion into personal
security. Kharak Singh also correctly laid down that the dignity of the individual must lend
content to the meaning of ‗personal liberty‘. The first part of the decision in Kharak Singh which
invalidated domiciliary visits at night on the ground that they violated ordered liberty is an
implicit recognition of the right to privacy. The second part of the decision, however, which
holds that the right to privacy is not a guaranteed right under our Constitution, is not reflective of
the correct position. Similarly, Kharak Singh‘s reliance upon the decision of the majority in
Gopalan is not reflective of the correct position in view of the decisions in Cooper and in
Maneka. Kharak Singh to the extent that it holds that the right to privacy is not protected under
the Indian Constitution is overruled.

3 (A) Life and personal liberty are inalienable rights. These are rights which are inseparable from
a dignified human existence. The dignity of the individual, equality between human beings and
the quest for liberty are the foundational pillars of the Indian Constitution;

(B) Life and personal liberty are not creations of the Constitution. These rights are recognised by
the Constitution as inhering in each individual as an intrinsic and inseparable part of the human
element which dwells within;

(C) Privacy is a constitutionally protected right which emerges primarily from the guarantee of
life and personal liberty in Article 21 of the Constitution. Elements of privacy also arise in
varying contexts from the other facets of freedom and dignity recognised and guaranteed by the
fundamental rights contained in Part III;

(D) Judicial recognition of the existence of a constitutional right of privacy is not an exercise in
the nature of amending the Constitution nor is the Court embarking on a constitutional function
of that nature which is entrusted to Parliament;

(E) Privacy is the constitutional core of human dignity. Privacy has both a normative and
descriptive function. At a normative level privacy sub-serves those eternal values upon which the
guarantees of life, liberty and freedom are founded. At a descriptive level, privacy postulates a
bundle of entitlements and interests which lie at the foundation of ordered liberty;

(F) Privacy includes at its core the preservation of personal intimacies, the sanctity of family life,
marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left
alone. Privacy safeguards individual autonomy and recognises the ability of the individual to
control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to
privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture.
While the legitimate expectation of privacy may vary from the intimate zone to the private zone
and from the private to the public arenas, it is important to underscore that privacy is not lost or
surrendered merely because the individual is in a public place. Privacy attaches to the person
since it is an essential facet of the dignity of the human being;

(G) This Court has not embarked upon an exhaustive enumeration or a catalogue of entitlements
or interests comprised in the right to privacy. The Constitution must evolve with the felt
necessities of time to meet the challenges thrown up in a democratic order governed by the rule
of law. The meaning of the Constitution cannot be frozen on the perspectives present when it
was adopted. Technological change has given rise to concerns which were not present seven
decades ago and the rapid growth of technology may render obsolescent many notions of the
present. Hence the interpretation of the Constitution must be resilient and flexible to allow future
generations to adapt its content bearing in mind its basic or essential features;

(H) Like other rights which form part of the fundamental freedoms protected by Part III,
including the right to life and personal liberty under Article 21, privacy is not an absolute right.
A law which encroaches upon privacy will have to withstand the touchstone of permissible
restrictions on fundamental rights. In the context of Article 21 an invasion of privacy must be
justified on the basis of a law which stipulates a procedure which is fair, just and reasonable. The
law must also be valid with reference to the encroachment on life and personal liberty under
Article 21. An invasion of life or personal liberty must meet the three-fold requirement of
(i) legality, which postulates the existence of law;
(ii) need, defined in terms of a legitimate state aim; and
(iii) proportionality which ensures a rational nexus between the objects and the means adopted to
achieve them; and

(I) Privacy has both positive and negative content. The negative content restrains the state from
committing an intrusion upon the life and personal liberty of a citizen. Its positive content
imposes an obligation on the state to take all necessary measures to protect the privacy of the
individual.

4 Decisions rendered by this Court subsequent to Kharak Singh, upholding the right to privacy
would be read subject to the above principles.

5 Informational privacy is a facet of the right to privacy. The dangers to privacy in an age of
information can originate not only from the state but from non-state actors as well. We commend
to the Union Government the need to examine and put into place a robust regime for data
protection. The creation of such a regime requires a careful and sensitive balance between
individual interests and legitimate concerns of the state. The legitimate aims of the state would
include for instance protecting national security, preventing and investigating crime, encouraging
innovation and the spread of knowledge, and preventing the dissipation of social welfare
benefits. These are matters of policy to be considered by the Union government while designing
a carefully structured regime for the protection of the data. Since the Union government has
informed the Court that it has constituted a Committee chaired by Hon‘ble Shri Justice B N
Srikrishna, former Judge of this Court, for that purpose, the matter shall be dealt with
appropriately by the Union government having due regard to what has been set out in this
judgment.

Wider interpretation of Right to Life under Article 21

The rights which have been held to flow out of Article 21 include the following:
1. The right to go abroad - Satwant Singh Sawhney v D Ramarathnam APO New Delhi (1967) 3
SCR 525
2. The right to privacy - Gobind v. State of M.P., (1975)2 SCC 148. In this case reliance was
placed on the American decision in Griswold v. Connecticut, 381 US 479 at 510.
3. The right against solitary confinement and freedom from torture - Sunil Batra v Delhi
Administration (1978) 4 SCC 494
4. The right of prisoners against bar fetters - Charles Sobraj v Supdt. Central Jail (1978) 4 SCC
5. The right to legal aid - M H Hoskot v State of Maharashtra (1978) 3 SCC 544
6. The right to bail - Babu Singh v. State of Uttar Pradesh (1978) 1 SCC 579
7. The right to speedy trial - Hussainara Khatoon v Home Secretary, St of Bihar (1980) 1 SCC 81
8. The right against handcuffing - Prem Shankar Shukla v Delhi Admn. (1980) 3 SCC 526
9. The right against custodial violence - Sheela Barse v State of Maharashtra (1983) 2 SCC 96
10. Right to compensation for unlawful arrest - Rudal Sah v State of Bihar (1983) 4 SCC 141
11. The right against delayed execution - TV Vatheeswaran v. State of TN, (1983) 2 SCC 68.
12. Right to earn a livelihood - Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545
13. The right against public hanging - A G of India v Lachma Devi (1989) Suppl.(1) SCC 264
14. Right to doctor‘s assistance at government hospitals (Medical care) - Paramanand Katara v
Union of India (1989) 4 SCC 286
15. Right to shelter - Shantistar Builders v N K Totame (1990) 1 SCC 520
16. The right to know – Reliance Petrochemicals Ltd v. Proprietors Indian Express Newspapers
(1988) 4 SCC 592
17. The right to pollution free water and air - Subhash Kumar v. State of Bihar (1991) 1 SCC 598
18. The right against illegal detention - Joginder Kumar v. State of UP (1994) 4 SCC 260
19. The right to a healthy environment - Virender Gaur v. State of Haryana (1995) 2 SCC 577
20. The right to health and medical care for workers - Consumer Education and Research Centre
v. Union of India (1995) 3 SCC 42
21. The right to a clean environment - Vellore Citizens Welfare Forum v. Union of India (1996)
5 SCC 647
22. The right against sexual harassment - Vishaka v. State of Rajasthan & ors. (1997) 6 SCC 241
23. The right against noise pollution - In Re, Noise Pollution (2005) 5 SCC 733
24. The right to fair trial - Zahira Habibullah Sheikh v. State of Gujarat & Ors. (2006) 3 SCC 374
25. The right to sleep - In Re, Ramlila Maidan Incident (2012) 5 SCC 1
26. Right to reputation - Umesh Kumar v State of Andhra Pradesh (2013) 10 SCC 591

Navtej Singh Johar Vs. Union Of India Writ Petition (Criminal) No. 76 Of 2016
Chief Justice Dipak Misra, Justice Rohington Nariman, Justice D Y Chandrachud, Justice A M
Khanvilkar, & Justice Indu Malhotra

Section 377 of the Indian Penal Code (IPC) criminalised consensual sexual intercourse between
persons of the same sex for being ―against the order of nature‖.

Five individuals from the LGBTQ communities (Navtej Singh Johar, Ritu Dalmia, Ayesha
Kapur, Aman Nath and Sunil Mehra) filed a new writ petition challenging the constitutionality of
Section 377. The Court deliberated on the soundness of the Koushal decision. It also considered
whether Section 377 violates:
 Article 14 as it discriminates against individuals on the basis of their ―sexual orientation‖ and
―gender identity‖?
 The right to autonomy and dignity under Article 21 by penalizing private consensual acts
between same-sex persons?
 The right to expression under Article 19(1)(a) by criminalizing the gender expression of the
LGBTQI+ community?

All five judges overruled Koushal. The Court drew on the doctrine of progressive realisation of
rights to hold that rights should not be revoked. The march of a progressive society should only
be forward. The Court also noted the guarantee of a fundamental right to privacy in Justice K. S.
Puttaswamy (Retd.) vs Union Of India and held that Koushal‘s finding that Section 377 affected
only a ‗miniscule minority‘ cannot be the basis to deny the right to privacy. It observed that
minorities face discrimination because their views and beliefs do not align with the majority and
the Koushal decision violated the right of all persons to equal protection.

The Litmus Test for Survival of Section 377: The Supreme Court tested the constitutionality of
Section 377 against the principles of equality, liberty, dignity under Articles 14, 19 and 21.

Right to Equality and Non-Discrimination: The Court observed that Section 377 arbitrarily
punishes individuals who engage in same sex relationships. To substantiate this, the Court noted
that Section 377 classifies and punishes individuals who engage in carnal intercourse against the
order of nature to protect women and children. However, this objective has no reasonable nexus
with the classification, as unnatural offences have also been separately penalised under Section
375 and the POCSO Act. Therefore, the Court held that the unequal treatment of LGBT
individuals violates Article 14.Further, the Court held that Section 377 is manifestly arbitrary as
it does not distinguish between consensual and non-consensual sexual acts between adults.
It targeted people exercising certain choices and treated them as ―less than humans‖ and
encouraged prejudices and stereotypes accompanied by debilitating social effects. This violates
Article 14, which is the very basis of non-discrimination.

Freedom of Expression: The Court acknowledged that all persons, including LGBTQI
individuals, had the right to express their choices without any fear. It recognized same-sex
sexuality as a normal variant of human sexuality. In particular, the Court noted that Section 377
stigmatises and discriminates against transgender persons.Next, the Court tested whether public
order, decency and morality are reasonable grounds to restrict the right to freedom of expression
of sexuality under Article 19(1)(a). It noted that Section 377 criminalises private consensual acts
which neither disturb public order, nor injure public decency or morality. Sexual acts cannot be
viewed solely from the lens of morality where they are seen to be purely for procreation. An
unreasonable restriction on acts within a person‘s private space will have a chilling effect on
freedom of choice.For these reasons, the Court held that Section 377 is disproportionate and
violates the fundamental right to freedom of expression.

Right to Life and Personal Liberty: The Court held that Section 377 violates human dignity,
decisional automony and the fundamental right to privacy. Every individual has the liberty to
choose their sexual orientation, seek companionship and exercise it within their private space. As
Section 377 inhibits the exercise of personal liberty to engage in voluntary sexual acts, it violates
Article 21. It socially ostracises LGBT persons and does not permit full realisation of their
personhood.Denying the right to determine one‘s sexual orientation curtails the right to privacy
of an individual. Therefore, the Court held that the scope of the right to privacy must be widened
to incorporate and protect ‗sexual privacy‘.

“the Order of Nature”: Section 377 criminalises ‗unnatural sex‘ which is ―against the order of
nature‖. The Court held that such a classification between natural and unnatural intercourse is
not legally valid. Naturalness should not determine the legality or acceptance of a phenomenon.
Penal consequences for an act that is unnatural or wrong cannot be imposed without sufficient
justification.
Constitutional Morality: The Court described ‗constitutional morality‘ as the ideals and morals
of the Constitution and the values that create an inclusive society. It recognized the Constitution
as a tool to transform society. A decision on whether a penal provision violates fundamental
rights must be guided by the principles of constitutional morality and not societal morality.
Where a constitutional court finds that a provision violates constitutional morality, it must be
struck down.

Yogyakarta Principles: The Court observed that India is a signatory to the Yogyakarta
Principles which prohibits discrimination on the grounds of sexual orientation and gender
identity. NALSA vs. Union of India also relied on these principles, though they are not binding,
to uphold the right of non-discrimination on the grounds of gender identity. Relying on the
Yogyakarta Principles and NALSA, the Court held that Section 377 does not conform with
India‘s international obligations.

Conclusion: The Court upheld the right to equal citizenship of all members of the LGBTQI
community in India. Thus, it read down Section 377 to exclude consensual sexual relationships
between adults, whether between same-sex individuals or otherwise. Section 377 will continue to
apply to non-consensual sexual activity against adults, sexual acts against minors and bestiality.

The Government of India notified the Information Technology (Intermediary

Guidelines and Digital Media Ethics Code) Rules, 2021. The operation of these rules
would be in supersession of the existing intermediary liability rules under the
Information Technology (IT) Act, made back in 2011.