8.07.

2020
Method of interpretation leading to ideological positions, not fixed to text or particular time, more
to do with the social situation and the person reading the text,
● Conservatist approach to Constitutionalism : continuity, preserve traditional social
institutions, org religion, stability, growth over personal liberty (different from liberals)
● Liberal Constitutionalism: Personal Liberty - certain rights are inalienable and law must
safeguard those rights against arbitrary action by state through, say, fair trial (civil political
rights that citizens get)
○ 3rd gen rights & 2nd gen: 2nd gen is available to a certain people, 3rd gen available
to an entire political community (right to clean environment)
○ Rights elevated: not really available to citizens (india: deep differences based on
caste) Marx(Critique of Liberal Constitutionalism): the very framing of rights seems
to have a bourgeois perspective - rights to be restructured based on what the
Constitution seeks to do.
● Transformative Constitutionalism: In India: decolonisation, transformation not limited
to political sphere (economic, social) (landowners on surplus land, imp for govt to identify
and acquire land and redistribute it - economic transformation)

Pratap Bhanu Mehta

Ambedkar’s way of transformation: Constitutional Morality -
● Transformative objectives to Constitution : Decolonisation etc (Political trans.),
economic liberalisation, agriculture reforms (econ, social reforms)
● CM - not descriptive sense, differentiating what consti seeks to do from existing social
practice, tied to social transformation (other trans are controlled), anti-discrimination -
element of social transformation, bringing social change is also important, overarching goal
of constitution (Austin).
● Moral & practical reasons: Moral has an “other” regarding character(not just invoking my
own self interest, but interest of others) to obey authority: to whom are duties entailed?
Practical reasoning: grounded in self-reasoning (whether or not that action will benefit you).
This distinction becomes complicated when decisions are being made under duress. Eg:
announcing lockdown on priority basis, consultative procedures weren’t consulted.
When we
● Practical reasons: to obey law stems out of self interest, eg: distinction between both lies
in whether it is a moral obligation to pay taxes or bc otherwise i’ll get punished? (Oliver)
● Practical Authority:
○ Empirical claims to authority: customs., group practices, makes sense for us to go
along; bandwagon effect
 ○ Juristic authority(of experts): people deriving authority from elective support do
have to consult experts, invoking will of people + opinion of experts = decision
making

● Adoption of Constitutional text, acceptance of authority: cannot get away with these
questions of political and legal theory(fairness, distribution)
○ John Rawls: Idea that liberal democracy can only rely on popular support was
sought to be modified, he was trying to create justification for a welfare state, tried
to foreground how there are moral duties towards other marginalised citizens.
○ Modern constitutional democracy, the principle of consent cannot be a justification
for authority of state, there will always be groups that do not agree to the dominant
political framework.
● Ambedkar’s CM different from conventional forms of morality:

○ Existing religious texts (Manusmriti): defining forms of morality, justifying,

ritualised, authorised gender and caste discrimination
○ Trusting Constitution to act as a countermajoritarian instrument - Ambedkar
disagreeing with central premise of older political theories (social contract theory)
○ Assumption(mostly positivists) about law is that it is a majoritarian instrument
and if it is in violation of what the majority wants, we'd have a radically destabilized
society. Ambedkar was of the opinion that the coercive force of law(due to threat of
sanctions) should be used to manipulate/ alter majoritarian will (their conception of
what's moral/right) rather than understanding law as implementing what the
majority thinks is moral/right. This idea flies in the face of most positivist ideas of
law.
● Counter Majoritarian legal regimes by Ambedkar: Declaration of sovereign and the
state to abolish untouchability - will that be followed by majority? Through this anti
majoritarian legislation, minority’s interests gets imposed on majority and gets sanctioned
through command and punishment that is prerogative of the sovereign (which is being
manipulated by minority in order to alter conception of justness of majority) It doesn’t
express the general will, it alters the general will: Constitution
○ Ambedkar - Hindu Code - codifying family code eliminating gender discrimination
(fault based divorces, structural inheritance)
 ○ Fundamental Insight from Ambedkar’s word: structure of law should provide
protection for vulnerable minorities

● CM- not restricted to drafting of text, seeks to demand statutory/legislative reforms,

overarching reforms
○ Attempt at creating a new standard of CM (dislocate popular forms of morality), it
should be understood as an interpretative approach (keeps changing wrt social
situation and the way it’s interpreted)
○ For eg: Anti Discrimination Laws to be read to cover disability or sexual orientation
(interpreation); absence creates a scope for discretionary power
○ Not a static, textual understanding of the provisions, but constructive approach to
tackle discrimination in society
○ CM normative values, provisions to be created, judicial powers to be used,
continuing process
○ There’s also protection of religious minorities - they need to consolidate and exercise
their voice, since the existing social structure largely dominated by Upper Caste
groups
○ Forms of Constitution - locate specificities of CM, distinction between substantive
& process oriented view of Consti, in terms of scope for use of discretionary power
or silence
09.07.2020
● Reading’s specific claim: process centric view of CM; emphasis on processes of decision
making and government structures as central elements of constitutionalism
● Forms: processes, structure of government to pursue substantive policy goals; distinction
between substantive (methods) and procedural (goal of that policy) aspect of law; between
means and ends; process of interpretation; no elaborate specific procedural laws -- but
contemplation of explicit processes of decision making (rule making by admin branch);
authoritative decision making structures to be constituted; emphasis on structures of
decision making; substantive emphasis on key moral principles.

● Constitutional Morality found contemporary institutional public resonance when

it was cited by Justice Shah in the Naz foundation case(2009): Consensual acts
shouldn’t be criminalised by law; argument based on art. 14; constructive reading of anti
 discrimination of law; argument about curtailment of liberty(difficulty in accessing health
care etc), freedom of expression of sexual orientation.

○ 2018: Navtej Johar -- Position taken by Delhi HC is restored.

○ Engage in a structural analysis to look at a constructive goal against newer found
forms of discrimination
○ Invoking CM more often in the recent years; historically, at the time of drafting,
Ambdekar was playing a lone hand wherein it was more important for him to
recognise an interpretative approach or a process oriented view.
● Self Restraint and Freedom: Right based claims made by which group of people? Amb
deeply skeptical of agitational or revolutionary politics; distinguishing from MKG’s
methods of mobilisation entrenched in our nationalist history; Ambedkar believed in
engagement with pre-existing constitutional forms; accepting forms of punishment
stemming from it; he chose to participate in various institutions of colonial state for
incremental solutions for the community that he was representing.
○ Separate electorates for depressed classes: solution for lack of representation within
existing constituencies; Ramsay McDonald award made this possible, but Gandhi
criticised this a lot, which consequently led to the Poona Pact, wherein the separate
electorate for the marginalised communities was rescinded.
○ Methods of mobilisation to expand personal freedom(ambedkar): he started moving
towards popular forms of mobilisation (his resignation); organise mass conversion
in mahar community (to buddhism); confrontational politics and populist
mobilisation -- problem in how to understand Ambedkar’s legacy then. He started
to prefer agitationist methods in later stages of his life.
○ Expanding personal freedom and pursuing social equality.
● PBM: no mediation between different groups; because -- different subjective views; in
engaging in consti government; it is not possible for subjective preferences of
individuals/groups to reflect in institutional solutions
○ Common ground: method for negotiation between differences; unanimity wrt
process of adjudication allowed by the Constitution
 ○ Skeptical about distributive justice for everyone’s welfare; prepare for results
different from expectations
○ Centrist view of politics
○ Ambedkar: Path of institutional engagement to achieve objective goals of different
interest groups (which changed later due to his disillusionment with Congress)
○ Suspicion of unilateral claims of popular sovereignty: no one institution or
body represents unbridled populism leading out of leaders invoking popular
support; personality of charismatic leader shifting away attention from
institutionalised decision making; parliamentary is a better form of government as a
check on these leaders as opposed to presidential form of government (judicial
glorification); parliamentary democracy; non-elected representatives don’t
necessarily have answers or solutions.
○ Personifying authorities facing populist pressure

10.07.2020
● Quality of working with each other despite entrenched differences - political sensibilities
needed to work towards building a constitution or working together in politics
● When do constitutions decline and fail? Armed conflict; civil wars; overhauled in the
wake of criticism; rise of populist parties - creeping authoritarianism - charismatic leaders
(hungary - leaders not interested in check of their power); expansive use of executive power
- India;

Aditya Nigam - A Text without Author: Locating Constituent Assembly as an Event

● Is creation of consti just a break of past or is it a self fulfilling narrative rather than objective
method of inquiry
○ To justify new forms of governance; mark transition from older period
○ Consti: self-validating document
○ CA based on limited franchise; legal sense- CA had elaborate deliberations; came out
with a document with subsequent steps legitimising the framework
○ CA - Diversity in positions - polyphonic; multiple voices; voice of og author
becomes less relevant than when it’s being read and interpreted; representation of
text in popular culture; text without author
○ Remove emphasis on what framers meant, and instead read constitution in an
abstract way; can their key principles be used to address specific and concrete
problems that we face today - imaginative reconstruction
● Notable absences in CA: MKG(tackling communal riots; seeking a homogenous nation
and unity between Hindu and Muslims), ML, State Representatives (princely states)
 ○ Absence in structure; problem with representation
○ Lack of effective representation with respect to the Princely states, since the
representative did not always embody the popular opinion.
○ CA functioned in a way that sidelined the representation of Muslims and Dalits
(heckling; booing - even when the representation sought national interest instead of
communal goals; branded as seeking the two-nation goal). Could be seen that
attempts to bring about a national identity brought about the oppression of the
minority communities.
○ Community based representation could lead to fragmentation - CA’s logic
○ Patel’s rebuttal to separate electorates: muslim separate electorates led to
fragmentation and doing so with other communities could lead to the same result;
ambedkar accepted quota electorates - but the candidates had to appeal to
other(dominant) community interests as well.
○ Centralised government structure: Because of partition on religious lines, it
became easier for framers to create such a centralised structure (parliamentary
instead of presidential); seeking a homogenous national identity came at a cost of
branding minorities as regressive. The idea of integration causes the ignoring of
community based differences, which subsequently leads to harming the interests of
the minority communities; need not only accommodative politics but also politics
of recognition to enable them to protect their own interests. Representative
democracy and distributive justice needs minority interests to be recognised in
governance.
Individual centric approach v. group centric approach

13.07.2020
Citizenship
Persons and Citizens in Constitutional Thought - Bosniak
Between personhood and citizenship, the former is a preferable concept, despite both being
constructs, because the chance of exclusion is less.
Whether they are aligned concepts? Who makes claims?
The Constitution contains acknowledgement of core fundamental broader rights for all persons,
specific political rights assured to citizens.

Personhood- Independent of national status - Universal.

Citizenship - National belonging and associated rights - Exclusionary.
Both are constructed by law and politics, construct them as aligned concepts, to prevent exclusion
by law.
Central Argument - If we look at citizens and persons as different concepts, does it help further
our understanding of the constitution? Are they aligned concepts? Irrespective of whether or not an
individual is a citizen or person it puts certain obligations on the State. Neither persons or citizens
are naturally created - something constructed by law and politics in the context of State. [Eg:
Encounter; Engagement of the State w citizens, the argument against exercise of such power comes
from the idea that you’re denying personhood by taking away edifice of law and justice - Agamben’s
idea of individual being reduced to “bare life”] Counter’s Bickel’s argument that personhood, unlike
citizenship, cannot be taken away, by providing instances of degradation or erasure of personhood,
taking away from its value and making it count less. (Territorial, People v. Person, Emergency)

Constitutional Principle of Mutuality: Create persons and citizens in the context of state.
Exercise of power correspondingly entails constitutional responsibility to those affected. (Justice
Brennan)
Citizenship and personhood are aligned: better to talk about the ideas as constructs, focus on
personhood to move away from certain constructs that citizenship entails.
Personhood from Mutuality: Idea that doesn’t result in social exclusion through law; pushing
boundaries of exercising restraint on governmental power.
Constitutional Context should be Situational: Sabrimala - only the affected persons have the locus
standi. Where substantial power of the state is exercised, constitutional personhood should be
recognised. This is where the principle of mutuality arises.

Definition of citizenship tied with one’s understanding of constitution and state

Constitutional Personhood - Loosens geographic and conceptual frames. Wherever power is
exercised, directly or indirectly, the idea of personhood arises therein (reciprocal understanding of
rights that can be exercised against such power).
Personhood as Ethical Universalism: no longer confined to state sovereigns, a concept moving across
territorial boundaries.
Age of cosmopolitanism (Neera Chandhoke): The obligations we owe not only to the citizens of our
nations but to the global community. Later on, as right wing populists started to strengthen the ideas
of exclusionary nationalism, focussing on national security and developing a suspicion of migrants
and minorities. The divide between insiders and outsiders was strengthened. Citizenship and the
transition to narrower ideas of citizenship: Citizenship as a marker of inclusion (citizens with rights
and state’s accountability towards you) but the focus changed to the person claiming citizenship and
associated rights to be able to prove whether or not he is a citizen. With such a shift, individual
responsibility to prove citizenship has become more important. Link between citizenship and class -
access to rights, amenities etc. Universal citizenship became a touchstone to the interpretation of
constitutional text with respect to citizenship.
Jus Sanguinis: ("right of blood") is a principle of nationality law by which citizenship is determined
or acquired by the nationality or ethnicity of one or both parents.
Jus Soli: Citizenship determined by place of birth.
Art 6 and 7: different modes of acquiring citizenship leading to exclusion of certain persons based
on different criteria. Provides resistance to any kind of constitutional amendment. To be read with
part 3. Parliament is subjected to judicial review, despite having plenary powers.
Neera Chandhoke - Seminar Magazine (2020) along w niraja jayal

Niraja Jayal - Citizenship

Citizenship Act - We’re moving away from jus soli (citizenship by birth) to jus sanguini (Neerja
Jayal) (Section 3)
Five ways: by birth, descent, registration, naturalisation, and incorporation of territory.
Section 4 and 5 - Registration - Illegal Immigrant - Distinction between overseas citizen of India and
a citizen by
Section 6A - Origin of attempt to identify or send out persons who could be illegal immigrants, a
tribunal had to be set up to identify these people.
IMDT was largely inefficient - Sarbananda Sonowal v. UOI (2005) 5 SCC 655 (Assam Accord)
IMDT said the burden of proof was on the State, SC struck down the IMDT Act, violative of Article
14 of the Constitution to the extent that the exception was based solely on geography rather than
any substantive connection with the object and policy of the Act. The question that concerned the
Court was with regards to the constitutional validity of the Act and especially the question of its
applicability only to the State of Assam, thus creating a state-specific exception to a national law.
Judiciary imputing a motive to a legislation, the act specifically seemed to have been designed to
protect and shelter illegal migrants rather than to identify and deport them. It fails to realise the
objective of the Act which was to identify and deport illegal migrants. Was it a federal principle
where the state would have expectations from the federal government?
Citizenship as a marker of organised rights, and a conception of community, is now based on
documentation. The shift of rules indicative of changes in principles. Rules made by statute are
moving away from the Jus soli principle.

Assam Sanmilita Mahasangha v. UOI - Decided in 2014

Section 6A was challenged on three levels:

• The statute is not designed correctly, and hence should be struck down on the grounds
of arbitrariness. (Internal Statute Challenge)
• The Statute violates a particular fundamental right in the constitution (Constitutional
Challenge)
 • It violates the basic premise and the fundamentals of the constitution (Basic Structure
Challenge)

13 grounds were raised challenging Section 6A of the Citizenship Act

(i) Whether Articles 10 and 11 of the Constitution of India permit the enactment of Section
6A of the Citizenship Act in as much as Section 6A, in prescribing a cut-off date
different from the cut-off date prescribed in Article 6, can do so without a "variation" of
Article 6 itself; regard, in particular, being had to the phraseology of Article 4 (2) read
with Article 368 (1)?
Whether this provision should be seen as a plenary power that can do anything? But
there are certain fundamental principles.
ii) Whether Section 6A violates Articles 325 and 326 of the Constitution of India in that it
has diluted the political rights of the citizens of the State of Assam;
The question of whether there is dual citizenship provision in India, citizenship of the
country and citizenship of the state(Assam).
– Can a particular state talk about its own culture in a particular manner that does
not talk about a particular culture of other states? What constitutes this particular
culture and who determines it?
– For the first time, you are talking about preserving a culture in the context of
individual state.

(iii) What is the scope of the fundamental right contained in Article 29(1)? Is the fundamental
right absolute in its terms? In particular, what is the meaning of the expression "culture"
and the expression "conserve"? Whether Section 6A violates Article 29(1)?
Whether 6A violates culture by providing for a different mode of acquiring citizenship.
– Article 29(1) is one of the least litigated and it talks about preservation of language
and culture. Is culture only in terms of language and script or is there a cultural
right; who can claim this cultural right and on whose behalf can cultural rights be
claimed.
– Indigenous people possessing a particular culture and then the need to protect that
particular culture. In the NIYAMGIRI case which was about mining in a particular
tribal area and it was interfering with some cultural practices; the court said that you
can’t do so.
– Link between culture and citizenship. And culture not in terms of larger groups but
culture in terms of state.
(iv) Whether Section 6A violates Article 355? What is the true interpretation of Article 355
of the Constitution? Would an influx of illegal migrants into a State of India constitute
 "external aggression" and/or "internal disturbance"? Does the expression "State"
occurring in this Article refer only to a territorial region or does it also include the people
living in the State, which would include their culture and identity?
(Taking off from the Sarbananda case) here we are not talking about influx of migrant
into a country but influx of migrant into a State of India (Assam).
– State is defined in an instrumentalist way: Idea of defining is to make sure that state
is accountable in terms of fundamental rights. (purpose of article 12 which defines
state) (the constitution doesn’t define a nation or a state but politically it has
received a lot of attention but in Constitutional law state is used for a particular
purpose which is to fix responsibility and liability)
– Article 355: the federal government has certain responsibility towards state
government. The federal government has abdicated its responsibility by having a
different method of acquiring citizenship with reference to Assam. What
responsibility, does the union government have the responsibility to protect the
culture of a particular State
(v) Whether Section 6A violates Article 14 in that, it singles out Assam from other border
States (which comprise a distinct class) and discriminates against it. Also whether there
is no rational basis for having a separate cut-off date for regularizing illegal migrants who
enter Assam as opposed to the rest of the country; and
(vi) Whether Section 6A violates Article 21 in that the lives and personal liberty of the citizens
of Assam have been affected adversely by the massive influx of illegal migrants from
Bangladesh.
(vii) Whether delay is a factor that can be taken into account in moulding relief under a
petition filed under Article 32 of the Constitution?
(viii) Whether, after a large number of migrants from East Pakistan have enjoyed rights as
Citizens of India for over 40 years, any relief can be given in the petitions filed in the
present cases?
(ix) Whether section 6A violates the basic premise of the Constitution and the Citizenship Act
in that it permits Citizens who have allegedly not lost their Citizenship of East Pakistan
to become deemed Citizens of India, thereby conferring dual Citizenship to such
persons?
Basic structure of the constitution, secularism, discriminate on the basis of religion.
Challenging the citizenship act saying it violated the basic premise of the constitution.
But what is this basic premise? 6A violates the basic premise of the Constitution and the
citizenship act in that it permits Citizens who have allegedly not lost their Citizenship of
East Pakistan to become deemed Citizens of India, thereby conferring dual Citizenship
to such persons.
 (x) Whether section 6A violates the fundamental basis of section 5 (1) proviso and section 5
(2) of the Citizenship Act (as it stood in 1985) in that it permits a class of migrants to
become deemed Citizens of India without any reciprocity from Bangladesh and without
taking the oath of allegiance to the Indian Constitution?
Should citizenship be granted only in cases of reciprocity? This is one of the principles
on which citizenship are usually conferred. Apart from the constitution, this provision
is in conflict with other provisions in the citizenship act. The level at challenge is at two
levels: Constitution and the act itself. The third level challenge would be the basic
structure and principle challenge.

(xi) Whether the Immigrants (Expulsion from Assam) Act, 1950 being a special enactment
qua immigrants into Assam, alone can apply to migrants from East Pakistan/Bangladesh
to the exclusion of the general Foreigners Act and the Foreigners (Tribunals) Order,
1964 made thereunder?
The question of determining illegal immigrant is covered by two legislations: the
foreigners act (which is applicable to the entire country) and IMDT (which is applicable
to only Assam). Can you have a mechanism which is in conflict with each other but
when Sarbananda Sonowal struck down the IMDT act , the parent act (under which the
tribunal was set up)can that act, a special enactment, be applied for the exclusion of the
general foreigners act.

(xii) Whether Section 6A violates the Rule of Law in that it gives way to political expediency
and not to Government according to law?
(xiii) Whether Section 6A violates fundamental rights in that no mechanism is provided to
determine which persons are ordinarily resident in Assam since the dates of their entry
into Assam, thus granting deemed citizenship to such persons arbitrarily?

Validity wasn’t decided. Case was referred to a larger bench, still undecided.
Since S6A was still in operation, it meant Assam could be treated differently, so the Supreme
Court division bench gave directions as to how the NRC Exercise could be conducted under
the citizenship rules, and referred the case to a larger bench. So till the larger constitutional
bench decides it to be invalid, it will hold valid and directions were given.
These are important because these are questions that have never been answered before by the S.C.
and there have been cases which have taken a broad view.
17.07.2020 (Lecture 5: Module 2)
None of the established doctrines are going to be directly applicable, as significant as Basic Structure.
On one hand, the Court struck down the Illegal migrants tribunal act, exercise of power on the
ground that it is a political question. NRC has unfolded in a way in which the Court has operated
in the centre of it.

Anupama Roy: Citizenship Regimes, Law and Belonging

She wants us to understand the intersection of law and political discourse, wherein law has played a
significant role in shaping and resolving particular disputes. The paper builds up on Nirja Jayal’s
paper.

Domicile- Expression of Intention

Look at decisions wrt why passport cannot be an identity proof: because when someone has been
forced to take a passport to migrate, such an evidence cannot be an evidence taking into account the
lack of ‘expression of interest’ to migrate. Idea of domicile looks at the expression of interest to reside
in a particular place -- intention must be established.

(Ram Narain Case) SC held at the time of partition that it is impossible to establish intention
because people’s minds were in a flux and no one went to the other nation with the intention of
abandoning the country forever, so domicile wasn’t considered. The Court said conditions under
which passport has been obtained, if it rebuts the presumption of domicile, must be considered. The
term migrant doesn’t carry the understanding of intention. Understanding of domicile is linked to
expression of intention. Distinction between migrant and domicile. The central take away from this
reading: how does a particular construction of citizenship allow us to look at State and rights in a
particular way.

Administrative Measures
Over the years, displaced persons have been legally absorbed through administrative measures,
leading to legal regimes relating to citizenship that mark specific ways of migration as illegal. Such a
legal regime also establishes and reaffirms the idea of “blood ties” as the foundation of citizenship via
national belonging.
By this, Roy wants us to look at how the question of citizenship was largely dealt with by
administrative measures (displaced persons act, abducted women) trying to settle these people and
provide for their integration in various parts, through different events in history (partition, war).
Difficulty with administrative measures is that first principles of citizenship aren’t discussed (in
contrast, the idea of law(an act or statute) is tied with constitutional principles, so the basis for
granting citizenship is clearly set out), these administrative measures are seemingly ad-hoc to deal
with a particular situation at a particular point of time. So the principles seeking to govern the entire
picture cannot be discerned clearly. Citizenship of birth changing into descent, these were the
significant amendments brought in the Citizenship Act.
CAA & NRC (Implications of a nationwide application of the Assam Model of NRC )
She then goes on to draw the distinction between CAA & NRC and how they’re spoken of together
because both of them talk about an understanding of citizenship, CAA is based on exclusionary
nationhood where religion is an identifier. NRC, on the other hand, is based on the assumption that
it is possible to distinguish between citizens and aliens on the basis of documents as evidence of
citizenship.
She is of the opinion that the association of citizenship with legal status is a continuing legacy of
passive citizenship of the absolutist states which were concerned with imposing their authority over
heterogeneous populations. This is the idea of citizenship emerging from the present context which
we should focus on. The conception of citizenship becoming rigid calls for reflection upon not only
the citizenship provisions but the constitutional structure itself.
What does citizenship slipping into the idea of religion mean for the basic structure of the
constitution?

National Identity Card and NRC: issue of identification cards began in 2003 - is that different from
the NRC that we’re talking about now? Rules framed under it required the government to carry out
house to house enumeration and collect particulars of individuals and families including citizenship
status. Making an exception to this, NRC in Assam was prepared by inviting applications from all
residents with particulars relating to each family and individual including their citizenship status
which was based on NRC 1951, and the electoral rolls up to the midnight of 24 March 1971. The
documents namely 1951 NRC (National Register of Citizens) and Electoral Rolls upto midnight of
24th March, 1971 are collectively called as the Legacy Data.

This is the legacy data Roy is talking about - to trace direct descent for inclusion in NRC. The
process set up in the Citizenship Act with reference to the issue of an identity card is different from
the process we’re talking about now - now the responsibility is on individuals to access offices and
prove their citizenship through documents.

Electoral Roll:
Time of transition from colonial rule to a modern democratic society and meaning of citizenship as
equal participation of citizens in a democratic process not just possession of a status. Looking at the
Constitution not solely as a document of governance, but as a body of rules that establishes
democratic governance and all allied concepts - citizenship, state that furthers that idea of
democracy.
In 1948 when the Electoral Roll came to be seen as an extraordinary and unprecedented “act of
faith”. It inserted ‘the people’ into the administrative structures of the State by linking the abstract
text of the Constitution(not enough that it says everyone is equal) to their everyday lives as a popular
narrative and prepared the ground for the conceptions and principles of democratic citizenship.
Electoral Rolls aren't anymore seen as instruments of democratic participation but more as a point
of exclusion and inclusion.

Babul Islam: The Guwhati High Court refused to recognize the EPIC(Electors Photo Identity Card)
as evidence of citizenship on the ground that it did not possess the attribute of ‘due’ proof which
could make the EPIC ‘admissible’ evidence. The EPIC could be ‘evidence’ of citizenship only if it
could be effectively inserted in the chain of validation linking it up with the pre-1971 voter list
Jabeda Khatun: A 50 year old woman had produced 15 documents to prove her citizenship, all of
which the Court refused because it couldn’t link her to her parents as legacy persons.

Manowara Bewa case: Guwahati HC ruled that a document issued by Panchayat was not a public
document and a private one, its truthfulness had to be attested by the officer in court who was
expected to take full responsibility of the certificate. In this case the officer of the gaon panchayat
was not believed by the HC, and if the certificate holder was indeed a foreigner, the officer would’ve
been considered guilty of harbouring an illegal immigrant and guilty of gross misconduct - shows
deep suspicion by the Court, distrust exhibited by Court towards all forms of documentation raises
serious concerns over how this process impacts understanding of relationship between citizens and
state.

Assam NRC model follows an assumption that everyone is a foreigner, putting the burden of proof
on individuals to prove citizenship, where an ancestral link in legacy documents are needed to
establish citizenship. Moving away from the principle Jus Soli to blood lineage and ancestry, is it
right for the parliament to make such changes that do not consider the principle of birth at all?

21.07.2020
Module 2: State
Esjudem Generis - interpretation of the definition of state given in Article 12, it means ‘of the same
kind’ [refer to Bhatias Blog]
Ananth Padmanabhan - Rights: Breadth, Scope, and Applicability
Article 12: State Action Doctrine
14th amendment to the USC “nor shall any state deny equal protection of laws and a state acts by
its legislative executive or judicial authorities.

Agency, Functionality Test - Implied agency only in certain situations, where there is an agreement
between the functions of the two bodies. Pertains to more how the body has been set up.
Instrumentality Test - There is no need for any agreement, any authority being used by State shall
be shown to have been controlled by the State. Pertains to how the body is being controlled.
(Matthew)

Electricity Board, Rajasthan v. Mohanlal (5 judges) - (narrower view test) Understanding of State
and Article 12, those institutions that resemble executive and judiciary can come under State, others
would not, leading to rights being available in a very limited domain. Equality would mean against
this sense in this context - that the State may not discriminate which is a negative obligation on its
part towards achieving equality. Judiciary confines itself into certain questions and doesn’t go into
questions where it cannot answer with conviction. Influence legislation rather than either uphold or
struck down legislation is a narrow understanding as opposed to a broader understanding - limited
institutions and other institutions.
This case looked into what kind of institutions come under State. Test - narrower view: the typical
power of the State, other authorities if it has been invested with statutory power to issue binding
directions to the parties, the disobedience of which would entail penal consequences.

Broader - functional - Sukhdev

State is no longer the police state, cannot be identified merely by its coercive-public functions only
because the State has an evolving character that performs multiple functions. Some entities are
discharging the same powers as State.
Herein, the court applied the A & I test in a functional sense - Padmanabhan says they misapplied it
since the test is structural in reality.

RD Shetty v. Airport Authority[Incorporated both A&I and Public Function] - no cut and dried
formula for agency and instrumentality. Bhagwati in Airport corporation held government did not
stand in the same position as an individual particularly with reference to arbitrary action. Citing the
American doctrine of State action, it noted that “extensive and unusual financial assistance” from
the government might be a relevant consideration. The same considerations applied to an “unusual
degree of [State] control over the policies and management” of the corporation (paragraph 15).
These two considerations – financial and administrative control – are, as we can see, part of the legal
approach to the meaning of State
If the functions of the corporation are of public importance and closely related to governmental
functions, it would be a relevant factor in classifying the corporation as an instrumentality or
agency of Government.” Of course, there is a very important problem with this: what do you do
when the State retreats from functions that it used to perform (as is happening under the present,
neo-liberal model?). It is quite clear that a descriptive test can be of no help in such a situation: a
normative baseline of “State function” is essential.
Whether the Corporation is an instrumentality of the Government in the sense that a part of the
governing power of the State is located in the Corporation and though the Corporation is acting
on its own behalf and not on behalf of the Government, its action is really in the nature of State
action.”
In its analysis of whether or not the International Airport Authority fell within the definition of
“State”, the Court undertook an extensive investigation of the nature and form of governmental
control, from state financial and administrative control, to the corporation performing the
erstwhile governmental function of administering airports, and so on. Crucially, the fact that the
International Airports Authority was set up under a statute did not play a determinative (or even
significant) role in the Court’s analysis, as it had in previous cases.
Thus, in R.D. Shetty, the Court adopted the language of Justice Mathew – “instrumentality or
agency” – but subsumed within it both the legal and the functional approaches, developing one
composite test that took into account financial and administrative control as well as public
function in a holistic, case-specific enquiry.

Narrower View: Other authorities if they have been invested with statutory power to issue binding
directions to parties, the disobedience of which would lead to penal consequences.

Institutions might not exercise the same kind of coercive power as State does. LIC, ONGC were
created to carry out economic activity. Moving away from the idea that discharge of sovereign power
and duties (duties that sovereign may not part from) aren’t industries. Defining state depending on
the purpose of which you’re defining it.
State is now no more confined to traditional policing functions, carrying out many more important
activities, even economic activities. Fact remains that these are corporations by the State. The whole
idea of setting up corporation was to free it from the State context. How much obligations of State
will the corporations also discharge and how much will it be like other corporations? (Functionality)

Shantabai v. State of Madras

Universities aren’t states because they don’t resemble legislature and executive.

From Structural to Functional. (Boards to Corporations.)

Shantai bai to RSEB to Sukhdev Singh v. Bhagatram

Juristic Veil
Ajay Hasia Case [only control - no function]
The purpose of Article 12’s expanded definition, according to the Court, was to cover those
corporations where, “behind the formal ownership which is cast in the corporate mould, the reality
is very much the deeply pervasive presence of the Government… it is really the Government which
acts through the instrumentality or agency of the corporation and the juristic veil of corporate
personality worn for the purpose of convenience of management and administration cannot be
allowed to obliterate the true nature of the reality behind which is the Government.” (Paragraph 7)
What seemed to be concerning the Court was the government’s attempt to doing an end run around
its Part III obligations by creating the corporate form as a separate legal personality, while
maintaining control over it: or, in other words, fraud. Comments to that end are scattered
throughout the core of the Court’s analysis, in paragraph 7.

Immediately after that, the Court cited extensive excerpts from R.D. Shetty, before “summarising”
that case through six markers of the ambit of “State”: (1) holding of the corporation’s entire share
capital by the government; (2) extensive financial assistance; (3) a State-conferred monopoly status;
(4) deep and pervasive State control; (5) functions of public importance, or closely related to
governmental functions; and (6) transferring a government department to a corporation.
(Paragraph 9)

The Court concluded that the “control of the State and the Central Governments is indeed so
deep and pervasive”, that the Society was undeniably an instrumentality or agency of the State
under Article 12. On the other hand, the Court paid no attention to the function performed by
the Society – that of higher education – in its analysis. The functional test, therefore, is
conspicuously missing from the Court’s analysis.
Earlier performance of a public function was important, in this case it was just about not letting
the state act under a corporate shield.

[this was a turn to an agency & instrumentality approach from a functional one -- aspect of
‘control’ was being given more importance]

PK Biswas v. Indian Institute of Chemical Biology [Control]

In Pradeep Kumar Biswas, Justice Ruma Pal went into the history of the Supreme Court’s Article
12 jurisprudence, and distinguished between a “narrow” and a “broad” approach to Article 12. For
her, however, the difference was not between the legal and the functional approach, as we have
discussed, but between the statutory approach (in the earliest cases), and the legal approach
(Rajasthan Electricity Board onwards). In her judgment, the functional test is erased out of history:
Justice Mathew’s concurrence in Sukhdev Singh and the judgment in R.D. Shetty are simply
treated as affirming the legal approach, which was ultimately crystallised in Ajay Hasia.
she held, was “whether in the light of the cumulative facts as established, the body is financially,
functionally and administratively dominated by or under the control of the Government. Such
control must be particular to the body in question and must be pervasive. If this is found then the
body is a State within Article 12. On the other hand, when the control is merely regulatory whether
under statute or otherwise, it would not serve to make the body a State.” Here, the entire focus is
on control, and the public-function aspect has disappeared altogether.

22.07.2020
State being caught up w Fundamental Rights: Advantage of that is that there is a clear connection
between state and violation rights but such a definition also makes it impossible to accommodate
individuals.
Conceptually, the Judiciary is a part of the State but technically, it isn’t. For purposes of
Fundamental Rights, it shouldn’t matter who is violating.
Limiting State power, expanding fundamental rights - the two shouldn’t be mixed up as expanding
is not to be done by State alone.

Functionality test: Can all institutions giving effect to public function be considered to come under
State? (Airtel) Whether functionality test should be a standalone test, whether it should be tied up
with some other context. Mathew’s concurrence in Sukhdev, straddling away from the narrow
structuralist approach taken in the Electricity Board case.

Jus Matthew in Sukhdev Singh v Bhagatram – comes up with a broader functional view
o Look beyond the police view of the state.
o There are multiple functions of the state. So look at the functions.

Horizontal Application - Part 3 talking about untouchability etc, relief would be available because
these are violations of FRs, state isn’t mentioned explicitly, so we might include private also under
relief provided by A.32. Art 13(2) still largely directed against State Action of a particular kind. FRs
to be understood in context of State or State’s law making power.

Justice Shah in Rajasthan and Mathew in Sukhdev give concurring opinions with a different
rationale: application of Fundamental Rights, which sowed the seeds of functionalism in Supreme
Court’s understanding of Article 12. The previous structuralist characteristic only sought to
understand institutions to be state if made or operating under a statute. The agency or
instrumentality test given under Sukhdev lingered on in subsequent decisions but the ‘ghost of
structuralism’ as Padmanabhan puts it, continued to haunt the SC decisions.
Environment Protection case wherein the Art. 21 has been expanded to include private corporations
to acknowledge environment rights. Both private and government hospitals have obligations
extending to fundamental rights related to health. Understand horizontal application to help
understand the question of State and rights better. Gita hariharan case wherein family respecting
fundamental rights is brought into question, Court did engage in the question and talked about
whether or not there was a violation. So an application of constitutional value is present in areas
where the State is present indirectly.

Functional approach is less focussed on the manner in which it is set up, more focussed on the
manner in which things are done, the refusal to use functional approach as a standalone approach.
Airtel performs public ‘functions’ but it isn’t under the State control. To the extent of which State’s
reach is expanded is alright but if it goes as far as including private corporations under the definition
of State, it needs to be tied up with other approaches.

Purpose of Constitution: to limit State power

The Constitution should be interpreted such that government power wherever located must be
subject to limitations.
Public corporation:
2 conditions: 1) created by statute and 2) must have invaded fundamental rights.

Test (Corporations under the State)

Whether or not State control exists over management and policies of the Corporation and whether
State provides financial help of a sufficient degree to imply control. A state may also help a
corporation in ways other than financial assistance by giving it the power of eminent domain or
creating a monopoly. Mathew drew out the implications of Art. 13(2) and 14 (arbitrary clause
action). Bhagwati in Airport corporation held that the government did not stand as the same
position as individuals particularly with reference to arbitrary action. Bhagwati’s emphasis was
rightly placed on Article 14 and its importance in Administrative law in negating arbitrary action.
“It would be the easiest thing for the Government to assign to a plurality of Corporations almost
every state business (economic activity) and cheat the people of India out of the fundamental rights
guaranteed.”

23.07.2020

While looking at functions of state, A and I become imp. Since the state is an abstract entity, it acts
through Agents and Instruments.
Agent – agent can be an individual with whom you have a relationship – link to agency principles
in contract law. You can authorise them to act on your behalf for certain purposes. So for a particular
public function, the state can authorise even a completely autonomous entity.
Instrument – usually used when you set up or own the instrument. Ex: the government by statute
creates a corporation. When the govt sets it up, the control it has is almost complete. While being in
such control, it performs imp functions.
Functionality is more concerned with what is being done, rather than the way in which they were set
up.

Padmanabhan makes the argument that we can’t have a test which is completely functional. The
result of this will be that any private entity which has absolutely no relation at all (for ex, say
telecommunications is imp public function, so will Airtel be “state”) will be state. Currently, there
is a regulator.
So while the functional approach is imp to expand the idea of state, but if you begin to use it as a
standalone test, you include a lot of private actors into state. We aren’t sure if we want to do this.
This is so since we have defined state in the manner we did for a particular purpose – when we talk
about the state in Art 13, it is a particular conception of state which shouldn’t be lost.

Are there other ways in which we can expand the reach of FRs (and constitutional values) without
expanding the scope of “state”:

o Horizontality
● Functionality, till the BCCI, stayed within state set up bodies. ONGC, LIC, CSIR and all.
And the argument was that the very act of making corporation itself means that we don’t
want them to state.
● If we stick to state only as a sovereign body, then FRs will only apply to law making areas.
The expansion occurred only when the state was using A and I through corporations.
● The question now is, do we take this to its logical end and include private actors too and this
is where we are confused. Does it mean that private actors are not bound at all to respect
FRs.
When we look at education and minority rights, we will see that FRs do apply to “state-aid”
institutions.
RTE – even through a statute, we can extend the operation of FRs.
● So are FRs confined to state, or are they available against non-state actors, though the
manner in which they apply against Non state actors will differ.
● For ex, take ENVIRONMENT.
● Through Art 21, we brought a lot of private corporations to a position where they
have to respect env related FRs in 21.
● Right to health – private hospitals have an obligation to respect the right to health?
● SO under certain circumstances, FRs are extended to non-state actors too
● Asiad case – child labour
● If we answer the question as yes, saying that private bodies are duty bound to respect FRs,
how will we do this
 ● Writ petition – this has happened in a few cases, but it is very rare

So if we understand horizontality differently, it will answer these questions for us.

● Gita Hariharan -
● Where is the question of FR in family law. Does family have to accept FRs
● The court engages with the question here. The Court, though the earlier position
was “bull-in-a-china-shop,” doesn’t brush the question away here.
● But they refer to UCC and all and engaged and talked about whether there was or
there wasn’t a duty to uphold FRs.
So where the state is only indirectly involved (say triple talaq), there is a discussion about
fundamental rights. So to understand this, we need to understand horizontality.
What the court says about ONGC, LIC, IFC and AAI is that they are state, since they are owned by
the state. The term structuralism appears nowhere in the judgement.
● Functional approach – since there are imp public functions – is a way in which we
INTERPRET art 12.
Horizontality has been argued in only one case, but the Court doesn’t really engage with it.
Understand horizontality from a series of decisions of the SC
1. PILs filed in respect of legislative action, executive action, and sometimes for no action (here,
PIL asks for some action).
2. We put what the court did in a conceptual framework by using horizontality.
So against whom are rights available
1. STANDARD ANSWER – state
2. Most horizontality cases – state has been impleaded additionally to private parties.
3. Textual position – FRs do APPLY against private parties. State is not the only person.
We now need to further sub-classify:
1. One understanding is that certain rights – 15(2), 17, 23 are available against private parties
and others are not.
● This is a valid distinction
● When we look at 13, and say state law is subject to judicial review – we say a concrete
sense of state
2. 2 ways to talk about Horizontality (Gaurdman’s distinction)
Direct
1. Litigation b/w X v Y (private v private)
2. Yes this does happen – in CERC, the SC issued directions against private corporations.
3. MC Mehta cases, Asiad case – non-payment of minimum wages is bonded labour. Private
employers are liable too.
4. We don’t know where to fit Vishaka exactly.
Indirect
 1. Is there a constitutional duty on the state to respect a particular right and has the state done
so
2. Vishaka – state failed to protect dignity
3. Now the Court issued directions against private persons.
4. So the Court here asks the state also and the private persons to do something
5. Gita Hariharan – sections of HMA (the court engaged w violations of 14 and 15).
● One way to understand Gita Hariharan is just an Art 14 challenge
● Because art 13 enables this
● We then don’t need to go into direct and indirect horizontality. Any law made by state
is subject to Art 14.

State horizontality - Rights are available against the state. Bhopal tragedy, Vishaka etc are cases
wherein State has been implicated additionally to private actors.

Are FRs available against private actors?

Yes, they are. Are only certain rights available and not the rest? Yes, and this can be deemed to be a
valid distinction to an extent. Horizontal effect can be broken down in two ways - direct and indirect
horizontality. Direct is where you have a litigation x v. y (private persons) where private individuals
can claim rights against other private actors (MC mehta, PUDR child labour). Private act of a private
party is challenged on the touchstone of the constitution.

Indirect Horizontality mediated effect, the need to respect minimum wages or not to discriminate/
harass through an affirmative constitutional duty on State and then applying fundamental rights
(Vishaka Guidelines); or to apply constitutional rights to private law (Gita Hariharan), court
engaged in the question of whether or not FRs would apply. The challenge, however, is not to the
respondent’s(pvt party) acts, but to the law that the respondent relies upon to justify its acts. So, it
is done via State, asking for intervention to protect from violation of rights.

Cases involving indirect horizontality often require a delicate balancing act. This is because action
that is off-limits to the State is often completely acceptable when it comes to private parties.
Therefore, laws that merely permit, or facilitate, private arrangements that individuals are entitled to
enter into, but the State is not, should not be invalidated or modified.

[Indirect Horizontality]Zoroastrian Housing Society case (Parsis) - houses can’t be sold to non parsis,
by-law made for society itself. It resembles contract between parties rather than rule made by State,
and Court said as long as there is no legislative interception of that nature to eliminate a qualification
for membership in the cooperative society based on sex or religion, it is not open to the Court to
coin a theory that a particular by-law made by a co-operative society is not desirable and would be
opposed to public policy as indicated by the Consitution.
The Constitution no doubt provides that in any state action there shall be no discrimination based
on either religion or sex but part III has not interfered with the right of a citizen to enter into a
contract for his own benefit and at the same time incurirng a certain liability arising out of the
contract.

24.07.2020

Article 13
Law making power - Democratic process of the way laws and provisions were made wasn’t the centre
of it, so it wouldn’t be fair to say that the Constitution is legitimized.
Establishes judicial review, establishing supremacy of fundamental rights in all laws made by
parliament, by holding that any law if in conflict with a FR would be held to be unconstitutional.
Constitutional Amendments are also capable of judicial review since judicial review isn’t restricted
to Art. 13.

Law and Laws in Force [Difference between 13(1) and 13(2)]-

Difference between law that was already in existence and the law that came into being after the
constitution came into effect. Under this article, when does a law become unconstitutional, the
minute it is made or the minute when the Constitution comes into effect? Because if a pre-
constitutional law is declared to be void, all decisions taken under that law will also be
unconstitutional. All pending litigations, does everything go or is it upto the Court’s deliberation?
The same was discussed while laying down the fundamental difference between pre and post
constitutional law in the case of Keshavan v. State of Bombay.

Keshavan v. State of Bombay (1951)

The question of law was: Should pre-constitutional law be held void from the time they were made
or from when the constitution came into effect? PRE CONSTITUTIONAL LAWS ARE NOT
VOID AB INITIO.
A colonial pre-constitutional legislation was clamping down heavily on freedom of expression and
hence it was contended that it should be declared void because FRs have now come into effect with
the Constitution. This created a distinction between post and pre constitutional laws.
Transformative constitution allows for a point of time from where transition or change comes into
being. A post constitutional law must be held void ab initio. Same isn’t the case with pre-
constitutional laws because they stand on a different footing, so when they were made, there existed
no bill of rights with reference to which they needed to be measured up.
Court held that any prosecution that was started before the constitution came into effect would still
be valid, and for those purposes the particular pre-constitutional law could still be valid. That law
could still be struck down after the Constitution came into effect. Transformative constitution
doesn’t mean a clean state.

Doctrine of Severability
If only particular provisions of a legislation are unconstitutional, does the entire legislation run the
risk of being declared void? No, only the unconstitutional part would be struck down. ‘To the extent
of inconsistency’,(Article 13(1)) -- test is to see if whether what remains is so inextricably bound up
with the part declared invalid that what remains cannot independently survive or whether on a fair
review of the whole matter it can be assumed that the legislature would not have enacted at all that
which survives the part that is ultra vires.

Doctrine of Eclipse
A law when declared void, is overshadowed by the FR. When a court declares something to be void,
does it have the same effect as ‘repeal’? Colonial laws should be repealed, the State continues to
behave in the same way in which it used to before 1950 in terms of what kind of laws are being made
(preventive detention), no break from the past. Repeal of a statute means it cannot revive, but a
legislation once voided by the Court, may be revived. Law continues to be valid even though eclipsed
by a constitutional provision. No eclipse for post- constitutional laws. Repeal - dead for all purposes.
Void - there can be certain further actions to revive it. Eclipse - constitutional change, revival of
legislation (context), legislature eclipsed by original provision be revived in that constitutional
change. Striking down musnt leave legislative void. Repealing is preferred.

27.07.2020
Module 3: Equality - Article 14

‘Equal protection of Law’ - what does law mean here? Scope of Article 14 to be understood under
law making power of the State?

Significance of personal law in the debate

State of Bombay v. Narasu Appa Mali (1951 SC)

Right to religious freedom and practices.
State Legislation wrt bombay bigamy, challenged in terms of discriminating between Hindus and
Muslims(14, 15, and 25). If personal law is within law in force, how is such a law made? What is the
scheme of the constitution wrt personal law. State made law is being upheld by the Court, cannot
be confined by personal law, in case of no legislation personal law will be obeyed, cannot be attacked
without a statute. Both laws and laws in force include custom and usage, but not personal law.
Argument - Isn’t custom and usage personal law? All personal law isn’t custom and usage. personal
law is derived from religious scripts(not from legislatures), but we may have customs that may go
against religious scripts. So custom and usage may be held to be violative of Part III, but personal law
doesn’t emanate from any particular text that is amenable to constitution ought not to be part of
laws and laws in force.
1) The GOI Act distinguish between personal law, Custom, and Law - it didn’t include
personal law in Law.
2) Under 372, laws which were already in place, would continue to have effect. Even though
personal law is not law within 13, it is law within 372.
3) If personal law is a law, then all the practices associated with various religions would
automatically be held to be void - then why do we have art 17 or other provisions that place
limitations on religious practices.

Held: Personal law does not come under the expression ‘laws in force’ in Art. 13(1) of the
Constitution. This decision opined that personal laws are immune from constitutional scrutiny.
This included religious customs and beliefs as well. Power of state legislature to make law - upheld.
Therefore, personal laws do not need to undergo the test of Part III of the Constitution.

If a certain personal law applies to a specific section only, it doesn’t violate article 14, court says pl is
not law at all so the practices emanating from personal law won’t be void from the coming into effect
of the constitution. Rights accrued under Pre Constitutional laws won’t automatically stand
cancelled, It requires a positive legislation made by the State for these laws to be upset. Personal law
continued by virtue of 372, it is for the state to make law with reference to all these aspects, if it does
for only one section, it is a legislation for social reform and hence not discriminatory.

Subsequent cases have differentiated from Narasu saying that Narasu wasn’t anything about
codified personal law, it is just about state made law of the Bombay Legislature.
● John Vallamatom
● Mudaliar – rights of Hindu women under personal law, as modified by codification. Here
the court said that the right transformed itself.
Court here explicitly says codified law overrides personal uncodified law. No reference to
Narasu.
Now the next question is “gender”
Can we strike down these practices//personal law, if not on religion, then on gender?
Till now, we have answered these questions based on not 15, but 25.

Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996 8 SCC 525)

Change in codified law by uncodified law. Personal Law must not stand overridden by the
Constitution. Uncodified under the purview of 14, 15 or is it Codified law? When is state action
valid, and measure of state action - question of PL shouldn’t come in.

It is seen that if after the Constitution came into force the right to equality and dignity of person
enshrined in the Preamble of the Constitution, Fundamental Rights and Directive Principles which
are a Trinity intended to remove discrimination or disability on grounds only of social status or
gender, removed the pre-existing impediments that stood in the way of female or weaker segments
or the society.

Central question is the grounds and standards of review that arise from 14. This tells us how the
court approaches equality.
Art 13 talks about laws Art 14 continues this saying equality before the law and equal protection of
law.

Is Art 14 a negative or a positive right:

1. Art 13 gives a negative conception (Court may not enact) of FRs.
2. So is Art. 14 a right of the individual which doesn’t allow the state to make an unlawful
classification or discriminate or be arbitrary.
3. Or does Art 14 create or acknowledge an obligation of state that it has failed to do something.

When we locate art 14 in the context of legislation, legislative action is one facet of Art 14, not
everything. There are also constitutional duties that arise from Art 14. For instance, in the horizontal
conception of rights, there is a constitutional duty on the state and the state failed to do so, and then
the citizen can claim that action from the state.

Eg, In Vishaka, the state has a duty unfulfilled so the Court passed guidelines.
This positive and negative distinction doesn’t take us very far.
Rajbala – the claim made was that the state has failed in a duty to protect.
We need to accept that Art 14, as the first right, creates a wide canvas of rights which aren’t really
possible to categorize as +ve and –ve.
Does equality have meaning in itself:
For instance, Art 16 says equality as leading to equal opportunity
So we always read equality with other provisions.
So there is a line of thinking that says equality does not mean anything by itself.
AK Gopalan – can you detain him for an indefinite point with repeated orders. The argument that
was made was that equality is linked to right to life and right to freedom of movement, etc.
Here, the import of this is that equality is used to achieve goals of Art 19, Art 25 goals. Equality in
this sense, is only setting up the ground to enjoy the other substantive rights.

There is also a line of thought that says that equality per say is something distinct, independent of
liberty, religion, opportunity, etc. It is a right that has value in itself. Thus, we don’t need to invoke
other rights to strike down state action. Equality itself is enough to prohibit certain state actions.

Ideas of Equality
CONSISTENCY – the first idea of equality – formal equality b/w all people – same law applies
irrespective of your position, etc. Formal equality in itself has a purpose – this is to address
hierarchies. So we will apply the same law irrespective of who is before the court. For ex, claims of
moral worth such as dignity, everyone has equal dignity.

RATIONALITY – evidently, mere consistency is not enough. When we talk about Reasonable
Classification Test. When a particular action is undertaken, there has to be an explanation for that
action. The principle of rationality says you can’t just act on any whim or caprice, i.e. arbitrariness.
So when a state classifies b/w X and Y, there needs to be a rational explanation of why the
classification has been made and how it is made. The first 2 principles are an older conception of
equality. The principle of arbitrariness comes from here, but becomes a stand-alone test much later.

PROPORTIONALITY – takes the formal equality doctrine further. In certain circumstances, it is

unequal to treat people equally. We now need to see what needs to be done to make unequals
become equals. So now at this point we are seeing how to achieve equality. So here, we get into means
and ends analysis. Proportionality needs us to see both the end and the means. Go beyond the
rationality of the classification. Look at the end product, i.e. to further equality and then make
special measures to achieve this end. There is a link b/w the action and the goal. There thus needs to
be the best way to achieve this goal. This is substantive equality. We are treating people unequally,
but doing so on the rationale that they are themselves unequal, and then there is a goal to equalize
them. Thus, affirmative action.
EGALITARIAN/DISTRIBUTIVE JUSTICE – all people are entitled to equal access to public
resources. When we pursue this goal, we need to make special accommodations for the unequal
which ensure equal use of public resources. It’s not enough to say that consti says education is a FR.
The state needs to build infrastructure and all that to ensure equal access. We are going beyond the
individual here. We are moving to structural questions.

DIGNITY – Every individual has equal moral worth or dignity. This then expands into several
rights. It is imp to locate Art 14 only by saying that 14 prohibits certain kinds of laws.

We also talk about certain principles being so fundamental that it can’t be understood only in terms
of one article or one part of the constitution. For ex, equality is seen as a part of rule of law itself. For
the state to be legitimate itself, it needs to function in a certain manner, requiring recognition of such
very basic rights. In Khanna’s dissent in ADM Jabalpur, he says that even without part III, these
rights apply. There is a link here made to democracy, and rule of law. This is an implicit mode of
reasoning. We don’t rely on explicit constitutional provisions – the principle itself transcends into
several constitutional provisions (for ex, equality has a link to adult franchise), and with democracy
itself. This is particularly imp where the Courts can’t enforce explicit rights as in an Emergency.

29/7/2020
Equality is being defined in terms of equality or equal protection of law. The SC at least initially
started engaging with it as if it were a negative right.
Under the old doctrine of equality, equality was measured in terms of action of the state. There is a
burden on the state to prove that the state’s action is just and r-ble.
Inequalities created by the law – were dealt by Art 14.
For example, AK Gopalan and Anwar Ali Sarkar (comes after Gopalan, and does not refer to
Gopalan).
Both these cases were challenges to legislative action. This is where Khaitan’s essay is located.

How are we using the RCT in old and new conceptions of equality
AK Gopalan didn’t use Art 14 at all. Anwar Ali Sarkar uses Art 14 much more than Art 21. Both
engaged w 21, but in Gopalan went to 22, and Anwar Ali Sarkar went to 14. In Anwar Ali, 14
became the focal point.

So what was Anwar Ali about?

Anwar Ali Sarkar v. State of West Bengal
The RCT in Indian Jurisprudence. It is not true that all the judges engaged w RCT. In Gopalan,
Fazal Ali dissented by reading 14 with 21. In Anwar Ali, J. Vivian Bose gives a very different
judgement. He says provisions of the constitution are not mathematical, but a framework for
differing opinions (link this to CM).
Vivian Bose says that any tests are only ready and rough guides. He says Art 14 is much more than
RCT.
He does come to differentiation, but says differentiation that offends social conscience (i.e.
constitutional values that should influence govt decisions, link to basic structure)

Equality and Equal protection are different

The former is an idea of rule of law – brings in arbitrariness, (limited) judicial review. Rule of Law
can be read to only mean that the Legislature is supreme. So long as there Legislature passing law, all
is good. Inspired from UK.
The latter is an idea of due process of law.
This says that legislative action is suspect. Courts have a duty to examine and strike down legislative
action.

In a rule of law, there needs to be a statutory framework. No executive action possible without
legislation itself. The court then restricts itself to the legislation and sees if the executive action is
valid under the legislation. You never question the legislation.
Whereas in a due process jurisdiction, you question the legislation and strike it down too.
This distinction helps us understand why the court sometimes has a limited scope of review and
sometimes expansive
So Gopalan is ofc rule of law. (only striking down here is a part of 22 which violated the text). Anwar
Ali – Fazl Ali in fact says strike down the entire legislation, but the legislation after a due process
standard, strikes down w severability.
Rule of law would require the Courts to be v deferential. But we also have borrowed judicial review
and due process ideas from the US jurisdiction. So there is a mix here.

14 read with other provisions

14, 15, 16 - When you read these 3 together, you are reading it not so much of rule of law, it is
opportunity. There’s not much of RCT in this reading, but it’s about affirmative action.

14, 19 - Here, reasonable restrictions of Art 19 – here you are borrowing the rationality/r-ble ideas
of Art 14 when judging the validity of reasonable restrictions. Post Maneka, this happens.

14, 21 - If you read 21 by itself, you’ll end up saying any procedure established by law is fine to restrict
21. But when you read those 2 together, you will say that the procedure should meet with 14, and
hence there is a link.
14, 25 - Sharaya Bano.

Each right could have a 14 dimension. Legislative review. Khaitan talks about both grounds and
standards of review. Old – RCT. New – Arbitrariness.

Old – RCT – Anwar Ali Sarkar (pay attention to standard of review).

Here, the legislation itself didn’t provide when the special cases would be special. There were no
guidelines here. Discretion was given to the executive.
Here, there was a lack of classification. This allows the state to have complete discretion.
The objective of the legislation was “speedy trial”. The question is how are you showing that the
objective is met by the provisions of the legislation?
There should be a relationship b/w the objective and the means adopted to reach there. If this isn’t
there, you can strike it down.

New – NA – Royappa/Maneka
Both are not cases dealing with legislation. Royappa was service rules. Maneka was the executive
action of the passport authority. Maneka did not strike down that particular section of the Passport
Act (rule of law again) – only the action of the officer was looked at (administrative law).
So Arbitrariness emerged from administrative law. Can we then use it in consti law to strike down
legislations? Because in administrative law, you are not concerned with separation of powers and the
role of the courts.
We should be cautious here. The problem with the evolution of arbitrariness is that in the beginning,
we said that something should be completely ABSURD for it to be invalid (link to Wednesbury
principle). We then transplanted it to legislation, saying unless the legislation is absurd, it is valid.
Even Anwar was about 21 because it was a fair trial question. Only Fazl Ali made that link b/w 14
and 21.
Even RCT is deferential. If all you need is a nexus. Vivian Bose says that RCT is also deferential.
We need to have an expanded version of RCT. and then relegate manifest arbitrariness to admin law.

30.07.2020
Tarunabh Khaitan- Equality - Legislative Review under Article 14

Central Argument: Equality is to be looked at with reference to something (parasitic, comparative).

CT will be there in any case involving the question of equality. Arbitrariness comes in where no
comparator, but equality is to be addressed by looking at other rights. Gender cases - 15 comes in.
Other rights = other aspects. Empty cup wherein we can pour anything.
Distinction made between legislation and law - former is made by a state body, there is a broad
framework, reflecting a plenary body in legislature, and is to be understood distinctly from executive
action (which is done by an actor who doesn’t have primary authority to do it).
Application of principles of natural justice fits much better with administrative action than
legislative action.

Doctrine of classification (well defined)

Doctrine of Arbitrariness (vast and vague) - evolution in Maneka and Royappa, more to do w
principles of Natural Justice which has more to do w administrative action, and hence is not a
suitable doctrine to evaluate legislative action (khaitan). But, there have been a string of decisions
post Shayara Bano where courts have used this doctrine to strike down legislations, “manifestly
absurd, arbitrary, unreasonable classification”.
Shayara Bano - unilateral action by husband - arbitrariness in action - it is used to strike down
statutes.

Classification Test: Makes assumption about validity of the statute, finds reasons to uphold it, asks
simple questions, doesn’t ask scope and purpose, simple ques - have you classified correctly, limited
question - you’ve used deferential standard to legislature - small enquiry made by court
Arbitrariness Test is a test of reasonableness which does not entail comparison. (will only strike
down pregnancy clause and no other clause)
Standard of Review for Article 14 - Non arbitrariness is also a facet of equality, Maneka - there could
be other situations of equality which the Classification Test doesn’t seem adequate to review.

Nargesh mishra case

Classification between people based on sex, violation of equality, irrespective of how reasonable the
classification is (prescribed different conditions of employment, two classes are non-comparable),
court accepted, asked a simple question, found a reason to have made the classification, without
evaluating the actual reason and the prejudices associated to it

Naz decision
Court said what is the rationale behind making the decision, how is that emanating from CM, if
you’re asking a ‘why’ question(proportionality rule-centrality), you must ask a question that isn’t
just comparative in nature, Khaitan says Arbitrary test is based on a conceptual misunderstanding
of requirements of the rule of law.

Doctrines are merely ways to help us understand and adjudicate, how to understand the right to
equality?
Is the Classification Test better? The range of questions are larger and are of a higher standard of
review, asking the legislature to demonstrate why the statute doesn’t violate Art 14, not just because
of not being manifestly arbitrary. It is much more deferential than legislative arbitrariness.
Narrative: 2 questions that court asks in Classification Test - intelligible differentia; reasonable nexus
(nargesh mishra shows inadequacy of Classification Test) - interrogates unreasonable comparisons

Unreasonable Comparison
● Available against state action, not impact of action
● Requires comparator
How to expand the Classification Test?

1) Right: Is the right to equality enraged? (eg: rule of contract of employment that determines
who can be terminated if they become pregnant)
2) Differentia: What classes does the rule create? (Anwar Ali)
3) Objective: What end does it seek to achieve? (Nargesh Mishra: rationale behind creating a
class?/ reason behind differentiation)
● Anwar ali minority: distinction between law designed to be administered
discriminatory way or actually administered in a discriminatory way, refused to
strike down legislation bc problem w the way it is administered not the statute itself
● Not framework of legislation but look at action taken under legislation
Motive of legislation or the purpose that the legislative is trying to serve? Arb -
motive is relevant, otherwise motive isn’t/ purpose has to be normatively legitimate
(why made, goal it’s tryna serve)
● Anwar ali - making special courts for speedy trials, merely having purpose isn't’
enough, but if it doesn’t have a link to classification or if there is no classification,
does it achieve objective or not (ques involved in proportionality analysis, all
legislations have to deal w this analysis after adhar judgement) - then we’ve reached
substantive due process
4) Impact: What consequences does it subject each of these classes to? (Nargesh Mishra
consequences of creating separate rules of employment for air hostesses)
● (nargesh mishra) - Lose your job at age of 35 - unemployed, and unemployable
● Impact analysis as against simple classification questions
● Rajbala v haryana decision - any nexus between qual and holding public office -
that’s the extent of enquiry, if had looked into impact and objective you’d have
better results through a minimalistic classification test (classification and
reasonability was used)

31.07.2020
Arbitrariness Doctrine
In Javed, classification test would’ve also led to the same result that it was a valid classification made
between those who have 2 children and those who don’t. The objective is about increasing
competency which is what happened in the Rajbala case. Two instances where both doctrines can
fail to appreciate various contours of quality (engagement w other rights, disparate impact,
normative admissibility of the classification.)

Anuj Garg case - CT used correctly

Arbitration doesn’t look like a solution to problems of classification. CT is a good enough doctrine
provided we ask the right questions which was done in Anuj Garg - there was a law prohibiting
women from working as bartenders (rational but illegitimate - further entrenching patriarchy by
denying employment to women), it was reasonable on the premise that women would be harassed
in these places but that isn’t a good enough reason to deny them employment.
Here, one needs to connect with the idea of other rights, which wasn’t done in Nargesh Mishra. We
shouldn’t further the idea that women shouldn’t inhabit public cases if society is prone to violence
against women, if denying inhabition (employment, in this case) isn’t constitutionally permissible,
then there should be other ways in which protection must be ensured. (binary of choosing between
wanting to be safe and wanting to be employed should be done away with). Problem isn't the
question of arbitrariness, it is in fact the question of other rights and whether a law is permissible
and what is the disparate impact on women by not giving them employment. Nargesh Mishra
should’ve been decided in this manner, by looking at the question of impact, by looking at why
classification had to be done, and whether the goals of legislation can be met by other means. (idea
to protect women can be done in other ways) - proportionality review in cases of discrimination and
right to equality is engaged, and you’re able to use to ask deeper questions.

Bhagwati’s description of doctrine of non-arbitrariness: as to how arbitrariness and equality are

sworn enemies. Art 14 trying to bring together two different doctrines of different jurisdictions.
Equality before law is a facet of rule of law and equal protection by law is a facet of due process. 3
principles of rule of law, which one is being used here? 2nd one as Dicey explained it -- equality
before law seems to reflect this principle of no person being above the law and law being supreme.
The principle of arbitrariness is in dicey’s first principle of rule of law - only a distinct breach of law
is punishable -- can be reduced to principle of legality, all law is subject to legislation and as long as it
is properly made, one can’t talk about that law being unconstitutional. Presumption of
constitutionality - arbitrariness = executive power not legislative power, because an entire process
goes into it, so it is assumed that there must be some reason. One can say it violates rules, but it can’t
be arbitrary. So, it was believed that the arbitration doctrine doesn’t apply to legislations.
Shayara Bano: Justice Nariman points out why these SC decisions are not correct, McDowell
decision holds that doctrine of arbitrariness shouldn’t be used to strike a legislation down, he
critiques it saying it has been used before and no reason to not hold it unconstitutional using the
arbitrary test. Kurian Joseph J. says we cannot talk about legislation being upheld if it is arbitrary.

These decisions - referring to lack of reasonable classification. In Johar, 377 is arbitrary because it
isn’t based on something not distinct from reasonableness which is an important facet of CT. If it is
a question of reasonableness, in the johar case, it is a question of CT, in cases where CT is involved
where arbitrariness is invoked-- there was a consensus that arbitrariness mustn't be used with respect
to legislation but the same isn’t agreed on anymore.

2G spectrum - refused to test legislation under arbitrariness; legislations shouldnt be struck down as
arbitrary; problem is that they’re not making distinction between legislation and executive action
being reviewed. It was a question of executive action which was being examined.

Subramaniam Swamy - involved classification - confirmed arbitrariness is not a ground for

legislative review. The provision violated classification doctrine anyway.
Court laid down the grounds for legislative review, ruled out the doctrine of arbitration by obiter.

“2 dimensions of Article 14 - discrimination based on impermissible or invalid classification

ii) excessive delegation of powersl conferment of uncanalised and unguided powers on the
executive, whether on the form of delegated legislation or by way of conferment of authority
to pass administrative orders - if such conferment is without any guidance, control or checks,
it is violative of Article 14”

Bringing in other rights and concepts by moving out of classification and engaging with the right to
equality expansively.

Cases engaging with the question of equality did involve classification, those that didn’t involve
classification were relating to administrative and executive action - maneka, royappa.
Triple talaq - manifestly arbitrary - even that involved classification and so did Johar.

03.08.2020
Module 4 - Anti-discrimination and Affirmative Action

In the early years, the Supreme Court looked at FRs as individual silos. So the normal measure here
was to check law and administrative action as against individual rights.From the 70s, the Court
discussed various intersections and interactions b/w the FRs. If we look at recent scholarship, there
is a clear thrust to read these provisions together, in an integrated way. This means that there is an
overarching principle behind the drafting of these provisions and we interpret these provisions with
that in mind.

Idea of equality is captured not just by Art 14. There is a large basket of provisions. 15, 16, 17, 18,
23, 24 – all read together to appreciate the idea of equality.
Need to appreciate how judgements were responses to amendments. RCT primarily looks for
“discriminatory intent” whereas MA looks for all consequences.
The text of Art 14 explicit ensures equal protection before the law, which is distinct from equal
protection of law. Why is Art 14 using both phrases and using “or” in b/w them:
Clearly the understanding of the two phrases is different.
Before the law – formal equality – similarly situated person are equal
Substantive equality – given existing social, historial context, it is not appropriate to treat people in
an equal way, we need to account for these operative differences.
A reference to CAD makes clear that the CAD itself was aware of this idea.
Equal protection of law – is from the 14th Amendment of USA.
When the 14th amendment was added, it was conceived of as formal safeguard for the previously
enslaved population. It was not seen as a vehicle for socio-economic rights or liberty rights.
But the framers here had a clear substantive notion of the role of state.
The language of Art 14 itself suggests substantive equality, and it is different from the design of
various other constitutions. This is so since the Indian constitution has concrete articles devoted
directly to policy measures.
The judicial interpretation has not been consistent – sometimes courts have fallen back on formal
equality at times.

Theoretical Approaches to Equality

Distributive justice – is still used to defend the legitimacy of the state as a welfare state. He argued
that popular legitimacy can’t be obtained just through the electoral process, but re-distribution is
required.
Look at distribute justice in both material and social terms (since the Preamble says equality of status
and opportunity)
Historical justice – 17, 18, 23 and such are directed against ritual forms of hierarchy based on
religious scriptures. So the state uses its power to regulate these functions.

4/8/2020
Art 14 - difference between substantive(law must cater to differences amongst people) and
formal(procedural neutrality, same treatment of citizens) standard of equality [equal protection
before the law, of law]

Equality of status and equality of opportunity

Opportunities for participation in public life, reservation policies to enhance representation
Status - deeper layer of understanding equality, substantive pursuit in itself. Anti caste rationale w
other generally worded anti discrimination provisions [Art 15(1) etc - read Kalpanna Kannabiran]

They’re not opposing concepts,overarching idea of equality should include both layers of analysis,
when we apply to meaning of FRS, design of policies and laws justified under it
Is the preamble itself an interpretive aid for the FRs?
V literally, if we look at the status of the preamble, it wasn’t voted upon, just like the statement of
objects and reasons. So there was an argument that preamble doesn’t have the same democratic
legitimacy.
Over the last 25-30 years, the courts have clarified that preamble is not distinct from the constitution.
And it is an interpretive view.

Status and opportunity

This means that redistribution must not be just of tangible
resources, but also of social status. So the argument is that the
usage of the word “status” clearly indicates that the drafters wanted
to mark a break from the feudal society to a democratic arrangement.
The constitution here is trying to bring about a modern, democratic
arrangement. This is transformative intent → ‘of status’. So remedies
against practices that perpetuate inequalities were contemplated.
Substantive equality into 14 and other provisions.
Status and opportunity are not mutually opposite; but it is that
that equality must be looked at both layers. Status → duty of state,
reservation policies etc/ objective to enhance people’s social
status especially those who have been structurally excluded;
opportunities → material resources and their
distribution.[instrumental aim; electoral rolls]

Equality of resource v. equality of welfare (better idea of substantive equality, better than state
judging interests, take subjective view)
Core Distinction - is not subject matter of what’s being distributed, way of looking is different.
Long standing debate in political theory.
This argument is focused on equality of laws.
It is about how to pursue substantive equality.

Should the objective of liberal democracies be equality of material resources which then ensures
welfare[State Decides]. Or should it be equality of welfare itself, in that the citizens decide what
amounts to their welfare, and then the state pursues that goal. [Citizens Decide]

So an example of resources would be land-redistribution. Land to the farmer would in a few

generations turn into other material benefits such as education in a generation, etc.
But critics would argue that this approach by itself is not enough, and equality should be judged on
the basis of the needs of certain groups, rather than the govt deciding that land ownership is good
for them. So we should look at how these groups would use land ownership benefits over time.
Government Scholarship to poorer students would give access to education sociologists say
delivering scholarship not enough, you need to look at other barriers that the child faces
[environment of home; pressure to work other than study]
The critics also say – look at other barriers too, not just material.

Equality of welfare – more subjective. Equality of resources – more procedural.

Redistribution of material resources v recognition of identity based differences
The way in which diff groups receive these benefits vary. So the state must account for that through
recognition.

Distributive justice
How has the discussion shifted from equality of resources to welfare?
John Rawls[idea of fairness] said that the state’s commitment to justice is why citizens obey the state.
Merely being elected, i.e. consent isn’t enough as a basis for political authority. Especially in the first
past the post system, that consent is enough can be argued against. So consent has many challenges
to it. Consent is just a minimum content for legitimacy. Legitimacy of a modern liberal democratic
state. Lacuna - most modern liberal democracies tend to justify their authority by appealing to the
idea of popular consent. Socio or economic inequality he focussed on, using state machinery to
tackle it. Economic redistribution and enhancement of social status. Legitimacy based on popular
consent - criticised.

So Rawls writes about the duty of fair play. Perspective of citizen. Behind veil of ignorance(not aware
of each other’s strengths and weaknesses) in pre-political state then we must decide to choose
overarching principles to govern ourselves once we form part of political society governed by a
constitution. Commit to principles of justice - self interest. Participation in a democracy is like a
cooperative scheme, where citizens have benefited from the activities of the others and that of the
state, and hence, citizens have a moral duty on them to contribute to the success of all. Once you
choose to be a political society, you’ll agree on peaceful co-existence, but also overarching principles
that people must agree on.
Of course this is differentiated on the basis of the ability and status of the citizen. And citizens also
have self-interest for doing this, Rawls does acknowledge this. The point is that normatively, state
must take welfarist measures for all, to legitimate itself.
Rawls by and large is still at redistribution of material resources, through difference principle. He is
saying, we look at the state’s ability to deliver resources for the most disadvantaged (and this is in our
own self-interest) and then obey the state. So this is an extension of social contract, though a
complicated one.
Liberty Principle - collective interest helping in identifying limits in liberties, in addition to
individual interest.

5.08.2020

Theoretical Approaches to Equality

Rawl’s account of liberal democracies work (fair play) - lacuna in consent based approach to liberal
democracies, they should look at pursuit of material welfare
Principle of fairness for the citizen - we’re behind the veil so we have to choose. Normative principle
of justice. Differences in society could be understood in different forms (religion, caste) - advantage
and disadvantage. Idea of creating a political society -- with some sort of protection for the
disadvantaged.
2 principles of justice

1) Liberty principle - mutual liberty

2) Difference Principle - because we were unaware of differences among us; once we form part
of political society and agree to be governed by common gov, to be able to contribute to the
success of this government and ensure gov can work well and allocate resources for benefit
of disadvantaged, argument shifts from perspective of individual to state (make sure
problems are addressed). State also has an overarching moral duty to ensure that material
resources and opportunities and arguments about inequalities are addressed so that worse
off people are benefitted. Principle of redistribution marks out Rawls' work as different
from what other people had said in the liberal democratic tradition. People said he was trying
to inculcate socialist values, reconcile them with older ideas of liberal democracy, especially
when it comes to the state's role in managing or distributing economic resources.

Rawlsian Approach towards Distributive Justice Criticisms

1) Libertarians argued for limited state intervention, principle of fairness places a moral duty
on individual to contribute to success of public schemes, and on the state to redistribute
resources to tackle inequality, reflects expansion of governmental power, placing undue
restrictions on personal liberties of people, curtailing personal choices of people. Eg - Welfare
State starts deciding to ration goods on the basis of which are valuable, placing an artificial
limit on how people can use their own money and resources to consume goods. Libertarians
argue Welfare redistribution would discourage individual initiative and seek to deliver
benefits that are not valued in the first place. Debate between Noziek and Rawls. Noziek
says Rawls comes from a utopian position that believes that state has enough resources and
the will, taking on the expansive duty of ensuring an equal situation. He’s arguing for the
state's minimal role, concentrating on protection of life and liberty. [Free Market]
2) Critical Social Theories, Nancy Fraser [Social Justice in the age of Identity Politics] argued
that the emphasis on economic redistribution was inadequate to understand difficult
questions thrown up by groups which have faced cultural subordination and
marginalisation at a structural level. (Caste, Race, Religion etc. ) The narrow view on
economic redistribution is not sufficient to compensate for wrongs or to provide redress to
inequalities that are present. Should the state focus on resource redistribution, or State
should also take on a deeper moral duty to recognise identity based differences (which is also
equally important for the functioning of liberal democracy) [Redistribution v. Recognition
- Overarching Moral Duty of the State (modern governments)] We need to look at them as
joint objectives.

More questions - Can Affirmative Action that ensure representation for historically
marginalized groups effectively remedy centuries of social stigma faced by them. The
outcome of these policies is analysed to understand the impact of enhanced representation
while others say we need not focus on empirical evidence of results in the short run. Because,
if the stigma that led to the discrimnation in the first place is built up over centuries so
remedies cannot be judged in a short-sighted way, enhancement of representation of
disadvantaged groups is not simply a method of economic redistribution but it is actually
signalling a deeper recognition of the fact that structural discrimination has taken place and
efforts are being taken to respond to that, both at a symbolic and a material way. Whether
or not they are effective depends on one’s parameters of effectiveness and whether or not
those parameters adequately address the real reasons as to why the policy was created in the
first place. For instance, Reservation policies aren’t poverty alleviation schemes, it is not their
primary goal to ensure large scale redistribution of resources, the primary goal is to
acknowledge certain groups have been excluded from mainstream social economic and
political activities, and hence this creates a pathway for social and economic mobility which
 might in the long run contribute to economic redistribution but the same cannot be treated
as single reason to support or attack this.

Why would a dominant group assume the responsibility of contribution which entails
visible reduction in their resources and opportunities. [To what extent can the pursuit of
social justice rely on such ideals of self-affliction]

Amartya Sen [Equality of Resources approach initially] - instead of pursuing a subjective

standard of economic welfare and instead of leaving it to individuals, state must aim to create
and distribute welfare goods which enable people from impoverished and marginalized
backgrounds to enhance their own possibility of upward social economic mobility. For
instance, instead of focussing on increasing access to education through AA schemes, the
state must also invest in educational infrastructure. Investment in health care shouldn’t seek
from the private sector, but should seek to build health care infrastructure. Our thinking of
equality shouldn’t be reduced to tokenism and a top-down intervention which appears to
distribute valuable resources only but emphasis should be on requiring a remedy at a
grassroot level to expanding social and economic infrastructure so that population that has
been excluded from accessing rights and entitlements get a platform to protect their
interests.[Richer investments from the private sector only cater to richer segments of society
- medical tourism]. Literature not limited to Rawls. [Capabilities Approach - State must
work towards developing capabilities of disadvantaged to give economic mobility] Remedy
against discrimination - also part of a structure that state provides.

Michael Walzer - Spheres of Justice - he says there are different spheres of public life,
inequality in one sphere, we shouldn’t allow it to transfer or convert into benefit in another
sphere. Use the state's coercive power to tackle inequality’s movement from one sphere to
another. [Resources to fund their own electoral campaign; wealth over politics; rules in place
to limit] - state’s justified to limit finance[Walzer]. Inequalities based on social markers must
be filtered out in the criminal justice system(investigation and trial),the onus is on state
actors to acknowledge that biases exist and to create procedural rules which filter out these
biases. Theoretical framework - complex equality - response to inequality cannot be a simple
one wherein you by isolating a particular cause or aspect of inequality and create a policy to
counteract it. Inequalities cut across spheres of public life, law must acknowledge these
connections and push back against movement of these inequalities.

6.08.2020

Welfarists and free market proponent debate -

Invoking moral responsibility collective - is it actually possible to correct and compensate those
wrongs?
Compensatory discrimnation - does it actually give one a material goal?
Historial justice - it isn’t compensation in material form but comp disc in symbolic form, emphasis
is not on individual wrongs, but structural causes of exploitation

07.08.2020
Functioning of administrative machinery (police) - against a particular community - bias - CAA;
delhi riots
Part 3 - taking normative view of what the state can do
Anti - caste rationale : state must use resources to combat different forms of caste discrimination.

Article 15(2), Article 17, 18, 23, 24, 25(2)(b)

Article 15(Extends to non-citizen as well)

(1) Generic idea of duties placed on State -
(2) Narrower, more specific - response to caste based exclusions (solve physical segregation -
denial of access to public spaces - not specifically government control - in a more cultural
sense ‘public’ - constraint shouldn’t be placed based on their caste
Why were temples not included? As opposed to 25(2)(b) being a separate provision.
(3) Public - cultural sense
Article 17 - untouchability, removal of disability that arises out of untouchability (implication of
caste based untouchability)
Article 18(1) - titles based on land ownership, read in conjunction with land reforms and
redistribution to landless farmers. De-recognising old benefits. Shift towards egalitarian society.
Article 23(1) - bonded labour, trafficking
24- child labour
Design might seem caste neutral, Amb labour minister, relation protection of workers and anti caste
rationale

08.08.2020
Article 25(2)(b) limitation of freedom of religion, shouldn't be seen in isolation from anti caste
rationale
Exchanges between Gandhi and Ambedkar relating to annihilation of caste
Hinge anti-discrimination provisions to the constitutional goal of ‘fraternity’, rather than only
extension of the idea of ‘equality’. Fraternity assuring the dignity of the individual and the unity and
integrity of the Nation.
Question of access to public places, question of untouchability - state wanted to create remedies - is
not exhaustive of anti-caste politics of the society. Outside language of these provisions - statutes
etc.[Different laws might have several statutes relating to anti-discrimination- growing field]

Interpretation of 15(1)
Air India v. Nargesh Mishra - challenge based on 14, 15(1), 16(1). Air India Service Regulations 46
and 47: termination based on marriage or pregnancy. Difference in retirement ages. Court uses 15(1)
in a constructive manner as opposed to limiting the reading of the readings to applicable statutes.
3rd pregnancy is where grounds would come into play → criticised.
Court recognised gender based discrimination but also lays down an
odd qualification. Also tackle consequences of gender roles leading
to discrimination. Retirement ages - court doesn’t go far enough.

Anuj Garg v. Hotel Association of India

S.30 of the Punjab Excise Act - prohibited employment of men below 25 and women. Challenged
on 14, 15(1), and 19(1)(g); the court took a strict scrutiny approach; not only if the reasons of
classification were coherent, but also the objectives of the policy [Proportionality] - is exercise of
govt power proportionate to the objective to be achieved? Strict Scrutiny - is objective valid or not?
Objective was a protective form of discrimination. Sinha J. doesn’t agree with the policy goal,
violative of freedoms. Govt didn’t clarify if other steps could’ve been taken to ensure
protection.Court aimed to challenge policy rationale given by the govt to support a law drawing
classification between men and women - stricter scrutiny standard.

Navtej Johar
Law drawing classification based on hetero and same sexual relationships. The word sexual
orientation wasn’t there - but it can come under reasonable reading of anti discrimination provisions.
Broader principle of inclusion.
All 3 cases involve constructive interpretation of article 15(1) of the constitution. People from other
faiths can also enter - Jagannath Puri - people who don't practice Hinduism are not allowed.

Interpretation of Article 23(1)

PUDR v. UOI
Mukti Morcha v. UOI
Workers exploited minimum wages, cases outside the ambit of Art 23(1),
Second case - social action litigation
12.08.2020

Design of the Indian Constitution addresses the various forms of discrimination. It also ties up with
the debate between Gandhi and Ambedkar and how we should tackle caste-based prejudice and
other forms of discrimination.

Principle laid out in 15(1) but there are other provisions in the Constitution which allow state to
prefer their own residents while making policies.

Temple Entry Provisions - Article 25 (2) (b)

Sri Venkataramana Devruv v. State of Mysore [1958]

Court extends the interpretation of 25 in a logical manner to include temples which historically have
had a private status even. But 25 talks about temples of a ‘public character’
Appeal by trustees of the temple, managing on behalf of a community that a temple was a private
one and hence outside the purview of the Madras Temple Entry Authorization Act, 1947 which
aimed for the removal of disability of harijans from entering hindu public temples. The act had been
enacted a few months before the constitution and whether statutory provisions of this act are in
harmony with language of Art. 25(2) (b).
Court looks at history of regulation of the temple, and nature of its functions, finds it’s a public
temple, customarily thrown open to the worshippers belonging to the Gowda Saraswath Brahmin
Hindu community, no other filters on who may enter, except a customary exclusion linked to beliefs
of the group, preventing people from other castes, specially depressed classes from entering the
temple. Court noted that this is violating constitutional provisions which was meant to enforce
temple entry for everyone. Finds that temple entry provisions are not only valid but would also apply
to this temple trust. First SC case where an imp temple trust had gone to SC to argue that they’re
outside the ambit of the provisions. Temple by and large has a public character and comes under
25(2)(b).

Essential religious and secular religious practices of temples to determine areas wherein states can
and cannot interfere subject to religious denomination. Court recognises that there may be rituals
or practices of a community that are so intrinsic that a restriction may be placed wrt the entry to
inner sanctum but in case of a temple’s functioning regular hours, customary restrictions shouldn’t
be in place.

Sastri Yagnapurushadji v. Muldas Bhrurardas Vaishya

Appellants claimed [Swami Narayn Sect - Satrangis] filed representative suit, case was about seeking
a declaration that relevant provisions of bombay harijan act wasn’t applicable because religion of
their sect was different from the Hindu religion. Seeking injunction stopping harijans from entering
temple. Example of how a dominant group is trying to circumvent their obligations flowing from
the text of the articles.

Basic reasoning- carried forward in the Sabrimala case.

Indian Young Lawyers’ Association v. UOI
Addressed by a constitutional bench but referred to a larger bench, clubbing it with other issues,
requiring balance between religious freedom and gender equality on the basis of ‘thematic identity’.
Temple did have a public character. Argument about nature of discrimination in the customary
practices. No problem in locus standi as pointed out by Indu Malhotra in her dissent because it was
a social action litigation. Dissent in terms of role that courts can play in interpretation of religious
practice.

Think about the logical link between art. 17 and art. 25(2)(b). Can taboos of menstruation be
compared to caste-based discrimination? People have said social history that went into framing of
anti-case provision is on a different basis.

Judgements on Educational and Employment Reservations

The phrase ‘backward classes’ first used in 15(4)

Whether 15(4) and 16(4) are enabling provisions - or can they be applied directly? Can the affected
group come to court and claim remedy?
Court has seen as enabling provisions which puts the onus on the state to create a specific reservation
policy by statute or administrative rules.
- Champakan
- Balaji
- T Devadasan
- NM Thomas
- KC Vasanth Kumar
- Indira Sawhney
- EV Chiniah v AP
- M Nagaraj
- Ashoka Kumar Thakur

Provisions:
15(4)
First amendment – says “special provisions”
Responds to Champakan Dorairajan.
“socially and educationally backward classes” or SC/ST
This signals that state and central govt.s can extend reseravtions beyond SC/ST. but the debate is
what are these socially and educationally backward classes
15(5)
93rd amendment – 2006.
Reservations in private unis
15(6)
EWS – last year.
16(4)
Employment
Responds to a lot of changes through consti amends
“backward classes” (broader than 15(4) is the question, since 15(4) uses socially and educationally
backward.so are they the same or different?)
16(4)(A)
Promotions
16(4)(B) nagraj - BS
Carrying forward vacant seats from one year to another
16(6) EWS – 103rd amend. 16(3) Residence requirements ,Domicile 341, 342
Central govt notify groups which can be SC and ST. Presidential orders do this generally. 338
National commission for SC. 338(A) For ST. In 2003, they were separated.
Both these are CENTRAL govt functions. Sate govt have powers under 340 only for OBCs. Now
under 103rd amend, even the central govt can identify OBCs, with the Backward Classes
Commission.
13/8/2020
The courts have by and large looked at 15(4) and 16(4) as ENABLING provisions. So the onus is
still on the govt to make a statute or an administrative orders. Textually, 15(4) can apply to anything
– beyond education and employment because the text says “any special provisions”.

State of Madras v Champakan Dorairajan:

A private party identified as a Brahmin woman questioned a GO which created a reservation policy
for backward classes in medical colleges. At that time the medical colleges weren’t too many, and
getting a medical seat would be seen as a sign of professional and social mobility. The GO listed out
castes which today would be considered OBCs. So since castes other than SC/STs were included,
she argued that the GO was violative of Art. 14, 15, 29(2).
The argument was that it was discrimination based on caste alone. She argued that the rights of the
upper caste community would be affected.
The main argument we consider is Art 15(1). The Madras HC voids the order. And the govt appeals
to the SC.
State govt argued that 15(1) is not violated. 16(4) could be read constructively alongside the DPSP
Art 45, and then this expanded reading could justify the GO.
The Court says that there is no explicit basis for reservations in educational field and strikes down
the order.
So the central govt now amends the constitution and adds 15(4).
If we have to look at reservations as anti-caste measures, the Courts need to have a constructive and
expansive view of the Part III provision – Kannabiran’s arguments.

14.08.2020
MR Balaji v. State of Mysore
State govt issued a GO that a large number of castes for the purpose of admission in educational
institutions. Number of caste included was much larger than dorairajan. Intent of the state
government was to increase representation. Included by name rather than any criteria for
‘backwardness’
Major Argument - 1) Basis of reservation not clear by State Gov - the castes included were actually
‘socially and educationally’ backward [Article 15(4)]; No real clarity, this amounts to violation of
15(1), demarcation based on caste identity
2) quantum of reservation exceeds 51% [68%] - aggregated reserved > unreserved
3) idea of inclusion of people from other religions in the list by State Gov
No commission, govts own finding.
SC favours the petitioner, Example of court pushing back against reservation policy.Adequate
empirical criteria not provided.Aggregate ceiling on reservation should be imposed. 50% rule is a
Judge made rule rather than text of the constitution. In 3rd question court says no statutory
authority on the religion question. Argued that people can’t convert to other religions because of
this, in order to escape the ritual caste hierarchy. Rejects the linkage w religion altogether.

T Devadasan v. UOI
16(1) and 16(4) read together - carrying forward vacant seats. Rejects proportional test idea. 14-based
analysis to say there needs to be parity between reserved and unreserved seats. Reservation only at
point of entry. Subbarao J. dissent becomes basis for NM Thomas case. Wherein they’d provided
for provisional promotion reservation. Idea was that SC/STs had been given at the point of entry.
Kerala gov made policy for sc/st for reservation provision on a provisional basis [2 year grace period
for clearing the department test] - employees were required to write an exam. 5-2 majority in favour
of Kerala govt - grace period etc can be read into provisions 16(4) [ensuring larger representation of
backward classes - expansive reading of it]. Marks a break from skepticism about reservation policies.
Krishna Iyer J. wrote it. 16(4) shouldn’t be read in a strict textual manner, should be read as to
include protection in later stages. Historical Justice and Subordination. State gov trying to advance
the goal of equality, which enhances representation by allowing relaxation of two years. Opening up
new possibility of interpretation of 16(4).

16(4)(a) - promotion, reservation post the entry point

17.08.2020
Thematic Overlaps w Article 14 and 16 - Champaraka dorairajan
Pointing to existing reservations - 1st amendment - 15(4) to the text of constitution - socially and
educationally backward classes

Article 16(1) deals with general principle; 16(2) non-discrimination

wrt public employment(descent, residence - qualified by 16(3) -
allows UTs to prescribe the requirement of residence in their
respective territory when they lay down eligibility. 16(3) is usually
the domicile reservation. 16(4) main provision dealing with
reservation in public employment; ‘backward class of citizens’ that
haven’t been adequately represented [ Used Apart from sSC/Sts] Other
groups required to be identified by the State that aren’t adequately
represented. →is other groups' identification a different matter
altogether? 16(4) and 15(4) operate differently in two spheres of
public life. 77th Amendment - ‘promotion’ added to 16(4)(a). [M.
Nagaraj Case - Ambit of Provision 16(4)(a)].
16(4)(b) - carrying forward of vacant reserved seats, despite exceeding the reservation limit because
it is from the previous year. Legislative response to observations made in Devdasan wherein carrying
forward wasn’t allowed. [added through amendment]. 16(5) - allows for exclusion based on religion.
Has to be read as an extension to Article 26.

Kv Vasanth - too much interpretative leeway being given to state government (petitioner) to cherry
pick and decide which groups to include and which to leave out. Mysore - most leaders belonged to
the OBC community. Backwardness cannot be determined by school enrollment but by other
factors such as land owned etc. [Vasanth]
Kakakalelkar Commission appointed in 1953 is the first backward classes commission at the central
government level - had recommended inclusion of over 4000 caste groups into a list of other
backward classes. Central government didn’t act on that report. Mandal Commission Report. [After
Indira Gandhi came back into power]

Here, the groups in question aren’t SC, ST. They are agrarian castes who now got electoral power
and are now demanding reservations. So this is the political context in which the petitioners question
the very open textured interpretation of 15(4) and 16(4). The narrow legal question is still inter
category transfer. But the judgement also looks at the scientific criteria for 16 and 15(4).
Court says that practice is not permitted. The court disagrees with some observations of the 2nd
commission, but doesn’t really interfere much. While this case was pending, the state already created
the 3rd commission.

Indira Sawhney:
So far we have seen only state level commissions for OBCs and then legal challenges to these lists.
But in Indira Sawhney, for the first time, the central govt had accepted the recommendations of the
Mandal Commission. State govts were using the power under 16(4) right from the 50s, some even
going back to colonial times. By the late 80s, the demand was for a national level OBC reservation.
The congress for this appointed a central level commission – Kaka Kalelkar comm, which is the 1st
central BC commission – submitted its report in 1950. This comm recommended more than 4000
caste groups for reservation at the central level, but the centre did not act on this recommendation.
Indira Gandhi lost the election after emergency, Janta party came into power. This was a coalition
of many groups which were supportive of the agrarian castes. There is a link b/w the rise of these
groups and the demand for OBC reservations.
The Janta Party appointed the 2nd BC Commission – and this is the Mandal Commission Report.
Submitted in 1979. The recommendations weren’t implemented until 1989, when the Janta Dal
came into power (another coalition). There was pressure on them to implement the Mandal
Commission.
The recommendations were 2 fold: 27 percent quota for BCs at the central level (consistent w 50
percent), 10 percent quota for the EWS (enacted in 2019). So in 1990 august, the govt accepted the
1st recommendation.
The Mandal Commission criteria – 3 fold (used by the comm):

Held - Favour of central government’s order to give 27% reservation.

18.08.2020
Criteria for backwardness - Mandal Commission
8 questions that the court has clarified in this judgement; minimum criteria cannot be sacrificed.
N. Nagaraj tomorrow
Vasanth Kumar - unfilled category seats; can they be moved forward?
The Mandal Commission criteria – 3 fold (used by the comm):
Main q is caste alone or caste + economic or just economic
Court says Mandal report criteria does make sense, they don’t interfere with the criteria. They
uphold it. 50 percent should be respected, but they qualified it by saying that this is only for vertical
(SC, ST, OBC). Horizontal reservations (domicile, women, PWD) aren’t counted for the 50 percent
limit. Court says that subclassification is permitted. Court says the government should prescribe
economic criteria for creamy layer. Judgement is unanimous that creamy layer is not to be applied
to SC, STs. Nature of disadvantage historically suffered is v different. That’s good reasoning because
we are justifying SC, ST reservation on compensatory discrimination. Even now, the central govt
has not extended the creamy layer to SC, STs. Majority also says that reservations can’t be for
promotions, but NM Thomas clearly allows for it. So it was relitigated multiple times later, even
contradictorily, then 16(4)(A) is added in 1995 which says that promotions are also reserved ONLY
for SC, ST candidates (this is clearly against what the majority said in Indira Sawhney, which said no
reservation at all for promotions)
16(4)(A) was then challenged in M Nagaraj. Providing for reservations in promotions is actually
violative of basic structure was the argument there.

19.08.2020
Nagraj
Basic structure challenge.
The idea of BS is that parliament’s power to amend the consti is not unconstrained and when the
parliament amends, the court will examine if the effect of that amendment is to undo the basic
structure.
In Indira Sawhney, BS wasn’t used at all, no substantial debate on whether equality was undermined.
The debate was largely around the design of reservation policy.
Nagaraj however is a direct challenge. The petitioners argue that addition of 16(4)(A) and 16(4)(B)
are violations of the principle of equality. The issue here is not so much the policy of reservation, but
the constitutional amendments which undid the court’s holding.
Both 16(4)(A) and 16(4)(B) are upheld, but with some qualifications:
The words “in the opinion of the state” simply cant be a subjective opinion expressed through
executive order or legislation. The opinion of state means EMPIRICAL EVIDENCE of
backwardness and evidence of underrepresentation.
And the court specifically says that when we look at underrepresentation, we need to look at
underrepresentation in that particular cadre.
The court doesn’t talk much about 16(4)(B), it is upheld. The larger discussion and the more imp
point is 16(4)(A) and the requirement of fact finding through a commission and the requirement of
cadre/dept wise enquiry for underrepresentation.
The court later has used this test to strike down state govt policies.
Those in favour of reservations principally don’t like M Nagaraj since it limits the power of the govt.
They argue that underrepresentation is bound to be the case and having the government prove it at
every stage and dept has transaction costs.

Important observation - Governments at all levels must show empirical evidence to demonstrate: a)
social and economic backwardness of the group b) underrepresentation in the particular cadre in
question [Critique of this judgment - Made it harder for govt to implement reservation because the
onus is now on Government to show backwardness and underrepresentation - interpretation of
16(4)(a)]
Important - 9 judge bench, reconsidering previous judgments
11 criteria of backwardness - mandal commission
Devadasan had disregarded the 50% limit

1) Should reservations(stemming from 15(4) 16(4)) be seen as caste based discriminiation or

can we agree its discrimination based on caste and other factors?
2) Thumb rule - aggregate reserved should not exceed aggregate unreserved; there is 50% ceiling
but complication of carrying forward unfilled seats can be seen later, wherein it might exceed
50% [ Devadasan talks about ceiling for SC/ST category]
1995 recommendations cases: vir pal chauhan, ajay singh : vacants seats being carried
forward for SC/ST/OBCs
Subclassification: older practice by state govs where they identified backward classes apart
from SC/STs
Creamy Layer exclusion principle was applied to OBCs by the government
Narsimha Rao - Income Limit must be applied [recently been revised to 8L]
Groups or caste identifying with other religions have also been included in the list -
subclassification based on religion

Nagraj 16(4)(a) challenged - should there be reservation in promotions or just initial state of
employment? [For SC/STs - brought as a response to Indra Sawhney - narrow] 16(4) was for
backward classes.
Indra Sawhney is analysing the 27% ceiling; efficiency considered, other forms of internal assessment
for promotions [vertical hierarchy], 335 is not a core provision and only providing criteria on how
promotion should be given - court noted; majority didn’t agree with reservations in promotional
level but only entry level for jobs
16(4)(b) inserted through 77th amendment
Nagraj offered a challenge based on basic structure doctrine [apart from FRs, there are structural
principles that are read in the design of the constitution and cannot be undermined; parliament’s
power to amend is not unconstrained] for arguing both 4(a) and 4(b). Petitioners were tackling the
subsequent amendments, not the reservation policy itself.
Kapadia J. clarifies 16(4) is a parent provision but the opinion of state is not subjective, before policy
was designed, opinion of state should mean empirical evidence of backwardness, data to show
underrepresentation of groups, which court can asses to find whether the finding has been done
properly. Court trying to create limitations on State government, but on 4(b) it doesn’t interfere.
Court gave interpretation of 16(4)(a). Making it onerous because transaction costs involved in fact
finding.

BK Pavitra -1 [upheld Nagraj]

Examines long term implications of nagraj, court had struck down a reservation law in karnataka
which had tried to expand reservation in jobs because they hadn’t recorded empirical evidence.
Court had relied on this observation (nagraj) to strike down order by karnataka govt for reservation
in promotions. This was reconsidered in Jamnail Singh.

Jarnail Singh v. Lakshmi Narain Gupta

Govt pushed for reconsideration of Nagraj. Court clarifies Nagraj position (2-step test). AG argues
that the restriction placed is very onerous. Demonstrate S&E backwardness of SC/STs, which
according to him is inconsistent with observation in Indra Sawhney where discrimination faced by
SC/STs was distinguished from other classes -- venugopal’s arg- court in IS had rejected the extension
of creamy layer exclusion to SC/STs precisely on the logic that the nature of disadvantage faced by
SC/STs is more onerous and stigmatizing in comparison to underrepresentation of backward classes
in government services. Contradiction between IS & Nagraj saying government should show
backwardness and underrepresentation both. Govt’s arg- this has made it harder for us. Court noted
that IS observation must prevail over the finding in Nagraj. Requirement of demonstrating
backwardness only restricted to underrepresentation in the concerned department, as opposed to
reopening the question of backwardness of groups concerned. SC/STs in spite of marginal upward
mobility are still considered to be SEBCs and no need hence for govt to demonstrate their
backwardness, the observation imposed by Nagraj was done away with. [J. Nariman]
Underrepresentation would have to be seen - upheld in BK Pavitra 2.

BK Pavitra 2
In light of Jamnail Singh - narrowing down Nagraj’s implementation.
Current position - State govt must show evidence of
underrepresentation of SC/STs at a particular level to implement a
policy of promotion. Net consequence of Jamnail + BK2 → Nagraj to be
read in a narrow way - only underrepresentation to be demonstrated
by State govts.

EV Chinaiah v. AP (2004) [5 judges]

Orders were passed by govt. AP govt had appointed commission - shetty commission, recommended
that SCs can be subclassified into 4 categories for targeted delivery of reservation, adequately
distribute resources among SCs for govt jobs and state education institutions. Composite socio-
economic criteria was used by the commission which recommended the sub-classification. SC strikes
down the order because it is not open to the State Government to modify the list. Indra Sawhney
seems to endorse sub classification between backward classes based on income. In this case, the court
said these methods of sub classification shouldn’t be applied to SC/ STs. AP government’s attempt
struck down. But there is such sub classification in OBCs - religion, creamy layer, backwardness.
Power to identify sc/st exclusively w central government, power to do so w backward classes w both
central state government. SG doesn’t have power to modify the central list of SC/STs. Thus, sub-
classification by state government was seen as an encroachment to the union’s power seen from a
lens of federalism. There can be no further sub classification between SC/STs so the order is bad in
law. Object of making sure each category gets reservation was defeated by court in this case. Deep
anxiety that certain communities have gained more resources than others.

Difference between 15(4) and 16(4)

Article 15(5)
No private universities, privately run higher institutions were brought within the scheme of
reservation of OBCs by 15(4) prior to 93rd amendment which brings in 15(5). Pvt education
institutions claiming linguistic minority.
Article 30 meant to cover such situations - safeguard for minority institutions to impart education
important to their own identity, rejecting state intervention, protect their culture. But, over time
many new institutions in southern states started adopting protections given for linguistic minorities
under article 30 as a way of resisting state intervention -- as a shield against state regulation. [Islamin
Academy v. State of Karnataka etc. - pvt institutions claiming minority status to resist govt
regulation] Pvt run institutions weren’t following reservation policies given by state government. --
will be covered in Module 8. Malpractices, other unusual ways taken by pvt institutions for
admission, no uniformity in reservation policies followed as such. Muslim universities would have
muslim reservation, Manipal claimed and used linguistic minority quota and in effect made it a
management quota, christian institutions demanding autonomy. All of this is linked to 15(5),
because in response to this litigation and later cases opposing government’s interference in matters
such as fee regulation, govt inserted 15(5), Congress came back to power on promise of
implementing OBC reservations in central and gradually state higher institutions.

93rd amendment does two things -

1) brings 15(5) into the text of the constitution, as a response to litigation where private higher
institutions were trying to oppose implementation of reservation policies brought in by the State
Government. Extending the power of the State for creating reservation for SEBCs and SC/STs to
pvt institutions over and above (superseding) the rights flowing from 19(1)(g) [which gives rights to
practice profession/business of -- colleges were using this right of choice to oppose govt regulation]
2) Apart from that, a central law was passed called Central Educational Institutions (Reservations &
admissions) Act by way of extension of meaning of 15(4)- identifies universities funded by central
government where 27% quota for SEBCs was being introduced for the purpose of 15(4) to
implement reservation, extending 15(4) to allow central institutions to have reservations for SEBCs.
Scope of 15(4) applied to centrally run institutions. No concurrent law for extending it to privately
run institutions though - matter left to future governments.

Ashoka Kumar Thakur v. Union of India (2009) -5 judge bench [2008 SC]
Looking at two things:
1) Addition of 15(5) - whether it is constitutionally permissible and whether BS challenge can
be sustained against it, and
2) whether extension of application of 15(4) to include reservation for SEBCs in centrally run
institutions is permissible or not.
Lead opinion - KG Balakrishnan J. - IS has already upheld extension of reservation for OBCs for
central govt jobs under article 16(4) and by analogy if central govt is going to use the Mandal
Commission report and the list of castes included in state and central list for the purpose of
extending reservation to Socially and Educationally BCs then govt has in fact looked at social and
educational backwardness apart from economic backwardness to identify and include castes. The
majority essentially extends IS’ reasoning reservation for Social and Educational backwardness are
permissible and central govt is experimenting and building on that by applying it to centrally run
institutions, and this extension would be subject to 50% ceiling as laid down in IS and with other
qualifications wrt creamy layer exclusion. It reiterates the key findings of IS and compares domains
of higher education and govt jobs, doesn’t account for arguments made by petitioners such as that
already reservation has been given, so defeating the purpose of diversity, and that 15(4) shouldn’t be
extended to centrally run institutions. Court ignored this and upheld the central law. Reiterating
spirit of same recommendation.
Veerappa Moily committee
The central law was met by widespread criticism and protests by IITs and AIIMs, leading to a
committee being appointed by the government led by Veerappa Moily. Simple solution by the
committee - Institutions covered by the act would have to expand their intake in such a manner that
existing general seats won’t be affected, and enough seats would be added so that 27% reservation for
Social and Educationally BCs could be implemented. This issue has become non contentious over
time. 27% quota has thus become the norm.

Question dealt with Dalveer Bhandari J. in his dissent extension of reservation policies to privately
run higher institutions
(Majority Opinion) Balakrishnan J., Thakkad J, Ravindran J. - all agreed that apart from upholding
validity of extending socially and educationally backward classes reservation to centrally run higher
institutions, the govt is also justified in putting 15(5) in the constitution, which allows the govt to
implement reservation policies in privately run institutions, there is anyway an exception for
minority institutions - which is a compromise. No concrete law to implement 15(5) so far. They said
let’s wait till pvt parties come to the court, when the state/central gov makes such a law; they’ll point
out the constraints and violation of rights they are alleging.
However, 2nd question of extending it to pvt institutions - Bhandari J disagrees here with the
majority opinion, and finds that there is no conceptual basis for govt of the day to empower
central/state gov for prescribing the same reservation policy that exists in central institutions for pvt
institutions as well. Limitation on 19(1)(g) which is placed in 15(5) is itself violative of BS because
by extending it to the private sector - fundamental right was being curtailed. He was trying to protect
the private sector and institutions that were not able to claim minority status.

Society for Private Unaided Schools of Rajasthan v. UOI [2012 SC]

● Context - RTE act 2009 enforced in 2009 followed by the constitutional amendment(2002)
which added article 21(a) into the constitution - right of children in compulsory education
b/w class 1 to 8. The Government passed the RTE act to enforce the amendment. RTE act
was challenged, on the contention that section 12(1)(c) of this law was violative of 19(1)(g)
because it required earmarking 25% seats for economically weaker sections’ students. The
law also provided for fees to be corresponded with fees charged by govt schools.
● Validity was upheld by Majority in this case - of article 21(a) and section 12(1)(c) of the RTE
Act.
● Court said education cannot be compared with any regular commercial activity, there is an
element of public good involved in the delivery of education, rights flowing from 19(1)(g),
govt must put forward its own interests as reflected in 21(a) -- in such balance of interests of
government and pvt schools, 21(a) shall be given priority, hence the validity of EWS
allocation was upheld. [Kapadia J.]
● Dissenting opinion - Radhakrishnan J. mirroring Bhandari’s dissent in Ashoka Thakur - asks
why are 19(1)(g) rights being limited?
Pramati Educational and Cultural Trust v. UOI [2014 SC]
● Court upholds validity of article 15(5) and 21(a) against objections based on Basic Structure
Doctrine
● Reiterating majority views in Ashoka Thakur and Pvt Unaided School which emphasise
both the responsibility of the state and pvt sector in enhancing access to education; say that
while there are rights flowing from 19(1)(g) which would be implicated in the management
of schools and colleges but those rights cannot be given such a high status that the govt is
prevented from creating welfare measures meant to enhance access to education for
disadvantaged sections -- example of horizontal application of fundamental rights.
● Enforcing responsibility on pvt institutions

Textually, Indira Sawhney says that 16(4)’s BC is broader than 15(4)’s SEBC. “SEBC” requires more
parameters. But for all practical purposes, most govts have made same lists for both. But Indira
Sawhney is quite clear that 16(4) is broader than 15(4). But state govts have conflated the 2. And
when state govts have appointed Comms, they have submitted conjoint reports for both.
After AKT, some states such as Guj and Kar have distinguished.
So all in all, 15(5) and 21A are constitutionally permissible.

21.08.2020
[copy from sidchus notes]
Power of 15(4) can extend to state government’s power to residents SEBCs as well (Something of
this sort he said)

Saurabh Chaudhury case - dealt with aiims admission, delhi colleges only had 15% all india quota…
and some delhi residents entered through all india quota - some who had graduated entered through
all india quota for PG - State can decide whether it will be allowed… court said that institution has
some discretion in this matter (Im sorry dude this sucks)

Objective of creamy layer to enhance representation - critique of indra sawhney

Discussion moving from allocating resources to identify more

backward classes → identify more caste groups

Religious minority within the SC/ST/OBC list - happened in Kerala

2009 order AP High Court struck down Congress govt’s order to bring in religious minority into
OBCs.
Separate electorate; Poona pact - (Siddharth C. argues that reservation for education and
employment should be treated differently from reservation in electoral politics, and further says that
State has erred by treating them similarly [he is also coming up with his thesis which he hopes to
publish in the coming weeks sorry for writing bsly2 love u ) Depressed classes; integrated electorates
with some seats reserved - for muslims and sikhs [Religious representation]
243 B, 243 D addresses 243 C panchayati Raj
C & D how to implement reservation
1/3rd seats for women
Intersects with SC ST reservation

Dr K Krishnamoorthy v union
Extends reasoning of IS; state must demonstrate w empirical evidence - backwardness : to domain of
electoral representation
Distinctive way in comparison to educational

Article 1371(f) - reserved for buddhist monk - upheld [influx in sikkim from nepal] religious order -
unique historical situation - court allowed reservation on religious lines (tuensang district)

331, 333 - seats + provisions to nominate anglo indians in lok + vidhan sabha
Provision for seats hasn’t been continued due to resentment among anglo indians [95th
amendment]
Constituency of Assam has changed over the years and hence no ST reservation in f
330 5th and 6th amendment
Governor
Asymmetric federalism

Module 5: Enumerated Freedoms

24.8.2020
Need to read the rights together.
Article 19 is the longest since it lays down rights and restrictions. The initial idea of reading
reasonableness into 14 comes from 19. The idea that the right to life can be taken away with “law”
also comes from 19. 19 is thus seen as a balancing article. But is there no balancing with other articles?
Speech and expression is a basic democratic right.
What 19 is doing that by pointing out these rights, it is pointing to the substantiveness of certain
basic rights. 14 and 21 could be taken to be abstract rights, subsuming 19. But the fact that u wanted
specific enumeration in 19 is imp. So by doing this, we are putting these rights beyond democratic
process. So we make them to some extent untouchable.
But on the other hand, at the same time, we have conferred a right on the state to regulate these
rights. So what does it mean when the constitution talks about rights and restrictions? What would
have happened if we didn’t have these restrictions at all? This is the crux of judicial decisions.
19-22 form a cohort. But the nature of the right under 19 and 20 is quite different. 20-22 constitute
a very specific set of rights which talk about right to liberty, and were read as distinct (in the initial
years of interpretation of 21). 21 in its origin is looking at liberty in terms of physical freedom but
19 rights and interpretation of 19 rights are rights of free citizens (those not accused of crimes) So it
is a right to be a part of civil and political society. So these are rights which are important to constitute
a society.
The link to citizenship with Art 19 rights is very important.
How do we look at freedom of speech as a manifestation of personal liberty or do we look at it as a
citizenship right of a member of a political community: If it is the former, u talk about particular
forms of speech. Such as right to dissent, and right to question. This right then is v distinct from the
“marketplace of ideas” speech thought. In this concept, we say that speech can’t be restricted. Only
the actions arising from the speech can. These 2 theories are important to understand the scope of
restrictions. How do we look at speech’s importance – for democratic reasons or for
individual’s liberty. The other dimension to these rights is what Austin says fundamental values
of the Indian constitution. We balance the 19 rights with larger democratic principles.
In the 1st amendment, we saw changes to 19. The initial set of decisions of the SC were not in
consonance with the original understanding of the drafting of 19. Austin identifies Indian
constitution in terms of a seamless web with 3 strands:
Need to protect national unity: As we read the restrictions on 19(1), we see public order, friendly
relations. So all of these are equally imp. Part III does give a hierarchy of basic rights (14, 19, 21). The
idea is that while FRs are very imp, one cant argue that they are more imp with other constitutional
values/goals. FRs are not the whole of the constitution. The other way of reading is that say, art 14
is not exhaustive of equality. Equality in this sense is the foundation of democracy. The idea of
representative democracy is in itself equality. SC in Basic structure says that rights in essence are part
of the constitution, not their text as such. So rights as they lead up to democratic principles are
important. So rights are not an end in themselves in this conception, but are instrumental (to
bringing accountability, for example). The constitution has to be read in this way. So w federalism,
different rights, preserving secularism, socialism etc, speaks to this idea of unity within difference.
So we are trying to create a particular country in a particular way. So national unity in a particular
way.
Social reform
This is a v divided society, on all possible intersections of identity, which need to be recognised. We
need to build a country by recognising these identities. So reservations in public employment,
religious freedoms, speak to social reform. While retaining the right to freedom of religion, we made
it subject to social reform. So religion was seen as divisive.
Democratic values
First 20 years of the consti was about balancing right to property with land distribution. The
question of sacrificing rights for larger interest was a necessity. Why the state couldn’t pay
compensation – They acquired land in a colonial regime. So should the newly created state
compensate them for their benefits in the colonial era?
So this is the conflict b/w rights and social reform.
While we wanted rights to be enjoyed by people, we also believed in democratic values. This is an
idea of conflict b/w rights of an individual v. right of a society. The balancing here is not w state
power. We are still maintaining the distinction b/w the right and the restriction. Like 15(4) is part
of the right, restrictions aren’t a part of the right.
What is imp here is that we need to see the scope of the right
What forms of speech are protected
Can the restrictions on the right to business take away the right to business itself? The Court said
yes. Subba Rao said even illegal liquor is a business and hence it is protected and then the state takes
it away. But when we say that it is not a business at all, what is there to protect? So first we see the
scope of the right . Is it protected speech? Then we state action -- law. Then we fit it in restrictions.
The other way is to say no speech itself is protecting (even if it is a speech that incites violence). The
person who makes the speech can be penalized but the speech itself cant be censored. This is the
marketplace of idea type of thought.
The former idea needs us to see whether the form of speech is linked to democratic values and see
whether the form of speech was worth protecting. Here again, we see speech itself incrementally. In
this course we will see the
Earlier cases -- Gopalan, kharak singh
Later cases -- Maneka
Latest
UAPA, preventive detention, right to internet, privacy. Contrast this with the earlier cases.
Do all rights in 19 have a consequential approach. First 3 rights in 19 – yes. Latter – no.
If we say only some speech is protected, there is a pro and a con. The pro is that we are saying
democratic speech is worth protecting. The con is that we can define the speech as democratic in a
way that is restrictive. So in this approach, 3 steps: Rights, Law, Restrictions
The other approach is to look at only restrictions – all speech is protected. Look at only the type of
restrictions. Ex: Prior restraint for example looks only at

25.8.2020
In para 2, page 1 of the reading, Austin makes an imp point
During the Nehru years, remedies were sought through 1st, 16th, 17th amend.sThey were
multipurpose a mend.s, they brought about far reaching amend.s to all parts. (368, 13, 15, 19, 9th
schedule, 31A, etc). Multi purpose means that it does a lot of things. These amendments came due
to how the SC read rights, particularly property. So read them all together is what Vasanthi says.
These amendments (listed above) were brought about by Art 19 rights, particularly property. Here
when we talk about the constitution, we are saying that the state should function in a certain way.
This is again the idea of constitutionalism. Constitutionalism comes in centrally from FRs and goes
to all other parts. FRs by themselves aren’t a part of the seamless web. But by giving effect to
democratic principles, they’re a part of the web. At the time they were being drafted, FRs weren’t
distinguished from the DPSPs, or state power to legislate. Austin says that the 2 branches disagreed
SO WHO INTERPRETS THE CONSTITUTION?
When people claim FRs, they are claiming the right to interpret constitution. It’s not just the
judiciary or the legislature but also the people. When there are controversies before the court, they
are entangled questions. We will need to separate the different issues and see different principles. So
this course starts the disentangling with FRs.
Why is seamless web imp
To understand the controversies around the art 19 rights. Rights represent democratic principles.
Along w democratic rights enlisted in 19, we also have restrictions. Each of the restrictions is
linked to DPSPs, which are the social revolutionary goals. So these DPSP undergirded
restrictions can conflict with the rights. 19(2) – democratic 19(1)(a) right is constrained by
sovereignty. While we have demo rights, rights do pose a threat to national security. So when do
rights pose a threat to national security and when do rights reinforce democracy? For instance, the
question of PD. How can we confer FoE and then on the other hand say that one can be PDed. How
do we then read 22? As something that allows PD or (…) So how does one read 19 and 21 and 19
and 22? PD itself doesn’t appear in 19(2). SOvereignty, integrity, incitement, blah blah appear in
19(2). Now can we say that a law made under 22 should be tested on the grounds of 19 or 22 alone?
So the q is – should 19 be read standalone or with other articles?
AK Gopalan:
The petitioner invoked (1)(a) and the freedom to move. If we read these disjunctly, the freedom to
move freely are only subject to specific constraints and PD isn’t one of them, under normal
interpretation. This also brings us to the core of the nature of the rights – civil or political? 19 is only
for citizens. Though later on position changed. So is 19 available for those who are free citizens or
those who are under PD too? The initial interpretation – these are civil rights and not political rights.
These are the most basic of rights. So how do we read them as only civil rights and not political
rights? And what would happen if we did this divide?
If FRs are seen as such imp rights that they can’t be taken away, this runs into 368 power. Ultimately
we had the BS[Basic Structure] theory. Initially, BS didn’t include FRs but now we understood the
essence and democratic principles of these rights.
If today we have expanded the scope of FOE to sexual orientation, can we also say that right to vote
is a FR? PUCL says the right as such is only from 326. But the freedom to vote is located in 19. If we
look at the right to vote purely as political, it wont come under 19 at all. But when we look at speech
and expression, it is v difficult to say if it is civil or political.
What did we do so far in this v scattered class: 3 strands in Rights, restrictions, larger constitution;
Amendments – institutions; Multipurpose
While the rights are grouped together, we need to distinguish them. This is evident from the
restrictions. We could have had a general restrictions clause. But we have specific restrictions for each
right. (1)(a) is subject to more restrictions. Original (1)(a) was subject to 19(2) – libel, slander,
defamation, contempt, decency, morality, undermines the security or tends to overthrow the state.
So why were these restrictions not sufficient. Shalabala (..), Brij Bhushan (…)
Romesh Thapar
Widest interpretation – marketplace of ideas – no prior restraint. The Government banned
Crossroads under a public safety act. Now public safety is NOT a restriction under 19(2). UNLESS
we say that the law seeks to restrict freedom of speech in the interest of public safety wherein the said
speech is directly undermining the security or tends to overthrow the state,. So is it enough for the
legislation to simply say that they fall under some restrictions, or do we actually investigate whether
they in fact do?
Since these 3 cases were on statutes based on public safety, it was easy for the court to say that they
are not a part of 19(2). The theory here is that u need to demonstrate the connection b/w the law
and the ground mentioned in 19(2). If no connection, it would fail. The reasonableness of the
restriction is NOT relevant.
“Apart from libel, slander etc. unless a law restricting freedom of speech and expression is directed
solely against the undermining of the security of the State or the overthrow of it, such law
cannot fall within the reservation under cl. (2) of art. 19 of the Constitution, although the
restrictions which it seeks to impose may have been conceived generally in the interests of public
order. Section 9 (1-A) of the Madras Maintenance of Public Order Act, XXXIII of 1949, which
authorises impositions of restrictions for the wider purpose of securing public safety or the
maintenance of public order falls outside the scope of authorised restrictions under cl. (2) and is
therefore void and unconstitutional” [Majority in Romesh Thapar]
There can be no prior restraint unless the law itself actually falls within the 19(2). So all that the
petitioner needs to show that the law doesn’t fall under 19(2) grounds.

In Gopalan, that the communist was advocating against the state doesn’t fall under 19(2) grounds.
So the law should have been struck down on violation of 19(1)(a). But the Court says that 22 is a
self-contained code, and hence a law made under 22 shouldn’t be tested under Art 19. This is the
idea of watertight compartments. This idea also operates within the Art 19 rights.
This position of the watertight compartments which comes in the context of PD – there has been a
slight shift – 21 should be read with 22. 19, we still aren’t clear?? The position that NOW we don’t
read rights separately DOES NOT extend to PD. PD, the position is still pretty much the same as
Gopalan. There is thus a divergence here. This civil and political distinction here is v imp. Bhagwati
speaks about everything in Maneka, but doesn’t apply any of that to PD in AK Roy. Is PD a RR to
free speech. If we don’t examine this, how do we do this? We can do this only by saying that 19 is
only civil rights and we won't interpret 19 rights in a wide way to include political rights. So the
point is –
● We have interpreted the same rights in one way w one set of persons (Gandhi family, normal
persons)
● And v differently for other set of persons (accused, detenues under PD).

26.8.2020
19-22 right to freedom. 19 and 21 distinct or not?
What is common with all these rights
● All freedoms are distinct – they bring a particular dimension
● The COMMONALITY is that they are natural liberties of people, which are recognised by
the Consti. It imposes restrictions on state.
● Even RRs tell us that rights are an otherwise unbridled freedom of the state to make laws.
o The reason Part III starts with 13 is that we have a state which has plenary powers to
make laws, in the interest of public. But these laws need to be controlled in rights of
the people.
o In consti 2, we will see that the consti gives plenary power to legislatures on the
matters.
● So the matter is not that the state can’t make laws (unbridled power), but to what extent can
the state do so. The legislature and the judiciary have different views on this.
o 19 is an apt place to discuss the controversy around judiciary v legislature.
● In yesterday’s class, we discussed the 3 cases and said that the court wasn’t looking at when
the FoE can be claimed. They followed no prior restraint. We don’t see the kind of speech
here. The argument is that if we do look at forms of speech, there’d be chilling effect. Only
post-facto, u can prosecute under IPC or whatever. But the speech itself can’t be restrained.
o Brij Bhushan – there was a prohibition of a newspaper. Here, the court struck down
the pre-censorship. Censorship is an executive prerogative.
o Romesh Thapar – link b/w the legislation and the grounds, the restriction would be
unconstitutional. This led to a constitutional amendment.
● Is the test that if the freedom is completely taken away, or even if there a part of the freedom
being prohibited (say, tobacco ban)
o In the latter, we question whether there is right to a particular business.
● What Nehru was saying was that the govt was having problem with other 19 rights too
(property). Hence the question of how do u amend 19.
o In the original text, 19(2) didn’t have the term “reasonable”.
 ▪ It was found in other freedoms but not 19(2). It was introduced by the 1st
amend.
▪ The concept of r-bleness is not there in the text of 14 and 21. But the
evolution of these articles has read in the requirement. In Maneka, they talk
about r-bleness as the thread running through Part III.
▪ But pre-amendment, they said that FoE was being abused. The law
minister’s note said that we need a wider restriction (overthrowing the state
replaced by friendly relations w foreign state, and other wider terms).
● Sovereignty and integrity of India (16th amend) – in the context of Sikh protests and DMK’s
Dravidanadu. here, is the problem w speech or w something else:
o For example, some fellow from AP said that he supported DMK and said that the
problem was over centralisation.
o The link again here is that freedom is being used to claim larger principles (here,
federalism). Why do we have a 2nd chamber –
▪ To be able to hear voices from diff parts of the country for better
deliberation.
o So federalism can work better only if there FoE irrespective of the content of speech.
● AK Gopalan:
o What concepts of law does this case bring to us is very imp.
o Both Nehru and Patel were democrats, and believed that PD was repugnant to
democracy.
o Both said they didn’t like the Bill. Patel spoke about sleepless night and said that it
was not for any particular party but it was clear that it was meant for Communists.
o What the act authorised was a number of grounds on which u can preventively
detain
▪ Essential supplies or services
▪ Security of India
▪ Public order
o Unless it was against public order, the detenue could be told of the grounds of
detention. This was what Gopalan was challenging.
o The first question was the relationship b/w 19 and 22
▪ The court said that they operate in distinct zones. Hence, can’t read them
together.
o Now, the Romesh Thapar case was also reading the constitution strictly. That a
strict reading would result in a narrow reading of rights isn’t always true. In ROmesh
Thapar, they said public order isn’t there in 19(2), so no law can be made on that to
restrict 19(1)(a). so the strict interpretation too can give us a good result.
o But a strict interpretation of 19, 21, and 22 here in Gopalan gave us a bad result.
 ▪ The court said that they didn’t know of the grounds of detention was
violative of 22.
▪ Then they said 19 wasn’t an issue at all. The majority even said that right to
move around is only for free persons and not for PDs.
● Civil rights available to free citizens, and not political rights.
● We don’t ask the impact of the detention of political opponents.
● We didn’t see that the ideology of Gopalan was in contrast with that
of the state, and hence he needs protection. None of that.
● Just as an individual, his civil rights were examined.
● This continues even today – PD is governed by 22 itself as a self-contained code, and not 14
and 19. This is a proposition that emerges from AK Gopalan. When the consti provides for
PD, there is no way u can argue that the rights are conflict – this is what the court said.
● So the 1st understanding of 19 was not in terms of understanding the scope of the right –
they only looked at the state law.

27.8.2020
● Wrapping up Austin reading.
o This reading is giving the history of discussion around 19
o We started out with very few exceptions, and we saw this in the initial
interpretations.
o Then the parliament, which is the CA, amended the article, adding some RR (and
also amended 15 and added the9th schedule). Even the basic structure challenge isn’t
applicable to 9th structure. The amendment itself has some sanctity since it was
members of CA.
o In pg 6 of the reading, the changes are: reasonable added; and changes in the RR and
additions to the RR. Defamation, for ex, replaces libel and slander. And incitement
is added, responding to court judgements.
o Defamation and sedition are also mentioned as offences in IPC. Is this violative of
Art 19
▪ So far, SC has not accepted this position
▪ This is a question of balancing various considerations.
▪ We want free speech, but along with public order and integrity of nations.
o Then we have 16th amend
▪ Sovereignty + integrity
▪ Also freedom of association was amended
▪ Speech, assembly, association are v interconnected.
▪ So even the restrictions are common but not the same. Speech has more
RRs.
 ▪ Questions of integrity of nation are also questions of restrcitions of FRs.
▪ So the trade off b/w individual liberty and public order/integrity.
o We had Gopalan
▪ In Puttaswamy, the Court reiterated that the logic of Gopalan was
overruled.
▪ But crucial to know what in that judgement was overruled and what was not
overruled.
● Rights are compartments
o It looked at art 22.
▪ It didn’t read 19 w 22.
o Gopalan first overruled on the point of silos, by RC Cooper,
in the context of property.
o A lot of expansive interpretation happens w property
(reading in eminent domain, restrictions on state power, just
and fair compensation). Much less happens with right to
free speech, movement, association (they are only available
to free persons; detenues are not having these rights)
o This is the logic of Gopalan – 22 is a code on itself, on PD.
o This has been overruled but unclear how is what Vasanthi
said.
● Only free persons have 19 rights
o Overruled through an expansive understanding of Art 21, in
the context of punitive detention (prisoners rights under 21)
and preventive detention.
o So the blanket denial of rights is replaced by rights with some
restrictions
● The term law found in Art 21 to be understood as any legislation
made by state (or just/fair legislation).
o Can we challenge the legislation that it isn’t enough to have
a legislation but the legislation itself should be just fair and
reasonable.
o This was overruled in RC Cooper first and then Maneka.
Gopalan said anything made by state was fine.
o The 2 cases said that non arbitrariness is inherent in law.
o PD – has only grown stronger in a democracy. Even before an emergency, we had
PD. So obviously when we have an emergency, it will only increase.
▪ PD itself is colonial legacy. TADA, POTA, etc – the crux of it is that is not
punitive detention – increasing reliance on PD as punitive detention.
 ▪ In 1952, the justification was anti-social activities. Here, the thrust of the
argument was that we are bringing about land reform, we need these strong
arm techniques. Nehru justifies by saying that PD necessary for combating
anti social elements and JAGIRDARI activities. Without this power, rule of
law concepts wont apply. He says that some of us my best friends are
communists, we still need action against ruthless elements.
▪ Katju said commies are my friends. But they all were detained.
▪ During the 1st national emergency (1962 to 1967; link b/w FR and
Emergency powers (350s)), a lot of derence to the legislature. Only post
Kesavanda, push back. Here the position was that during emergency, all FRs
are suspended. But this was war.
▪ Then 2nd emergency – was factually diff – Indira Gandhi – here the question
was do we still suspend right to life.
▪ During the first emergency, there was still a distinction b/w FRs and
criminal law safeguards. Makhan singh case – the court held that we will
have to give effect to plain words of 359(1) and the presidential order. the
democratic faith, individual rights are ultimately governed by consti itself
and when the consti itself provides for suspension of FRs, they will be
suspended.
▪ So while ADM Jabalpur is criticised a lot, Makkan singh is not. The
difference is that the latter still provides for other avenues and the former
simply says that is 21 is suspended, rule of law is gone. Makkan Singh still
had some safeguards – the presidential order had to mention the legislation;
rights under legislations are still applicable, CrPC and habeas corpus still
exist. In addition, excessive delegation and bad faith too. You can thus
challenge the state power.
▪ But in 2nd emergency, political opponents were arrested. Open letter by
former CJs to the President about the use of extraordinary law against
political opinion.
▪ So, the history of PD hanging on FRs is important, especially when we look
at the political nature of Art 19 rights
● Now we look at cases
o Gopalan Cooper Puttaswamy (reference to Fazal Ali)
o First 10 years and scope later interpretation
● Cases on freedom of press
o “reasonable” – interpretation?
o Rajeev Dhawan’s article in JILI
● The evolution from Kharak Singh to Puttaswamy
 o What are the tests
▪ Contrast ROmesh Thapar w Shreya Singhal
▪ Proportioanlity in Puttaswamy
▪ Maneka – opening up of Article 19 (or not?)

RAJEEV DHAWAN READING

● Reading is v critical of the case law on press freedoms.

o Indian express, Sakal Papers, Bennett Coleman
▪V imp cases for setting up right to free press AND
▪Standards of free use
● Reasonableness test given in property (RC Cooper), reasonableness
in right to occupation and r-ble-ness in FoE
● Are they the same or is r-ble-ness itself varied from right to right
● VG Row (1950s) – r-ble-ness test
o R-ble under 14 is non arbitrariness; r-ble is not a balancing exercise there. Non
comparative r-bleness is not balancing.
o Under 19, r-bleness is inevitably balancing b/w the extent of individual liberty and
social control
▪ Are restrictions to be equated with rights?
o The initial cases focussed on restrictions and not on the scope of rights.
o We are balancing, since we are challenging the power of the state to regulate by
legislating.
o WHY ARE THE RESTRICTIONS BECOMING FUNDAMENTAL.
o Proportionality is borrowing from balancing. It is a much more sophisticated
standard of balancing. But the other tests (arbitrariness, RCT) are not balancing sets
of considerations. They establish right and see for infringement.
o WHEN WE BALANCE, WE ACCEPT LEGISLATIVE POWER. THERE IS
NO FR AGAINST LAW PER SAY, BUT THE EXTENT OF THE LAW.
o 5 COMPONENTS OF THE VG ROW TEST
▪ NATURE OF THE RIGHT
▪ PURPOSE OF THE RESTRICTION (nothing in the text which speaks to
the purpose; sovereignty is self-evident)
▪ EXTENT AND URGENCY OF EVIL
● staturoty interpretation and constitutional interpetation – same or
not?
● When we talk about extent and urgency, we are collapsing the 2.
▪ DISPROPORTIONALITY AND PREVAILING EVIL
 28.8.2020
● We need to acknowledge the fact that all members of CA are democrats. But there was a
conflict b/w the manner in which freedom was guaranteed and the manner in which they
were being used. So what does FoE mean was the difficult question.
● Even the judiciary found it difficult to take a single approach.
o The way Austin looked at it
▪ There were multiple 19 rights,
▪ They were simultaneously claimed in litigations
▪ The govt made amends in various parts of 19 and 31
▪ Subsequently, there were amends to emergency parts and 368
▪ The question of freedom doesn’t arise as a standalone question, it arises in
the context of state power to make law (for instance, in emergency)
▪ Even now the position is that, though 21 is protected during emergency, 19
rights are suspended.
▪ So we need to understand 19 in a broader context. We need to see how these
freedoms are related to BS. What are the philosophical foundations of the
consti that are relevant when we look at 19 rights; how do these freedoms
under 19 interact with legislative power; how do these freedoms interact w
other provisions (DPSPs – directly involved in right to property cases)
▪ The other way to understand these rights is the 3 strands view.
▪ The context in which 19 comes and amends come and the PD context.
● Civil rights – rights of free persons – relatable to the kind of freedom
that the person has.
● Art 19
o Citizen rights.
o But we have read 19 w 14 and 21. So the citizen is no more at the centre.
▪ Corporations also claimed 19 rights (trade, business)
▪ Right at the beginning to 1950 itself – individual owner could make a claim
that his rights as an individual were impacted.
▪ RC Cooper – 1st case that said although these are individual rights, even
shareholders can make claims.
▪ But when u are challenging some state action under Art 14 (and not 19), say
a particular entity is being taken over, the question here is classification.
These were also challenged under 14.
▪ So by the time Cooper came about, we had this question of whether
individual can claims rights under 19 for state action that impacted his
corporation.
▪ This made citizenship irrelevant.
 o The other development which reduced the importance of “citizenship” – freedom
of press was read into FoE.
▪ Dhawan does categorisation (at the end of the article). When we talked
about freedom and social control, are we talking about 2 freedoms or a
freedom and restriction?
● So the RESTRICTION MUST BE INTERPRETED
DIFFERENTLY FROM THE FREEDOM. IN THIS
CONCEPTION, RIGHT IS WIDE AND RESTRICTION IS
NARROW.
● But when one talks about restrictions in 19(2), are we talking about
group rights (hate speech for ex) or one persons right as against
another’s (defamation)
● So is it right and restrictions and right and right (negotiation of
rights b/w an individual and a group or an individual and an
individual) – do the restrictions involve group or individual rights?
● If restriction is as wide as the right, then inevitably, restrictions are
FRs of other people.
● The courts seem to have used the RRs as widely as rights – this is the
typology approach. If there is a restriction, and that is mentioned in
19(2), that’s enough. Here, the court wont examine the width of the
restriction, the nexus, the nature of the restriction. If it is contempt,
that’s done – relation b/w contempt and free speech isn’t even
examined – the reasonableness isn’t even examined here.
● R-ble-ness was NOT seen as an independent criteria, so long as the
ground was mentioned in 19(2).
● More imp question was that of NEXUS. This is followed in some
cases – say public order. VG Row, Lohia, Maneka Gandhi
quantified r-bleness and said r-bleness which invades personal
liberty and other rights is un-r-ble whether or not it is listed in 19(2).
● so these are broad 2 approaches.
● How to understand 19 rights
o Democratic rights
o Marketplace of ideas
● Bhatia
o Moral paternalistic
▪ The state becomes the protector of certain interests and only so much
freedom as we think is necessary for good of people.
▪ It is not a right irrespective of its good and moral worth.
 ▪ Restrictions – spark in the powder keg
● Restriction has this effect on right.
● Speech for ex, has a certain effect. We need to demonstrate this
effect.
▪ The larger question is should a person’s free speech be determined by other’s
reaction to it – Hecker’s veto.
▪ Irrespective of the content of the speech, the fact that there will be sections
of the society which wont like my speech – is this enough to restrict my
speech
▪ Same is the case w NEXUS – if there is an effect and the govt has r-ble belief
that this was cause a riot – that is enough to restrict my speech.
▪ So is the r-bleness test better than the nexus test??
▪ Those who argue that hate speech should also be protected under 19 say that
if it is not, then unpopular speech will be censored and this will create a
chilling effect.
▪ But those want to not protect hate speech under 19 say that read 19 with 14
and speech which affects equality should be restricted.
▪ So does 19 benefit from 14 and 21.
● Typology question
o Where does r-bleness figure
▪Reasonable as a standalone test 0R
▪First, establish right, then establish that RR is linked to test, and then look
at restriction.
● Another opinion – minority opinion in Benett Coleman
o The democratic question it raises
▪ Popular gov has right to make laws which it believes is good for the public.
Should we allow an individual to say that this isn’t for my good so I shoud
challenge it (v similar to property)
o Bhatia says that morality in restrictions should be constitutional morality. But
Arudra Burra in his review says, we can instead look at DPSPs. There is an obligation
on govt to carry its affairs in a manner which will justify and uphold DPSPs. This
was invoked in property cases.
o You look at the legislation and you see the primary object of the legislation
(distribution of newsprint, for ex). So this is not directly about free speech – this is
the general regulatory theory of the state. (pg 314/17).
o Mathew’s dissent – in the context of non-monopolising press (it is true that press
was controlled by a few corporate groups), if the govt believes that there should be
regulation of corporations (whether in terms of newsprint or minimum wages, as in
 the Union Express cases), the PRIMARY OBJECT IS NOT TO CONTROL
SPEECH. Is it to regulate newsprtint.
o The doctrine of pith and substance says, legislations should be upheld if in pith and
substance if they deal w a legitimate objective. The prevention of concentration of
wealth is a legitimate objective, per DPSP. Now incidentally/peripherally, they
might affect speech. But this is valid legislation.
o This is where Mathew says that legislation is fine and looks at American precedents
to say that effect on free speech is peripheral and that’s fine. So employment
legislation, tax regulations are fine, especially for corporations.
● So till now 3 approaches
o REASONABLENESS – STAND ALONE – TEST ONLY REASONABLENESS
OF THE LAW WHICH RESTRICTS SPEECH, NOTHING ELSE.
o TYPOLOGY APPROACH – THOSE 3 STEPS.
o GENERAL REGULATORY APPROACH.
▪ If it is in the general regulatory power of the state and there is only ancillary
effect, legislation is valid.
● Free press, while not mentioned in constitution (why not: are 19 rights individual rights or
group rights – if individual rights, then group rights don’t supersede them. Ambedkar
thought that free press doesn’t need to be expressly mentioned, since it was a part of
individual rights. So it was read in. we cant read every right into 19. FREE PRESS is
NOT a concomitant right, it is an IMPLCIT RIGHT.).
● But the freedom of press, is in fact not an individual right. There is a particular role of the
press, as an INSTITUTION, distinct from that of an editor, etc.
● So when we talk about freedom of press, it is a distinct right from the FoS of an ondivudal.
The problem of this equation of individual w the collective becomes even more problematic
in the context of association and movement rights.
o Trade unions don’t have FRs as per SC cases, this flies in the face of the text of 19,
which allows for unions. So the right to form unions is not an individual right. It is
necessarily a group right. And trade unions have distinct role to play as against
individuals.
● So not being able to make this distinction (in the context of press, corporations and unions)
has been a big problem in the way in which 19 has been worded nd interpreted to include
group rights but the logic has been that group rights are not higher to individual rights.
● Dhawan argues that press right is a v narrow right and the court has not understood the role
of the institution of press in a proper way which needs to be protected, hence the very narrow
right.
o 19 rights have been formulated as individual rights.
 o Groups enjoy these rights to the extent that individuals are affected. So ,
corporations – standard is that if individual right is violated, then group right is also
violated.
31.8.2020
● Missed the first few minutes, check recording.
● There is no distinction b/w freedom of press and citizen. But we want to argue that freedom
of press stands on a different footing.
o The argument in Anuradha Bhasin is that when there is a blanket shut down, there
is no enabling environment for the media to practice its profession.
o Some group rights, freedom of press included, should be protected independently –
it informs individuals.
o The relationship is inverted here, §144 doesn’t allow media to perform its role.
o Are press rights under 19(1)(a) coming before citizen rights
▪ BOTH NEED TO BE EQUALLY PROTECTED.
▪ But what happens in the absence of free press is more dangerous than the
absence of individual freedom.
● Dissemination of info becomes v skewed, only the govt will have
total control.
o That Anuradha Bhasin is another reminder that notwithstanding changing judicial
levels
▪ Initially we said r-bleness is just balancing
▪ Now we say it is much more – it is proportionality. But it fails to overrule
the orders, though they weren’t produced before the court. So what is the
point of overruling Gopalan?
● There is a diff b/w legislative and executive power. The latter can be
easily changed.
▪ The court said that the petitioners did have a right to ask for orders. But it
didn’t enforce this right against the govt.
▪ While the standard of proportionality is upheld, it doesn’t provide for
greater restriction on state power.
● The right to internet is an integral part of 19(1)(a), but in spite of
that in the interest of security of state you can have an exception and
the court is not able to examine the reasonableness of the exception.
● So we are back to Gopalan and Romesh Thapar
o There is a ground mentioned in 19(2), so we ask the state to
set up a body to reconsider its orders.
● How does one look at whether there is a durable govt framework in the midst of social
revolution:
 o Currently, we see that the court isn’t doing its bit, so why are we going to the
constitution anyway.
o Even though this is an unprecedented situation, it is better to not see it as that and
see it as a constant struggle for better constitutional governance.
o YES IT DOES BUT THE INTERPRETATION OF THIS RIGHT HAS
NOT BEEN THE BEST POSSIBLE.
● When we look at constitutional personhood, we are looking at constitutionalism beyond
courts.
● The Dhawan paper isn’t concerned with (…). But what he is concerned with is –nature of
constitutional rights. This is the root of freedoms under 19.
o If we are concerned with nature of the rights (as he is, with press freedom),
o Even optimistic reading of CA cant disguise that this chapter is riddled with
compromises.
o Austin showed us the ambivalence of 19(1)(a).
▪ Dimensions of hate speech.
▪ Immediately after the rights came, the right in which they were claimed
made us think that there should be restrictions.
▪ So the ambivalence was always present, even during drafting.
o How we see court’s approval is legitimising use of power.
o We are trying to balance out various aspects of rights. How the state and the court
would want to engage with the rights have implications on politics.
o BUT THE QUESTION OF NATURE OF RIGHTS IS MORE IMP THAN
POLITICS AND POWER.
o The press has constantly been seen as something that creates disorder, right from the
first few years of the consti. In 1951, the PM said that it is owned by a few companies
so how is it really freedom of press. In Benett Coleman, the court said that it wanted
to break monopoly and redistribute newsprint and the minority found this
legitimate – even in press, we need to look at questions of power and dominance.
o Press does not have special rights.
● Test – for scope of restriction.
o Express News papers case 1958
▪ UNLESS there are direct and inevitable consequnces of the impugned act,
do not strike it down
▪ Justifies the restriction.
▪ This is a reformulation of the remoteness test – if the harm is remote, it is
possible but not directly possible, so it is not right to strike it down
o Sakal Newspapers
▪ Object of the Act was to regulate competition
 The act infringed rights since
▪
“What is substance is the loss or injury caused to the citizen”
▪
● Here we are looking at effect, not in the Express Newspapers way.
(irrespective of whether it is direct)
o RC Cooper
▪ Not the object but the effect of the law.
▪ We are not using the term direct and inevitable, but we are looking at the
effect.
o Bennett Coleman
▪ Majority – enquire what in substance is the loss to the citizen
▪ Here, we only require direct impact
▪ Dissent – general power of regulation is a valid objective and indrirect effect
of it is fine, it does not make the law unconstitutional.
● This was the majority in Express News Paper. This became the
minority in BC.
● 2 mechanisms
o One is to locate gov order within restrcitions
o Other is to see reasonableness
▪ Here, we see 19 in terms of 14 and 21, not standalone
▪ We have a standard of r-ble-ness which applies across the board – 14, 15, 21.
▪ Tarunabh Khaitan (beyond reasonableness) argues for rigorous standard for
particular rights, and the need to distinguish to other freedoms from
19(1)(a). so he says more rigorous needed for 19(1)(a). the traditional
standard for (1)(a) has just been balancing, and he says this is fine for other
rights but not for 19(1)(a).
▪ This means that 19(1)(a) stands on a different and higher footing than other
19 rights. This is confirmed by the narrowly tailored restrictions in 19(2), as
compared to the restrictions to other rights.

1.9.2020
● Recap – Shreya Singhal builds up on what we already have discussed.
● Shreya Singhal is imp since it reads rights together.
o In 14, we started with a narrower view and then read 14, 19 and 21 together.
o The tests in this case resemble the due process tests which ideally are on 21, and the
court relies on 21 case law
o But as a judgement in 2015, it also makes a test for distinct interpretation of 19 from
14 and 21.
o It also gets into the content of the right much more contemporarily.
● How does it build on earlier judgements
o It talks about Romesh Thapar
o Any restriction on speech must satisfy 19(2)
o The meaning of reasonableness is extended from the earlier understanding.
● The first question is 66A –
o Not related to any of the 8 subjects in 19(2). Direct 19, no 14, 19, 21.
▪ ¶5 – all the subjects there are outside 19(2).
o Vagueness – from where are we sourcing vagueness? Is vagueness a lack of
reasonablenesss?
▪ Nariman says that 14 isnt attracted here.
▪ But says this is arbitrary and whimsical.
▪ It is clear that vagueness was coming from arbitrariness
o Chilling effect – again from where?
▪ Direct and inevitable consequence? Or the effects doctrine? Mostly effects
doctrine
▪ The petitioners contended 14, 19, 21 separately.
● State says that possibility of abuse isn’t enough to declare a legislation unconstitutional. State
admits that tersm are vague but that isn’t a ground.
● The cases referred to – court refers to both set of cases of democracy and MoI
o Romesh Thapar
o Sakal Papers
o Khushboo case – comment made which outrages modesty??
▪ The court here held that we need to tolerate unpopular views. The
judgement refers to marketplace of ideas.
o Bennett Coleman
● “even advocacy of violence however morally reprehensible, when not inciting is permissible
speech”
o So only incitement is censurable
o Not discussion, not advocacy
o Relevant for sedition, hurting people’s sentiments, obscenity, morality.
● We need to distinguish b/w these 3 - discussion, advocacy, incitement. This is an expanded
understanding of free speech. The court refers to Shayala bala – the pamphlet one and says
that that there is mere advocacy
● When we get to incitement – proximity becomes important.
● ¶16 – American case law – compelling necessity – should this be used in indian context
where we have a list
● THE LARGER POINT IS THAT EVEN IN MoI, NOT ALL SPEECH IS
PROTECTED. -- ¶16 – certain speech is still not protected.
 o THERE ARE WELL DEFINED (NARROWLY TAILORED) GROUNDS
TO RESTRICT SPEECH AND THIS IS CONSTITUTIOANLLY FINE
▪ Obscene, lewd, libellous, hate speech, incitement.
▪ “such slight social value” – not democratic but social value.
▪ The SCOTUS has come up w these, in the absence of a list.
o So even here, 19(1)(a) question doesn’t arise if the speech is any of the above.
▪ For ex, in obscenity cases – court first looks at “obscenity” then
“reasonableness” of restrictions.
● ¶17 – going back to the original interpretation -- 8 grounds in 19(2). This case proves the
effectiveness of reading articles independently. The general proposition of Gopalan of
reading rights separately is overruled, this case reads 19(1)(a) distinctly and separately from
the other 19 rights.
● 2 tests
o Relatable to the object in 19(2)
o Reasonableness – proximate relationship – court gets into the history of SC’s
reasonableness, right from Chintaman Rao (¶23)
▪ This dual test combines both of Dhawan’s typology
● But the development of “reasonableness” doesn’t happen only in 19(1)(a) context.
Chintaman Rao is 19(1)(g). then we have VG Row which has elements of proportionality.
There are elements of statutory interpretation (mischief rule, purposive interpretation).
Then we have Cricket Assn of Bengal – expanded understanding of reasonableness.
● Now, reasonableness under public order
o Lohia – concentric circles – law and order is the largest circle and isn’t part of 19(2).
Public order and security of state still need to be distinguished.
● Tendency approach – in obscenity cases
o S Rangarajan
▪ ¶45 – compromise; pressing, proximate, intrinsically dangerous, spark in a
powder keg.
o Shailabala Devi
▪ Diff test – tendency to excite persons to act violently.
● Vagueness – void for vagueness doctrine – due process doctrine – after Maneka, due process
is a part of ind con law
o Whether this is an independent ground
o Only reason or arbitrariness
▪ But the court here says that no we are not using due process. The case refers
to MP v Baldeo Prasad (which is a 19(1)(d) case). There is “public interest”
here.
 ▪ Should u use vagueness when the source of the doctrine is not in 19(1)(a),
but in (d) and (e) and they’re diff cause they have wider grounds but (a) has
narrower grounds. So controversial to use vagueness in (1)(a). ¶65
● Invalidity arises from capacity for misuse, and not due process.
● Court is still not answering this question of capacity of misuse, but
says that the provision is unconstitutional, so we don’t need to get
into misuse.
o SO
▪ IF CONSTITUTIONAL – CAPACITY TO ENFORCE IT
UNCONSTITUTIONALLY DOESN’T MAKE IT
UNCONSTITUTIONAL
▪ IF UNCONSTITUTIONAL, EVEN IF IT CAN BE APPLIED
CONSTITUTIONALLY, IT IS STILL UNCONSTITUTIONAL
o SO UNCONSTITUTIONALITY IS INDEPENDENT
● Reading 19 with 21
o AK Roy – due process -- ¶67
o But there is also 14 cause arbitrariness unless we say that 14 and 19 have different
arbitrariness.
o So now we can say that arbitrariness extends across the board.
● The grounds aren’t defined in the legislation – this should have been enough to strike it
down on vagueness, but the court only incidentally refers to this.
● ¶82 – ultimately uses the Chintaman Rao and VG Rao – to strike 66A down on
arbitrariness
o So this is a link to 19 and 14 and 19 and due process under 21 though the court
rejects it.
● The court in Shreya Singhal says that there is classification. But they use arbitrariness. But
the court doesn’t strike it down under 14 but does so under 19.
● The correct approach would be to say
o Is there a right (to publish this book; make this movie)
o Then look at the restriction.
▪ Certain grounds make us choose b/w MoI and democracy – say hate speech.
● Unpopular speech deserves protection since it has democratic value.
Even speech affecting security of state – so long as they are not
incitement, there is always inherent democratic value.
● Austin says that freedoms don’t appear independent of these values
(of national unity, etc). SO when speech furthers these values, courts
protect it and when speech doesn’t, the speech is not protected itself
(and hence no 19(1)(a) claim at all).
 ▪ Also all grounds are to be understood separately, don’t club them –
understand the effect of each of these separately.

2.9.2020
● Right to privacy in Art 19 and 21.
● Certain rights which aren’t mentioned in the constitutional text- should we locate them in a
certain enumerated article or should we not need to do that at all, i.e. is that not important
now at all?
● This becomes important for standards of review.
o The standard of review isn’t all that relevant since we do use the same standard for
all rights, in one argument. Especially with the coming of proportioanlty.
o But it IMP to not put everything in the basket of proportionality.
o We still need to understand the nature and content of certain rights.
● We keep coming across this idea that some rights are more imp.
o 14, 19, 21 for example – these are the very core. Even in emergency, we have elements
of these rights. They also can’t be put aside through an amendment.
o So we need to understand them DISTINCTLY.
● Chanrdchud’s opinion in puttaswamy
o To trace the genealogy of right to privacy
o What contexts are we applying privacy to
● We of course start at Maneka
o It is moving away from Gopalan, along with Cooper.
o But Gopalan isn’t overruled on all counts.
● Privacy emerges from 20 and 21 rather than from 19.
o Gopalan never invoked 19 in his argument in the privacy sense.
o So why is Gopalan important at all
▪ Gopalan gave us the sense that 19 rights were distinct rights and subjects
them to certain restrictions.
▪ 21 then is a RESIDUE. 21 in this sense is lesser imp than 19 rights.
▪ Each of the 19 rights take care of the very important freedoms.
▪ What remains of personal liberty that is not there in 19?
● Till Maneka it was criminal trial only.
● From Maneka, we start talking about reasonableness in all kinds of
liberty. but till then, we thought 19 was civil liberty and 21 was in
the context of those who were accused of crimes, since it structurally
after 20.
● But by linking 14 19 and 21, we get a new sense of preventive
detention in 21 too and privacy too.
● The origins of privacy comes from personal liberty in the context of criminal trial and 20
and 21.
o Kharak Singh
▪ Not on PD.
▪ A person who was accused of a crime, later released on lack of evidence. But
the police kept surveillance of him.
o MP Sharma
▪ Search and seizure and self-incrimination under Art 20.
▪ In the context of self-incrimination and search and seizure, privacy comes
up.
● Post Puttaswamy, we are looking at privacy in a very expanded way.
o The doctrine as expounded in Puttaswamy itself doesn’t lead us to certain results.
But it guides us. The doctrine needs to be incrementally improved and modified
with time.
● Puttaswamy
o Chandrachud ultimately says that we cant think of other FRs w/o privacy, and links
it to dignity. Though the text doesn’t directly talk about dignity it is a part of
personal liberty.
o It was always an implicit right, just like right to free press was read into 19(1)(a).
o That it is implicit and not explicit doesn’t matter, it is of equal weightage. This comes
from the understanding that the text of the constitution isn’t always explicit.
▪ For instance, the term federalism doesn’t figure anywhere in the text of the
constitution.
▪ Secularism too, same thing.
o Thus, constitutional text is both implicit and explicit and both are equaly implicit.
o This is imp when the implicit and the explicit conflict and we need to argue that the
implicit one trumps the explicit one.
▪ Thus there could be implicit rights (say dignity, as per Vasanthi) which are
of greater significance than explicit rights (say formal equality)
● Was the right to privacy ever set out as a right
o Kharak Singh does it by sleight of hand rather than explicitly.
o Regulations and not law (Subba Rao focuses on this and says that to restrict on an
FR, u need law), on 19 rights through records, surveillance, domiciliary visits.
o The court holds that 19(1)(d) is not impinged by surveillance of the police through
domiciliary visits, since it doesn’t impinge of his freedom.
o Kharak Singh is still dominated by Gopalan logic. FRs are distinct freedoms and not
overlapping freedoms. Nariman also just looks at only 19(1)(a) in Shreya Singhal.
o Now reasonableness intrudes Art 22 too, and this is where Gopalan is obsolete, in
that where they said that 22 is a self-contained code and 21 doesn’t even come into
the picture.
o While there are cases where it is absolutely important to read rights together
(Johar, sexual orientation comes from multiple rights) but this is not the case
with all rights. So we need to distinguish between cases which require us to
read rights together from those that don’t.
o What is absolutely wrong is to read the right as a self-contained code to read
down rights. So don’t read rights as silos to reduce the scope of the rights. If
u read them as silos and read them comprehensively and well and fully, that
is still fine.
o Chandrachud says that there is an internal inconsistency in Kharak Singh. It was
relying on ideas of dignity and security and cites Wolf v Colorado and then goes on
to say that in the indian context, it is not a right.
o Chandrachud says that they were willing to locate privacy in 21 alone and invalidate
domicilary visits on infringement of 21 rather than on a link between 19(1)(a) and
19(1)(d) and (e) and all that.
o Now the dissent of Subba Rao very clearly says that FRs overlap. Contrast this with
the CARVING OUT that Gopalan does, where they say that personali liberty is
carved out in 19 and what is in 21 is different.
o Now what Subba Rao says that the rights are INDEPEDNENT, yet overlapping.
▪ “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 our
view, this is not a correct approach. Both are independent fundamental
rights, though there is overlapping. There is no question of one being carved
out of another. The fundamental right of life and personal liberty have many
attributes and some of them are found in Article 19. If a person's
fundamental right under Article 21 is infringed, the State can rely upon a
law to sustain the action; but that cannot be a complete answer unless the
said law satisfies the test laid down in Article 19(2) so far as the attributes
covered by Article 19(1) are concerned. In other words, the State must
satisfy that both the fundamental rights are not infringed by showing that
there is a law and that it does amount to a reasonable restriction within the
meaning of Article 19(2) of the Constitution. But in this case no such
defence is available, as admittedly there is no such law. So the petitioner can
 legitimately plead that his fundamental rights both under Article 19(1)(d)
and Article 21 are infringed by the State.”
o So this double test is the expansive reading, which runs against the logic of Gopalan.
o When we reduce 14, 19 and 21 is reduced to one test, that is not as good as testing
the law against every facet of 14, 19, and 21 individually, rather than collapsing
everything into one test. This is what Subba Rao’s dissent is saying. The law must be
justified on all the grounds on all rights.
o This is how Puttaswamy is to be understood.
● When we say overlapping, we don’t collapse them.
● As a first principle, we don’t read rights as conflicting. – DEFAULT.
o Answer a right on one right or another or both, rather as on conflict of rights.
o But there are conflicts (14 and 15 v. 25 in Sabarimala).
o SO FIRST, ALWAYS AVOID CONFLICT.
▪ This is what the theory of overlapping rights also does.
▪ By moving away from CARVING OUT in 21 19 rights and thus 21 is
residual, THIS IS CERTAINLY OVERRULED.
● Conclusions of Puttaswamy
o Privacy comes from 21. Rights are overlapping, and elements of privacy arise in all
rights, but primarily, it comes from 21. THIS IS ABETTER AND SHARPER
DOCTRINAL POSITION, PER VASANTHI.

3.9.2020
● Shreya Singhal does a good understanding of right and restrictions
o You start with the right
o Set out the scope of the right
o Then look at the restrictions
▪ This is what Shreya Singhal does. Also explicitly refers to MoIs.
▪ It goes back to the typology approach. It relates the legislation to the grounds
mentioned in 19(2) and if not matched, the restriction is unreasonable.
▪ The reasonableness here is not much stressed as a substantive ground.
▪ The court also in addition says that the legislation is vague and hence
unreasonable.
● How to understand Shreya Singhal, Puttaswamy and Subramanyam Swamy
o How to read rights together to expand them, and not read them down.
● Subrahmaniam Swamy
o Continuation from Shreya Singhal, 3 years later.
o 499 and 500 IPC are under challenge.
o 19(2) mentions defamation.
o What makes defamation different from other 19(2) grounds:
▪ Rest of them are for general public
▪ 19 rights are themselves to be seen as balancing exercising against societal
needs
▪ Defamation however has no social interest in the reputation of a single
individual
▪ So it shouldn’t be a part of 19(2)
▪ Even if it is, it shouldn’t include criminal defamation and should have only
civil defamation
o So the question here is whether defamation should be a part of 19(2) itself, and
should 499 and 500 be on the IPC.
o Defamation is just speech; nothing else but speech.
▪ Minority in Bennett Coleman says that if incidentally speech is regulated,
that’s fine.
▪ But in defamation, we can’t incidentally affect speech because it is
DIRECT.
o Other grounds are speech + something else (which is a public interest)
o So how does defamation even fit in with 19(2)?
o So we want to say that defamation per say is not a ground to restrict speech; we want
to say that it is defamation + something else. Thus, defamation doesn’t by itself make
any sense in 19(2) due to lack of societal interest.
o Petitioners argued all tests
▪ Chilling effect
▪ Direct effect (Bennett Coleman)
▪ Proportionality (what is the purpose and the effect of legislation; even if we
accept that there is some interest in protecting individual reputation,
criminal sanctions are not LRM to do it)
▪ Petitioners wanted to read it down to only civil defamation
▪ FRs, especially citizen-rights, have always been articulated as vertical rights,
against the state.
● Defamation however it against another individual.
● This is thus a horizontal restriction
▪ Especially when there are civil remedies, why have criminal prosecution.
o Right to reputation
▪ Where does this even come from is the main question
▪ Court says dignity, which is a part of 21
▪ This again raises the question of whether 21 is available against state only or
individuals too.
 o Now the state-argument is that defamation was a part of original text.
▪ This again takes us to the question of original intent and till which part do
we have to be bound by that?
● We did this with citizenship, with Art 11
▪ Are the restrictions a part of BS?
● Vasanthi ofc says no.
● The intent of the framers shouldn’t lock us with an interpretation
which is not suited to our times.
o The state also argues that all of defamation is a part of 19(2)
▪ How does the right to reputation come to be part of 19(2)
▪ State say that it is indirect horizontality – state has a DUTY to protect rights.
▪ Right to reputation is linked to dignity which is 21; state has a duty to
protect 21; hence 499 and 500 of the IPC.
▪ The court accepts this argument and says that the state has a fundamental
duty to protect the right of reputation
▪ In doing so the court collapses the difference b/w reputation and dignity
o So the 19 restrictions are being read with 21 rights.
▪ So far we read 19 rights such as 1(a) or (d) with 21 rights
▪ Now the state is arguing that the restriction in 19 is a right in 21.
o The state goes further to say that only some speech is protected and that speech is in
499, IPC as per the state
▪ Curiously the state says that all the speech which isn’t criminalised is not
protected.
▪ So we don’t even need 19(1)(a).
▪ We have an IPC and whatever is protected is there; and 19(1)(a) is just
residue.
o The court (not just the state) also looks at restrictions in the preamble
▪ Fraternity – dignity of the individual
▪ Now this then justifies the restriction in 19(2) which is to be read along with
the preamble.
▪ Elin Daly argues that dignity is for all; reputation is only for some.
▪ However, this decision says that reputation is an older understanding of
dignity and explicitly make that link.
o So this restriction on a free speech right furthers dignity
o The state also argues that words in the constitution (original text ofc) shouldn’t be
read down, and the words in the constitution shouldn’t be read narrowly
▪ Ofc this is what the state is arguing for a restriction and not a right
● So how does Shreya Singhal not bind this court
 o The court refers to Shreya Singhal and says that the case looks at the restrictions and
matches them
o We are doing that only, defamation is mentioned in 19(2), so it is not an
unreasonable restriction
o We are thus following the logic of Shreya Singhal.
● So fundamentally we shouldn’t read 19 and 21 as conflicting. This case does just that and
privileges the latter.
4.9.2020

● PUCL v. UoI (1997): (Telephone tapping case)

o Challenge to §5(2) of the Telegraph Act which authorises central and state govts to
tap messages and phones
o Grounds: public emergency, public safety, etc. Language of 19(2) basically.
o Should the matching of grounds in the statute with the 19(2) grounds be enough?
o No rules were framed under the statute to enforce §5(2), so no guidance.
▪ The court in Shreya Singhal very clearly said that an unconstitutional law
can’t be made constitutional through enforcement.
o So here, the challenge was that there is no procedure in the enforcement of §5(2).
o The petitioners argued that the section needs to be read down to make it
constitutional.
● Obscenity
o Tamil Selvam
o Rangarajan v. Jagjivan Ram
▪ Spark in the powder keg test
o Aveek Sarkar
▪ Community tolerance test
● What did we do with 19(1)(a) in this course
o Saw how press rights are implied rights within 19(1)(a). the court has not examined
group rights separately but mixed it with individual rights
o Saw that it is not necessarily a citizen right cause corporations can claim it
o Regulatory theory
▪ General theory of regulation – state has the power of regulate and so long as
the primary focus on regulation isn’t speech, it’s fine.
o How to test reasonableness
▪ Sometimes see the grounds in 19(2) and match them
▪ Sometimes proportionality (looks at necessity, LRM, etc)
● We then looked at privacy –
o Now located much more strongly in 21, than 19, but it has elements in 19 too.
● Comment on the Maneka Gandhi case
 o As a general proposition, we can’t read 14, 19, 21 together since that doesn’t allow
the right to be fully fleshed.
o There is a difference b/w reading rights together and integration of rights
▪ Integration – disregards the individuality of rights
▪ If u wanted substantive review in 21, you could have done it by requiring
reasonableness in Art 21 itself w/o linking it to 14 and 19.
o Arbitrariness under 14 isn’t the same as arbitrariness under 19.
▪ Under 14, it is quite a loose standard. You just need to give a reason.
▪ Under 19, you need to relate it to the grounds and then it is proportionate
wrt to that ground. For instance, the Wednesbury standard of 14 (if it were
a 14 standard) can’t be seen as a part of 19.
o Thus this integration approach has led to reading down of 19 rights itself. And this
is evident from Maneka itself, when they say that we won’t read in concomitant
rights into 19 (i.e. those rights which are required to enjoy the main 19 rights).
● Vasanthi says that it is better to restrict hate speech not by invoking 14 but by rather saying
that speech of that kind, i.e. hate speech is not protected by 19 at all. So there is no right itself
to be restricted.

27.08.2020

Gopalan case: has been overruled. First decision to overrule this case was done in matter of property,
and not with respect to punitive detention. What Gopalan said (all these were overrules):
● Rights can be read as watertight compartments.
● Rights are only available to free persons. [Overruled-even prisoners have some rights]
● Is the term law is to be understood as any legislation made by the state or does it refer to a
just and fair legislation? Court says that law is only lex (statute), and not a just law.
[Overruled - Maneka Gandhi (?)]

Makhan Singh case:

● When the constitution provides for the suspension of fundamental rights, the SC cannot
ignore that. Unless the provision specifically mentions the rights that can be suspended, they
cannot be suspended.
● This case is linked with the ADM Jabalpur case.

01.09.2020
Shreya Singhal v. UOI
Interpretation of Art 19; 19(1)(A) [Freedom of Speech & expression] stands on a different footing
than other freedoms. Narrowly tailored restriction.
Brings in the question of reading rights together - parallel w article 14. Effect of reading 14,19,21
together. Tests used in this case resemble test for due process - 21. Invokes cases that are directly on
21. Court making argument for reading 19(1)(A) in isolation. Case gets into content of the right.
Right to the internet as part of 19(1)(a). Court extends the question of how these rights can be
manifested into other platforms - such as social media.

Reference to Ramesh Thakur. Talks about restrictions on 19(2).

Question of meaning of ‘reasonableness’ → extended to earlier
understanding. Expanded understanding of 19(1)

Is vagueness arbitrary? - argument of vagueness coming from argument of arbitrariness

2nd ground - chilling effect -

In Khushboo case - comment made outrages modesty - importance of free speech necessary not
absolute as we need to tolerate unpopular views
Judgement refers to ‘marketplace of ideas’. Advocacy falls short of
‘inciting’ → in context of sedition, dissent [majority].

Advocacy of a particular position - is not smth that can be punished. Incitement of offence - tests of
proximity, remoteness also become important. market place of ideas - distinction between indian
and other jurisprudence;

Allowing broadest scope to 14th amendment - obscenity [19(2)] clause; [“….those which by their
very utterance….”]
Marketplace of ideas - certain speech that do not warrant protection

Should we set out scope of the right or the scope of the restriction?
1st stage - obscenity; 2nd- reasonableness
No order; we’re delving into the question of free speech here; no nature of the speech as much as
right to make the speech.
Difference between us & indian constitution
Reading article independently - gopalan
Dont read with 19(1)(a) bc it deserves protection independently -- difference between us & indian
jurisprudence
Reasonableness - interest of public, intelligent care, deliberation, reason of court, invade the right -
[Chintaman Rao v. State of Madhya Pradesh]

Rangarajan case -
Tendency standard - tendency to incite violence through freedom of speech

Baldeo Prasad -

2nd ground - can it be struck down on the ground of Vagueness?

Vagueness is an independent ground? Is an intrinsic part of due process? Baldeo Prasad - inclusive
definition of the word ‘goonda’. 19(1)(d) and (e) of the constitution. Both have a wider scope of
freedom for the state to impose restriction. While vagueness initially wasn’t a part of the doctrine --
the court said this isn’t an application of the doctrine of due process. The invalidity arises from the
probability of the misuse of the law to the detriment of the individual. If provision is unreasonable
or unconstitutional - we don't need to get into the question of implementation. Evaluation of
provision and its constitutionality should not depend on its reasonableness and whether or not it’s
capable of misuse. Fairness and justness of provisions - article 21. Reading 19 w 21 - vagueness as part
of due process. The term arbitrariness has different meanings, extends across 20, 21 into this idea of
‘vague’.

66A arbitrarily, excessively, and disproportionately invades the right of free speech and upsets the
balance between such right and the reasonable restrictions that may be imposed on such right. You
can't isolate 19 from either due process under 21 or arbitrary understanding of 19.

Puttuswamy emanates from 19 jurisdiction where court doesn’t read privacy as part of 19 but 21
but then it’s a right in Khadak singh.
Anti terror legislation - related to security of state
Vagueness test - arbitrariness used

02.09.2020

Personal liberties were examined in a different light, things that were related to criminal law.
Reasonableness - Maneka. 19 contends civil liberty. Origins of Personal Liberty. Gopalan -
Preventive Detention. Khadak Singh - comes in the context of person accused released for lack of
evidence, police believed he must be kept under surveillance.

Gopalan - Khadak Singh - MP Sharma [Search & Seizure - A.20 - Right against self-incrimination]
Argument on free speech; can’t stay only w 21
Aadhar judgement - proportionality; context of aadhar wasn’t so much of personal liberty as was
access of certain rights from the state

Each context requires adaptation of doctrine

Locate right to privacy among these cases

Puttuswamy
RTP bcomes important because some cases have decided it to be a part of FR but in cases like
Khadak Singh court recognises that it is not a constitutional right.
Privacy has become an accepted fact before it is formally recognised. Understanding of privacy is
core to the question of fundamental rights. Dignity is an aspect of personal liberty. Privacy hence
becomes an integral part of personal liberty. It has always been an implicit right. [much like freedom
of press] their being implicit doesn’t make them lesser right. Many tenets of constitutional law are
there that are not explicitly set out anywhere. The term ‘federalism’ doesn’t find a place in the
constitution when the entire thing talks about the federal structure. Constitutional Text is not only
explicit but also implicit. Implicit right must give weight to the explicit right. 19 rights coming in
conflict with 21 right. Implicit right that are of greater significance (dignity) than explicit ones
(formal equality). Whether the right to privacy was ever set out by courts as a right.

MP Sharma - Deals w 20 rather than 19; reading 19(d) distinctly; question in khadak singh
dominated by gopalan

Shreya Singhal - looking at rights in isolation is not obsolete

Johar - cases where it is imperative to read various rights together; not possible to understand
freedom belonging to a particular right in the constitution; not all cases involve such an
understanding. Wrong to say that i want to decide where I want to locate this right. Reductionist
way of reading FRs becomes problematic.

Conclusions in Puttaswamy: Internal Consistency in Khadak Singh - it needs to be overruled when

it says right to privacy doesn’t need to be protected

03.09.2020
Understand restrictions in terms of relatability to the offence - unreasonable restriction.
Dhawan - typology of restrictions
Court uses both approaches to test the reasonability of a particular restriction under article 19(2).
Continue

Subramaniam Swamy v. UOI [2016]

Petition challenging validity S.499 of the IPC; Understand kind of debates possible wrt these
restrictions. Defamation is different= from other restrictions under 19(2); contempt and incitement;
we can’t read in sedition under 19(2); provisions on defamation need to be understood as
unconstitutional, why? How is the defamation battle different from sedition battle? Societal
interests at large. Defamation doesn’t constitute societal interests; can’t be a part of 19 at all. Even if
it is, it must be restricted to civil defamation, shouldn’t include criminal defamation. Need for
balancing. 499 constitute narrowly tailored. Reasonable enough if we only use the reasonable test.
That’s not an argument; whether or not having such a restriction is reasonable in itself. The fact that
you can be threatened with criminal liability for free speech is problematic in itself. Consequences
for particular forms of speech. Defamation - any offence independently from the speech. No other
angle to defamation other than the speech itself, general theory of regulation - focus is not on speech.
One must not see it as a valid regulation. With defamation, no pretense of public benefit - it is directly
on speech. Existence of criminal sanction on speech - by itself constitutes an unreasonable
restriction. Speech which leads to some kind of incitement, how does defamation even fit in with
other forms of restrictions? Challenge - whether existence of criminal provision for defamation
cosnitute unreasonable restriction. Defamation in relation with other ground, which leads to any
kind of harm, public disorder, immorality - not as a ground in itself because that doesn’t fit well with
the constitutional framework. Speaking of truth has to be of value in a democratic society, any
restriction on that must be seen as unreasonable. Provision - must be of public good. What is public
good? Go through the prosecution before court decides whether or not smth was in public good.
Direct effect test [Chilling effect due to restriction of free speech - Shreya Singhal - effect of muzzling
speech by provisions - direct impact on test]
Adverse Effect test - effect of protecting public reputation, cost is too high, restriction isn’t valid

Petitions argue - Court must read down defamation to include only civil wrongs, since it is part of a
common law. FRs are of the group called citizens against the state. State makes a restriction
otherwise rights are there. Defamation is a right against an individual. Not all restrictions are
unreasonable, but why should we curtail freedom of speech against an individual not against the
state? [Continuing horizontal application when the same isn’t there]

1) Intent
Right to Reputation - explicit right under 19(1)(a) speech and expression, implicit right
under 21 [ life &liberty], where are you going to locate right to reputation? Court says it
should be in 21. Is 21 available against state or individuals as well? State argues defamation
 were part of the og text of constitution you cant say framers didnt intent to include it. But
does the intent of framers bind us to a particular understanding? [ then secularism, socialism,
extension of reservation post 10 years shouldn’t be allowed]. Is a restriction of speech part
of basic structure? Those essential aspects of the constitution - the unalterable cannot be
changed. Is defamation and restrictions under 19(2) is basic, or the freedom is basic to the
constitution? To what extent is ‘intent of framers’ relevant? Evidently, intent ought not to
lock us in a particular kind of interpretation which does not suit the interests of the society.
Wherever intent isn’t required to meet the demands of the society - it shouldn’t be allowed
to prevail.

2) defamation is a distinct ground; state has duty to protect rights, this is explicitly setting out right
in conflict with another right, state argues wehter reputation can be located in 21; reading
restrictions under 19(2) w 21 - defamation linked to 21. So far - 19(1)(d) w 21 - state argues read
restriction w 21; what state is protecting is a right under 21 (by defamation)

Speech protected under 499 [IPC]; constitutional freedom must be understood way more
important than as given in IPC; we don’t need 19(1)(a) as long as we have IPC offense; right becomes
residue - reductionist reading of 19(1)(a) -

Typology method is far more preferable to a method that locates restrictions so widely (preamble
and 21); 19(2) must be read w preamble fraternity to say why there must be a law on defamation.
19(1)(a) must take colour from goals of constitution and preamble. Fraternity can be applied
horizontally against individuals. [reading of fraternity w 21 to locate right tto reputation]. Article 21
- what is the scope of dignity? Distinction between dignity and reputation. Only some people have
reputation but all have dignity. Associated w caste class hierarchy - reputation. She argues we’ve
moved to a wider understanding of dignity that each person has. Reading of reputation is in a much
narrower sense - older understanding of dignity w 21.

Interpret rights widely to understand restrictions widely, very little reference to significance of
speech, scope of free speech - conventionally defamation is a restriction. How does shreya singhal
not constitute a road block? Sets out distinction between indian and english jurisprudence. 19(1)(a)
- only restrictions are 19(2) - whatever we’re doing is not in violation of logic in shreya singhal.

Court relies on fundamental dignity given under a.21 and constitutional ideas of fraternity to say it
is not a disproportionate restriction on speech.

Module 6: Protection of Life & Personal Liberty

07.09.2020
• Module Six - about the interpretive plane of Article 21
• Article 20, 21 and 22 - originally inserted to create safeguard with respect to private liberty specially
in criminal law (in relation to people who face criminal charges or are faced with coercive elements
of the criminal justice system)
• Read : Taking suffering seriously by Professor Baxi

• Article 21 - what was the meaning intended to be given to it?

1. Drafting history in CA reveals that the purpose could be that no person shall be deprived of liberty
except for the procedure established by law
a. Why this term "procedure established by law" replaced the earlier drafts that simply had words like
" law" or "substantive provision of law"
b. A well known story about this - One of the members of the drafting committee Sir B.N. Rau
visited the US to seek feedback on some of the provisions in the constitution. Justice Felix
Frankfurter advice not to include a personal liberty clause that would allow for an expansive
interpretation (why?) (and how this story well known)
2. Protection by law - means procedural due process? (narrow textual law - that the courts would
then simply apply and look for pre-existing procedure) Or substantive standard too? (where the
courts, instead of just justifying an act by presence of objective laws would inquire into their quality
and see if they are upsetting other constitutional values) - This debate has been going in the assembly
itself (from the experience with preventive decision in the late colonial times) and was raised again
in courts(Maneka Gandhi)
3. The fact that 21 and 22 follow each other i.e. liberty follows preventive detention : shows that
these were meant to be read in integrated fashion (though the courts did not do that for the longest
time).

• Magna Carta spoke the earliest against due process (procedural rights) in relation to rights of
property owners to not be deprived of their properties but for due process of law (i.e. due process
was dealing with property that time - now its meaning has shifted and evolved to include personal
liberties also; and now in modern times even to justify socio-legal entitlements)
• In European medieval times, the social contract theory(of supreme individual will) was connected
with land ownership rights ka protection but by the time of the drafting of the India constitution,
the imagination for due process even included personal liberties, arbitrary arrests and how relevance
of personal liberties would be helpful against administrative action too (like when employees are
being unfairly treated in departmental proceedings etcetera).
• Article 21 then became a vehicle for the courts to read procedural protections for government
employees into it much before, the courts started reading it as inclusive of socio-economic
entitlements
• Historical evolution of due process : its protection has an
1. Emphasis on land ownership rights
2. Emphasis on rights in a criminal procedure
3. And also meant as a protection for a person in exceptional times

• Hence, if so many meanings, the foundational question becomes : If all of these (especially the last
ones) could be accounted for in laws of criminal procedure, why did the framers add a separate set
of provisions in the constitution (namely 20, 21 and 22)?
1. Higher status than normal laws?
2. Should due process be read as procedural norms (like Justice Felix had suggested and like courts
had been reading in terror-related cases, as Mrinal shows) or as substantive norms (like courts began
reading after the 1970s especially in the Maneka Gandhi case)?
3. Despite whatever pathway is chosen to read, there has to be a core meaning of it all - Core could
(for context) be criminal law : 20,21 and 22 then prove the common grounds between constitution
and criminal procedure
4. Using these, the lapses/gaps/irregularities of criminal procedure can be corrected by constitutional
courts and judges (so cases like DK Basu, Joginder Singh that set up guidelines for arrest and all - had
to be based on personal liberty clause for criminal law reform)
• Lets start with the language of the provisions and later we can explore the interpretative claims

• Article 20 - Protection in respect of conviction for offences - "20. (1) No person shall be convicted
of any offence except for violation of a law in force at the time of the commission of the Act charged
as an offence, nor be subjected to a penalty greater than that which might have been inflicted under
the law in force at the time of the commission of the offence (rule against retrospective application
of law)
(2) No person shall be prosecuted and punished for the same offence more than once. (rule against
double jeopardy - Indian context is different from others - so if in India, a trial court has acquitted
you, it can be appealed again by state or victim lawyers. Though other jurisdictions do not allow
that)
(3) No person accused of any offence shall be compelled to be a witness against himself."

• Article 21 - Protection of Life and Personal Liberty - "21. No person shall be deprived of his life or
personal liberty except according to procedure established by law."
1. Structural Rationale : Personal liberty in mind of drafters was relating to liberty of a person in
criminal proceedings (and somewhat evidence)
2. Overtime, this interpretation widened and incremented - 21 is now repository for many more
rights, beyond criminal trial rights (using the open language of the article)
a. First it started being used even for investigative stage
b. Late 1970/1980 early on - primary vehicle for socio-economic rights through SAL and PIL and
appellate litigation
3. Dynamic reading : Open textured provision left it to subsequent interpretators. But legal
formalists might say that such reinterpretation after reinterpretation might lead to loss of touch of
the original intentions of the drafters (i.e. protection for accused) (debate between HLA Hart and
Lon Fuller on idea of open textured law; where Hart opined that when laws and morals dispute,
judicial interpretation can set the interpretation of what is right but Fuller prescribed proper points
that a law must follow).
a. So courts reading so many rights into Article 21 - even non-justiciable DPSP; risks of courts
codifying like a legislature what they deem fit?

• Interpretative Meaning of 21 in context of preventive detention

• AK Gopalan case
1. Leader of communist party; gave speeches (and publications) criticising incumbent state
(congress) government
2. Taken under PD act 1960 - it had provisions to not inform detenu about the charges they are
being detained (for three months without trial or charging). Further no right to counsel before
advisory board. Did not have that time how advisory boards are to be formed and who will be their
members
3. It was contested in court that : PD Act against Personal liberty 21, 19(1)(d) - freedom of
movement and 22(1) and (2)

4. Supreme Court
a. Does not agree with Mr. AK Gopalan; upholds PD act provisions
b. Dissent - Justice Saiyad Fazal Ali : finds merit in petitioners argument and said some of these PD
provisions should be read down and stated FR need to be read together - the established practise
right now.
c. Majority however accept government's argument
i. Government argued that PD is an exception and is not to be compared with normal criminal
justice system, 19(1)(d), 21, 22 are all to be seen as separate rights rather than what the petitioners
argue they should
ii. Melath Krishnan Nambiar appearing for petitioners argued that this is wrong way to look at it :
they all should be read as an integrated basket of personal liberties - theory of inter-relationship of
fundamental rights was supported by him
iii. Government replied that this puts undue pressure on state to justify all FR curtailment when a
person is taken into PD
iv. The courts accepted governmental argument - the procedural due process view test should be of
Article 21 i.e. if there is a procedure established by law and executive is within its bounds, court has
no more role to play
v. Simply, that court was not that powered to examine the validity of law that legislature has already
set in place

• RC Cooper Case - Bank Nationalization case

1. Nothing to do with PD but integrated reading of FR
2. Indira Gandhi - passed legislation to nationalize 10 private banks (as they were not lending to small
people, neither opening branches in rural areas coz they had no incentive - hence, nationalized with
a redistributive purpose in mind)
3. Main argument by share holders of these banks - 19(1)(g) and (f) {practice any profession and
property rights} as well as deprivation of personal liberty under 21 due to taking away their
controlling rights over their bank assets
4. Court stuck to traditional view - FR were meant for individuals not corporates and individual
shareholders can approach the court in their individual capacities
5. Concurring opinion : said nationalization is fine : but said something about connection of 21 +
19(1)(g) + 19(1)(f) : said economic rights, property rights and larger freedom have to read in an
integrated fashion (already a negation of AK Gopalan - i.e. even before Maneka Gandhi case, a
constitutional bench had already acknowledged the idea of integrated approach)

• Question of Habeas corpus(HB) - Makhan Singh v. State of Punjab case (regressive case)
1. Person deserted his post in armed conflict and was subsequently court-martialed for it. His lawyers
came to court saying that he was being denied Habeas corpus rights.
2. Court ruled HB rights from 21 and 32 would not be given during emergency declaration (due to
Indo-china war); but also the courts read the rights individually, and followed the theoretical
rationale of AK Gopalan to say that no integration.

• ADM Jabalpur v. Shivkant Shukla : given at the peak of the emergency, 1976 (risk of internal
disturbance, situations involving war)
1. During that time, opposition parties, in northern states, leaders, student unions etcetera taken
into detention across India by various states - and district magistrates were largely the ones who
passed such PD under MISA (Lallu Prasad Yadav was detained under it and when his first daughter
was born, he named her MISA haha; many political careers started that time)
2. Many of these challenged decisions of PD in HC and many HC allowed habeas corpus writs as
district magistrates had not given enough thought to what they were doing
3. State tried to maintain all the detentions and filed this case
4. Court succumbs to the pressure of the legislature and agreed to central government's arguments
relating to need of PD; majority stated that due to internal emergency, right to HB and liberty under
21 and 32 are not available to detenues
5. Cited Makhan Singh case in their favour and did not interfere
6. Justice H.R. Khanna's detention : HB rights are actually not exclusively contained in FR under
part III and even if the FR are suspended during emergency, there are certain inalienable natural
rights that includes HB (stated that in common law history, even before constitution, HB were filed
in colonial courts and privy councils that justified HB without FR)

• Once the Janta Party came into power in 1978, they undid many wrongs of the 42nd amendment
by passing 44th amendment - Especially to Article 358 stating that rights flowing from Article 19
cannot be suspended even during times of emergency (unless the emergency is for war or external
aggression). This amendment was specifically a response to ADM Jabalpur- which is interesting as
legislation here is correcting the judiciary

• Maneka Gandhi Case (2nd daughter in law of Indira Gandhi)

1. Wanted to leave the country with a baby in her due to marital differences but at the insistence of
Mrs. Indira Gandhi that a regional passport officer refused to extend her passport renewable
application.
2. Must more interesting part is that, the Indira Gandhi government had ended its term (was in fact
in opposition that time) by the time such rejection was made - and it was solely her political
influence.
3. In Delhi HC, Maneka Gandhi file a writ for violation of 19(1)(d).
4. Ironically, when the stakes were very high with FR in AK Gopalan and especially in ADK
Jabalpur, the courts did not do much but in this passport case, court played the boss music and did
awesome interpretation for FR : The interlink of the golden triangle of 19 and 21 and 14 was made-
justification for courts to reject AK Gopalan case (though it was not over-ruled)
5. Maneka Gandhi did not begin the substantive due process inquiries in India (it began the
procedural due process inquiries and supported the integrated reading of fundamental rights that
AK Gopalan had refused). In fact, substantive due process can be seen as back as Fazal Ali's dissent
in AK Gopalan (not in Subbarao's dissent in Kharak Singh though)
6. Later in Puttaswamy in 2017 Justice Chandrachud over-rules the AK Gopalan case

• Kharak Singh v. State of UP

1. In 1963, right to privacy, challenged UP police regulation that allowed police to conduct
'domiciliary visit' in homes of history sheeters whenever they wanted
2. This unlimited power of police was challenged on basis of Article 21 and 19(1)(d) and also equality
provisions
3. The court upheld UP Police regulations : accepted government argument that it was in interest of
crime and public safety and the visits are not being used to conduct widespread arrests and was just
to collect info
4. Dissent : Justice Subbarao : right to privacy argument recognized by him (right to privacy btw did
not appear anywhere in Indian constitution though other constitutions like American had to
clearly).
a. Majority stated that MP Sharma v. Satish Sharma - Indian constitution did not have explicit right
to privacy and it was not right for judges to read in an unenumerated right that drafters had not
included
b. Justice Subbarao disagreed and stated that Right to privacy is a penumbral right esp. against
arbitrary state action and just as individual is given rights in criminal proceedings, history sheeters
etc should also be given that right
5. 1990s smaller benches started recognizing right to privacy but largely, this case became the citation
to deny right to privacy

• Weirdly, right to education was added (by 86th amendment in 2002) as its sub-part : "21A. The
State shall provide free and compulsory education to all children of the age of six to fourteen years
in such manner as the State may, by law, determine"
• Article 21 (personal liberty esp.) has been expanded far and wide using the concept of Dignity :
Erin Daly enumerates that

• Article 22 - Protection against arrest and detention in certain cases ; focus of readings
• "22.
1. No person who is arrested shall be detained in custody without being informed, as soon as may
be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by,
a legal practitioner of his choice.
2. Every person who is arrested and detained in custody shall be produced before the nearest
magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the
journey from the place of arrest to the court of the magistrate and no such person shall be detained
in custody beyond the said period without the authority of a magistrate.
3. Nothing in clauses (1) and (2) shall apply—
a. to any person who for the time being is an enemy alien; or
b. to any person who is arrested or detained under any law providing for preventive detention.
4. No law providing for preventive detention shall authorize the detention of a person for a longer
period than three months unless—
a. an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed
as, Judges of a High Court has reported before the expiration of the said period of three months that
there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub-clause shall authorize the detention of any person beyond the
maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
b. such person is detained in accordance with the provisions of any law made by Parliament under
sub-clauses (a) and (b) of clause (7).
5. When any person is detained in pursuance of an order made under any law providing for
preventive detention, the authority making the order shall, as soon as may be, communicate to such
person the grounds on which the order has been made and shall afford him the earliest opportunity
of making a representation against the order.
6. Nothing in clause (5) shall require the authority making any such order as is referred to in that
clause to disclose facts which such authority considers to be against the public interest to disclose.
7. Parliament may by law prescribe— (ignore the previous provisions using special laws like National
security acts, unlawful activities prevention act)
a. the circumstances under which, and the class or classes of cases in which, a person may be detained
for a period longer than three months under any law providing for preventive detention without
obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of
clause (4);
b. the maximum period for which any person may in any class or classes of cases be detained under
any law providing for preventive detention; and
c. the procedure to be followed by an Advisory Board in an inquiry under *[sub-clause (a) of clause
(4)]."

• Article 22 - blackhole of the Indian constitution, if you see it as a tool of liberty: Should 22(7) be
there that allows the government to ignore other liberty provisions. It is a good project to do a
comparative constitutional study to see how many countries have such blackhole in their
constitutions.

08.09.2020

Liberty restricting effect - provisions such as preventive detention

Adjudication of socio-economic rights- justifications for engagement w socio-economic rights -

arguments against judicial intervention

Ideas of human dignity to expand the idea of personal liberty - bodily autonomy and reproductive
rights
Reasonableness approach - test of reasonable classification - evaluating whether govts reasons are
coherent connected to a legitimate objective and whether they can withstand scrutiny. Reasons for
those classification must be traced back to a legitimate governmental objective. Court has to evaluate
the cogency of these reasons. Lower degree of agency of Courts.

Non-arbitrariness approach - reason may have connection, but either they don't directly address
those objectives, or go beyond these goals and have an effect of intruding into other rights.
Criticism - non-structured approach, doesn't look at intent of govt measure, only looks at
consequences and asks whether these are harmful to citizens [rational basis review]

Court could have used a stricter reasonableness test where measure looks coherent prima facie but
the impact is harmful by virtue of design of policy and its enforcement over time, a pattern of
discrimination emerges. [newer literature - distinction between these two tests isn’t so relevant]

Invoking 3 standards of review - judges have been inconsistent - despite use of proportionality review
in puttaswamy - what subject matter should attract each level of scrutiny
Appropriate level of judicial scrutiny - structured understanding - in other countries

Sidchu’s Point - theoretical approaches to judicial scrutiny would be relevant to understand and
evaluate legislative classifications and equal protection but also liberty-based review; whether or not
state has good reason to do smth(distinguish between certain classes of persons); liberty review -
whether state has a legitimate ground to curtail your liberty

19 - subject to reasonable restrictions - set of rights and set of justifications that the state can invoke
to place restrictions thru legislation and executive action - equal protection review - whether
reasonable classification? Or whether consequences are likely to be arbitrary? -- liberty review - court
evaluates restraints - when we read open textured provision(art. 21), where is this balance to be
found? [preventive detention] [ denials of procedural safeguard, detention can be longer - power to
state to make laws]

In art 19 there at least is a textual basis irrespective of court inconsistencies - grounds on which govt
to justify restraints - if unable, textualist reading/approach will enable court will take liberty
enhancing approach
But with art 22 - broadly laws authorizing PD, have been upheld
Art 21- language open textured [life & liberty] - structural similarity between methods of review for
equal protection under 14 and liberty based review under 21- abstract level comparison is being
made - they’re not the same - two different sets of standards - courts have read 14,19,21 together in
a way not distinguishing between reviews in their reasoning - invoke the articles assuming both levels
of scrutiny can be invoked - sliding scale not a mechanical formula without close appreciation of
facts. Rational basis review broadly mirrors reasonability test. [anwar ali sarkar - test in for arcane
language - intelligible differentia]

Rational Basis Review

Are classifications based on cogent reasons; Whether the reasons are clearly related to the goal. This
standard may be appropriate when we can presume the validity of a legislation and we can accept
that court has limited role of correcting imbalances in evaluating a legislation - what happens when
they’re framed in situations when there’s an imbalance: where reasons for classification, despite
being followed, the law’s enforcement leads to adverse consequences - to deal w such situations we
turn to standard of proportionality.

Proportionality based review

Inquiry - is the impugned order proportionate to objective; alternate measure could have been used
without intruding into other rights? Court can ask whether executive considered other alternative
measures? Gives court leeway in terms of suggesting counter measures and reviewing what executive
official has done. Encouraging court to enter into a dialogue w legislature - to give recommendations.
Higher degree of agency.

Criticism - applying the test of proportionality to evaluate the enforcement of FRs, specially liberty
based rights might be faced with a problem because while pursuing a collective political, socio-
economic goal you might have to use state power which has the effect of restricting other rights.In
choosing certain alternatives and pushing the executive to prioritise measure - net effect - another
right gets derogated and is given less importance. Puttaswamy - court follows logical approach to this
question; Chandrachud J. says that proportionality test starts with asking whether there is a legal
measure under which strain of liberty is taking place, once that is established, you identify the
objective and whether the measure is intrusive and whether others could be considered. Ambiguity
with respect to - which rights deserve such a review and what could be consequences of using the
standard vis-a-vis FRs?

Disparate impact - equal protection review; different lens- whether or not rule had classifications,
liberty 21 based review one takes perspective of the citizen, are my rights being undermined by a
certain measure. Question not of comparison. - basic difference. Whether govt has given cogent
reasons for curtailing your liberty. Default approach to 21 - is to say life liberty is protected but what
are the circumstances wherein govt can reasonably restrict it. Og context - fair trial. ‘
Judicial creativity - measures might be pursuing a goal, but intrusion into citizen rights is not
permissible, so use another less intrusive measure.
Strict Scrutiny
Here, legitimacy of objective is being scrutinized. Emphasis on goal itself. Court questions the
wisdom of the legislature. Court looks at it through 19(1)(g) - classification done in a protective
manner - court finds that the rationale in Anuj Garg was patriarchal and finds no place in a
contemporary society, not the mechanism by which liberty is being curtailed, but the objective itself
is in question and is doubtful. Sinha J. adopts the strict scrutiny approach(Anuj Garg). People argue
proportionate review could've been used in this case - since other measures could’ve been taken to
achieve the same objective. Critics have found that there are judges like Balakrishna (In Ashoka
Thakur) who took a more cautious approach: it is more appropriate for countries where provisions
dealing with equality are not so elaborate. In india, policies of compensatory discrimination are far
more elaborate. The apprehension was that a petitioner could easily challenge any provision against
strict scrutiny, and affirmative action policies could be questioned without understanding historical
nuances of that provision. Later cases - courts have tried to clarify proportionality review can be used
when the government is trying to advance economic policies, what category of rights wherein ss can
be engaged. Court not being deferential to executive and legislature, questioning the wisdom of
legislature - often finding the policies themselves are unconstitutional. Courts look at overarching
objectives and whether or not it is constitutionally permissible.

Different rights deserve different standards of review

Regulation of social welfare - they say that the court should largely defer to objectives set out in
legislation and executive action and largely follow the reasonableness standard - balancing between
personal liberty and state interest. Some issues where indirect forms of dicrimination involved -
Impact of labour laws on women - laws themselves might not reflect it; but enforcement might lead
to gendered discrimination. Proportionality review thus required, intention of the rule maker not
imp, actual enforcement leads to a certain pattern of discrimination. Violation of FRs which are
more important - Law of arrest, search & seizure - scholars argue there strict scrutiny required -
liberty interest far more important - stakes are much higher.

Minimalism as a judicial strategy isn’t about not asking questions about what executive or legislature
has done, or withdrawing from judicial review, but taking a more pragmatic approach where u frame
legal strategy as narrowly as possible based on the belief that it’s not the job of court to rule on deeper
principled questions, limit themselves on facts before them, give relief on the immediate question
before them

09.09.2020
Point - indian courts by virtue of adopting the theory of interrelationship between FRs - made the
conceptual distinction between equality based review and liberty based review less important.
Contemporary Judicial discourse - rights flowing from 14,19,21 read together to be known as
‘golden triangle of FRs’. The standard of scrutiny to be adopted by Courts for each of these rights
are fused - no clarity wrt which right deserves which standard of judicial protection. Comparative
literature reference becomes important and relevant. Preventive detention - socio-economic rights.

Article 21 - basis of liberty based review. Drafting history says the words of the provision was
primarily meant to include protections in the context of the criminal justice system. Protections
which an accused would get in a criminal trial. Structural rationale behind 21 was to offer a larger
idea of personal liberty, could be used to bolster protections which would come in the law of
criminal procedure. Over time w subsequent interpretations, expansion of 21 led to creation of a
repository of several other rights which have nothing to do with the protections of accused in the
criminal justice system. Unlike the original emphasis, on criminal trial, 21 extended to protection
given during the investigative stage as well or in evidence collection. 1970 onwards 21 has been the
primary instrument to recognise newer rights through the vehicle of SIL and appellate litigation -
people serving terms beyond prescribed punishments. Expansive interpretation. Vast jurisprudence.

Framers deliberately chose open textured language, so as to allow courts to have subsequent
interpretations to give it newer meaning - dynamic interpretation of 21. Leaving it to subsequent
interpreters is one way to see things. Legal formalists say by adding on to the original meaning of the
law’s objective by way of interpretations, it ends up taking away from the core meaning of it,
undermining the point of the right itself. If a right was created with an objective in mind (protection
of accused in trial) why should we accept the court looking at a basket of rights depending on case
to case basis, now being pegged back to art 21? Usually this is motivated by idea of justice and larger
common law ideals such as good conscience and equity but there are several situations where the
court has looked at presumptive balance of FRs and their relative priority and have chosen one over
the other by invoking 21. Cases where provisions of Directive principles that are not justiciable have
been read into 21, questions of health labour welfare, education - allows courts to become
undisciplined, allowing them to codify what they think is important in terms of policy choices -
undermining the point of having that right itself. To what extent must the progressive reading be
supported?

Interpretative meaning of 21 in the context of Preventive Detention

AP Gopalan v. State of Madras

Leader of the communist party. He’d given speeches to workers to protest against the incumbent
government. Govt had reasons to be unhappy with his actions. He was taken into preventive
detention under PD Act, passed in 1950 itself, law passed soon after constitution, had provisions
which didn’t allow detinue to be straight away informed of charges filed against them - giving
discretion to home sec or police to detain a person without informing them of charges. Constn
provisions spoke of a 3 months limit for PD without trial and information of charges. Arg - even
though the PD act spoke of advisory board to review individual cases, there was no right to be
represented by a lawyer before advisory boards, no right of counsel as a safeguard in the criminal
justice context. 22(1) and 22(2) in their og form contemplated a time limit to detention in cases
meant for investigation, and to be represented by a lawyer. PD Act - neither safeguards were given
meaningfully. Didn’t have elaborate provisions on advisory boards.
Contested on the ground that the provisions of PD Act are violative of liberty based provisions in
19,21, and 22. Petitioner - apart from violating 21, general right to citizens, 19(1)(d) is violated,
22(1),(2) in particular. Argued that the PD Act fails the test of each of these rights, placing
restrictions on rights normally given in CJS. There was already Language that allowed for PD act
creation, tilted the balance largely in favour of state. Constitution PD provisions weren’t so elaborate
as they are now. National Security Act, UAPA - extension of time period. Right to representation -
extended to the investigation stage as well apart from trial.

SC majority doesn’t agree with the challenges filed by the petitioner, agrees w govt opinion - PD Act
reflects a zone of exception which shouldn’t be compared w ordinary structure of criminal law.
Protections of CJS normally flowing shouldn’t be applied in law of PD, court should give state
leeway in designing provisions, ends up upholding provisions of PD Act. Fazal Ali dissent - finds
merit in petitioners argument. Interpretative shift which dissenting opinion suggests is focussed
more on which these liberty oriented provisions must be read.
Majority said 19(1)(d), 21, and protection against detention are rights that should be seen as separate
rights. Challenge based on liberty cannot be evaluated by looking at connection between these rights
as alleged by petitioners. MK Nambyar - this is the wrong way of looking at liberty oriented
provisions, rights flowing from article 19,21,22 should be read as an integrated basket of rights,
meaning of rights flowing from 21 gains colour through connection of rights as they appear in 19
and safeguards in 22. He supports the interrelationship of Fundamental Rights, shouldn’t be read
in isolation as separate silos. The Government responds by saying this would place an undue burden
on the state to demonstrate reasons for restricting personal liberty, everytime someone is arrested,
there is going to be curtailment. Rights flowing from 19, 21 shouldn’t be read in an interlinked
fashion - State’s argument. Court agreed and upheld procedural due process view, we look at
provisions dealing with restrictions - primary test should be language of 21. ‘Procedure established
by Law’ - existence of law which contemplates curtailment of liberty, executive if following laid
down procedure, court has no role to play except inquiry wrt existence of law - narrow/procedural
understanding of the due process clause. Larger questions of detinue’s entitlement are irrelevant bc
law doesn’t address them. 22 explicitly doesn’t require safeguards. Court talks about time limit, right
to be represented - understood in a narrow sense without PD context. Criticised - Case unduly
undermined the possibility of liberty based clauses in the constitution. Much later, in other contexts,
the courts start moving away from procedural due process understanding of 21.

Idea of PL 21 protected against arbitrary use of state power in criminal trial. Natural justice
principles applied in administrative proceedings, should also be seen with the lens of 21. 21 is not
just the repository of rights for fair trial, 21 can also be the basis for procedural safeguards. Admin
proceedings causing adverse consequences to citizens harmed. 1960s late, court starts acknowledging
ordinary principles of NJ in the context of administrative proceedings. Commentators say - court
departing from narrow reading of 21, NJ does play a role in different classes of admin proceedings.
But since, AK Gopalan dealt w PD which ordinarily deals w concerns about national security,
preventing organised crime - law was clearly being misused against political opposition.
Context - Should courts adopt a more expansive approach to evaluate challenges to PD laws?

Courts approach has been deferential in national security laws, those dealing w PD> question of
suspension of habeas corpus rights in
Makhan Singh Tarsikkka v. State of Punjab - court looked at arguments for suspension.
Person had deserted his unit in the armed forces, subjected for court martial proceedings, lawyers
said he was denied habeas corpus. Court said the right of habeas corpus available would not be
available wherein an emergency declaration is in place, rights flowing from 21,22 have to be read
separately. Invocation of Personal liberty 21 to demand HC was differentiated from argument about
PD. Court largely followed the theoretical framework of Gopalan - 21&22 separately with no real
connection.

Approach later gets modified in other contexts leading to confusion whether gopalan must be
substantively overruled. Court has appreciated interrelation theory, haven’t explicitly undone the
result of a case like gopalan, where court refuse to examine the vires of statute dealing w PD, such is
the case w terrorism statutes etc, upheld PD provisions. And, 22(7) protective device which
empowers parliament and state legislature to include strong provisions of PD. Gopalan was a
dominant case - became a citation for courts to say they are not empowered to evaluate the validity
of the law under which preventive detention was authorised - they were following ‘procedural due
process’ - court must largely defer to the procedure laid down by legislature that curtails liberty.
Substantive - courts inquire whether processes laid down by the law are violating other substantive
safeguards flowing from other rights of the constitution.

How to read FRs - larger interpretative question - shift taking place. One level -argument for reading
in safeguards of NJ into 21 in admin context. Other shift was also taking place.

RC Cooper v. UOI(bank nationalisation case)

Identified 10 pvt sector banks that were converted into public sector banks, policy rationale was that
the private sector banks weren’t catering to poor sections of the society, with a redistributive role in
mind. Legislation and executive orders. Invoking rationale of redistribution (more popular in agri
reforms) - Gandhi faced legal challenges by shareholders of these pvt sector banks. Court looks at
nationalisation of the banks against rights flowing from 19. Particularly 19(1)(g) - shareholders
argument - deprivation of personal liberty - taking away pvt assets. Dimension of PL was being
undermined by taking away assets, they said. Court got into the question of whether only individuals
can seek protection under 19(1)(g) or whether corporate firms can also invoke enforcement of
19(1)(g). Spends a lot of time on the question of ‘legal personality’ - should the rights flowing from
19 be available to corporate firms? Later law commission report says affirmative. Court says FR are
available to individuals, more so in 19, but recognised that shareholders by virtue of holding shares
can approach court and seek remedies against appropriation of their shares.
Concurring opinion - theory of interrelationship - question to be examined how petitioners
constructed their argument by relying upon the connection between rights flowing from 19(1)(g),
21, and 19(1)(f). When the court examines, must invoke these rights together. Opinion- advances
the theory of interrelationship - not a viable strategy to read these rights separately, should be read
contextually and in an integrated fashion. Negation of abstract theory in Ak gopalan. Despite not
arriving at a result that strikes down nationalisation, judges sympathetic to the view that FRs have to
be read in an integrated view.

Theory of substantive due process approach - maneka Gandhi defends - idea that rights flowing from
21 cannot be read narrowly and have connection with other liberties primarily from 19, and also 14.
Court disagrees with gopalan and says that rights must be read together. - golden triangle of rights.
Theory of interrelationship of rights.

11.08.2020

ADM Jabalpur v. Shivkant Shukla (1976)

Decision given at the peak of emergency, the court largely succumbs to executive pressure and
doesn’t interfere with detention orders given all over the country. Court looked at preventive
detention orders given under maintenance of internal security act, most detentions were given under
this only [MISA]. 6-9 HCs allowed habeas corpus writs finding that wherein they decided that
district magistrates hadn’t given sufficient reasons for detention - all cases clubbed together and
appealed by respective state governments, trying to defend the detention orders. Court had an
opportunity to review AK Gopalan jurisprudence, look at law of preventive detention carefully,
involving 100s of political opponents, student activists and other arbitrary arrests clubbed together.
Opportunity for court to stand up to the abuse of power by the executive of the day.
Majority - decided to agree w central govt arguments about need for PD, didn’t entertain challenges
based on FR to entertain habeas corpus writs. Held that since there is internal emergency in place
under 352, right of habeas corpus flowing from 21 and 32 is not available to detinues - argued that
they have right to move to constitutional courts to seek a habeas corpus; trying to protect liberty
interests under 21 - court said both your right to move a habeas corpus petition, and right to seek
protection of liberty - because all rights under part III are suspended during an internal emergency.
Herein, PD law was being misused to silence political opposition, by citing the tarsikka case wherein
the emergency situation was different, PD law was being used bc of genuine concerns. Court uses
previous cases to rule in favour of the government and not interfere, instead of getting into political
questions.
Dissenting opinion - HR Khanna J. - Habeas Corpus rights claimed by petitioner are not exclusively
contained in FRs, even if these rights stand suspended, according to him citizens have a set of natural
rights available to them and habeas corpus is a part of it, they don’t have to rely on rights flowing
from 21 and 32. This touches the larger question and the broader debate in legal theory - Positive
law being misused by the government, leads to certain gaps leading to rights violation - how far can
the court read in newer remedies to close those gaps, recognise pre-existing rights by resorting to
naturalistic way of reading rights that is inherent to every person. Khanna questions not only the
detention orders’ validity, but also the denial of HC writ during emergency, looks at common law
history, prior to enforcement of constitution, there used to be HC writs filed in colonial courts - he
argues that there’s both an argument in legal history and legal philosophy to justify recognition of
habeas corpus rights even without the part III rights of the constitution. The majority opinion was
an example of the Court collapsing under executive pressure.

Maneka Gandhi v. UOI

She filed a writ petition for renewal of her passport, which was denied by the regional passport officer
because of Indira Gandhi’s influence and pressure. [She was in opposition, her political influence
played a role in this case], thereby preventing her from leaving the country. Endorsing Substantive
due process. However, result of the case is that the court adopts a broader standard of review but in
the outcome, maneka gandhi had been given a post-decisional hearing that would be sufficient to
meet the needs of the case.

Argued - her rights under 19(1)(d) are being violated, it should be read to include the right to travel
outside the country. This case doesn’t seem as important to attract judicial scrutiny. But, the court
does. Court looks at it not just under arguments 19(1)(d) but takes a broader view that rights under
19 must be read with and correlated with those under 21 and rights flowing from 14. Case becomes
justification for the court to reject the interpretative approach taken in AK Gopalan wherein
fundamental rights were being narrowly read[as rights given to accused in criminal trial], as isolated
silos, court refused to interfere citing that 19,21,22 were separate and operated in different domains.
It didn’t explicitly overrule AK Gopalan, but it should have. On the larger interpretive question, the
approach taken in Maneka was diametrically the opposite. The decision based on the premise that
FRs - 14,19,21 must be read together as integrated rights, and safeguards flowing from them must
be assured to the individual before the court. This approach is the mainstay of several interventions
in rights based cases. Interpretative shift wasn’t unique to the Maneka Gandhi case.
Similar was the RC Cooper 1970 case dealing with bank nationalisation - look at it through a
doctrinal lens. They should have a right to file a writ, they said. Policy of bank nationalisation was
opposed by shareholders who sought the right to file a writ and claim rights flowing from 19(1)f and
19(1)g linked to rights from 14 and 21. 14 - why is it that only a class of banks have been chosen-
rational criteria has been given by state? 21 - not just the interest of shareholder affected, broader
liberty interest of depositors of the bank. Socio-economic and equal protection review. So this
linking was already done, and acknowledged by one of the judges in Cooper, so the reasoning had a
precedent, hence Maneka gandhi wasn’t ground breaking -- but the difference lies in the impact/
results and the operative value -- constitutional bench that is unanimous, they endorsed the theory
of interrelationship of rights more meaningfully and applied it to the outcome of the case.
Larger interpretative shift that takes place - as opposed to approach
taken in AK Gopalan - Procedural due process whether law exists and
provides for deprivation of liberty → now adopting much broader and
substantive standard of review: you’re not only looking at existence
of laws but also how operation of law affects different kinds of
rights available. Substantive because the court is not only
evaluating compliance laid down by law, but also looking at the fact
that despite following that procedure, there has been a deprivation
or violation of a substantive right - shift becomes very clear in
Maneka Gandhi.
Only in Puttaswamy - Gopalan is explicitly overruled - Chandrachud J.

44th Amendment
Janta Party - 44th amendment - undid many of the wrongs - crucially, changed article 358 - rights
flowing from 20 and 21 cannot be suspended even during emergencies - this aspect of 44th
amendment response to ADM Jabalpur v. Shivkant Shukla. Maneka Gandhi case is more forward
looking - court trying to arrive at a broader interpretative approach towards rights-based challenges.
In ADM Jabalpur, majority view - FRs stand suspended - response has come from legislature, not
from the court reflected in the current language of Article 358.
So far: Interpretative shift from Gopalan [Another facet of minimalism, that of declining
substantive rights review but assessing procedural compliance] to Maneka- expansive reading of 21
was being sought throughout

Khadak Singh v. State of UP

Rights of privacy asserted, large bench, challenge against UP Police regulations which allowed police
to conduct ‘domiciliary visits’ against people who were known as history sheeters - named
maintained by police records - pre-convicted people who could cause law and order problems; they
could conduct visits anywhere and what the person and family was upto. Regulations were
replicated in other states. Petitioners challenged this on the premise that unlimited power of police
was violative of rights under Art. 21. Physical visits to home was a specific thing that was being
questioned - as a form of surveillance. Also on ground of 19(1)(d). Equality was also raised, the court
doesn’t engage. Court upholds the validity of these regulations, citing reasons given by the
government. Gives police the power to collect information. Culture of bringing empirical evidence
wasn’t there so govts reasons were being relied upon by the majority of the court. They decide not
to interfere.
Dissenting - K. Subbarao J. - recognises the arguments about right to privacy which wasn’t really
mentioned as such in the constitution alongside rights to fair trial. MP Sharma case - Indian
constitution doesn’t have right to privacy hence it isn't right for judges to read an unenumerated
right which wasn’t intended by the framers to be included - Subbarao disagrees - right to privacy is
a penumbral right which flows from protection given to person specially against arbitrary state
action in a criminal justice system, just as an accused is given protection, and individual should also
be given protection against surveillance practices which may subsequently may used to launch
criminal proceedings. He takes a structural, and holistic view and he acknowledges that the right to
privacy exists which may have been violated. His opinion was not taken on board by the majority.

Rohinton Nariman J. used the reasoning in all dissents in Puttaswamy.

14.09.2020 [He discusses bits and pieces of the reading relevant to preventive detention - the rest
isn’t important - read those bits again carefully]

Of Maternal State and Minimalist Judiciary

Judicial Minimalism - Courts not ruling on key principles.
To what extent can courts perform the countermajoritarian function? To strike down a statute or
invalidate an order. Countermajoritarian function of law itself is what Ambedkar supports -
instrument of social reform - through legal intervention.

B. Facets of Judicial Minimalism

Steps which the court might take to avoid substantively deciding a case by looking at the moral value
of a case, courts restrict themselves to questions of procedural compliance or practical consequences.
Authors say this is the approach the court has shown specially vis-a-vis anti-terror legislations and
national security provisions. Role of court as a dispute resolver, not the guardian of constitution.
One case at a time. Refusing to engage with deeper constitutional analysis even where FRs are
violated. Different from criticism of SC currently? Kashmir internet access delay in hearing, delay in
habeas corpus people detained under j&k public safety act, court’s decision not to hear benches and
look at important questions impact on democracy -electoral bonds, reorganisation of j&k - form of
judicial surrender to executive. Even when the court looks at these cases,it takes a view which favours
minimalism.

Page 60, 3rd Para, broad hypothesis of the paper

“The Supreme Court has fulfilled this narrow mediating role by granting broad deference to the
political wings in dealing with national security concerns on the one hand; and focusing on ensuring
procedural compliance and minimization of misuse, instead of engaging in a substantive rights
review”

Deferential approach to political wing - AK Gopalan is an example

Procedural Compliance
Haradhan Saha v. State of WB
Where the constitutionality of the next law to provide for preventive detention, the Maintenance of
Internal Security Act [hereinafter “MISA”], was challenged. The petitioners claimed that the Act
was unreasonable because it provided unguided power to the State to preventively detain a person,
as the grounds for detention were very broad and had not been defined.70 Further, there were no
standards for the objective assessment of the grounds for such detention. Second, the petitioners
contended that the Act violated Article 21 because the detenu was not given a proper right to be
heard(no automatic right to representation). Third, it was contended that Article 22 (5) was violated
because the Act did not provide for the machinery or just procedure to give effect to this Article.
Fourthly, the Act was said to violate Article 14 because it permitted discrimination in how the
government chose to deal with the offence.
Last ground was brought to tackle smuggling. Petitioners' argument - grounds for detention didn't
correlate directly with well-defined offences under ipc or any special legislation, so as to allow
authority(advisory board and then courts) to examine the detention order have clear cut criteria to
evaluate whether a case for the offence is made out. Otherwise, there is no real check on the use of
preventive detention power when grounds are so open-ended that the threshold cannot be contested
meaningfully before an advisory board or even a court - lack of clarity in the grounds for detention.
Individual detenu accused for smuggling, didn’t involve national security, ordinarily you would use
essential commodities act, but state used MISA to detain these people.
Rejecting these claims, the Court held that the grounds on which a person could be detained were
not vague and that it was permissible to detain a person for an act which was not by itself an offence
under any penal statute.
The focus of the Court, in testing the reasonableness of the provisions, was on examining whether
there were sufficient procedures for the detenu to make a representation. The Court stated that
procedural reasonableness could not be tested against abstract notions but had to be “judged in the
context of the urgency and the magnitude of the problem, the underlying purpose of the restrictions
and the prevailing conditions
Accordingly, it held that as long as the Government and the Advisory Board gave proper
consideration to the detenu’s representation, and there was no abuse of discretion, the requirement
of reasonableness and fairness was complied with, and thus there was no additional duty to disclose
any evidence to the detenu, or make a speaking order. Executive action in individual cases could
however be challenged on the grounds that the detenu had not been given the opportunity to make
a representation or that the detaining authority had abused the power of detention.
Therefore, in Haradhan Saha, the Court deferred to legislative wisdom in determining the
reasonableness of procedures. It did not test the provisions of MISA for substantive reasonableness
but limited its scrutiny to compliance with Article 22 restrictions. However, it left the window open
for a detenu to challenge executive action in individual cases for non-compliance with MISA
procedures.

Giani Bakshish Singh v Government of India, decided by the Court in 1973, dealt with a British
citizen of Indian origin, who had allegedly addressed secret meetings for planning the use of force to
effect Punjab’s secession from India. He was preventively detained by the Government on these
charges under the MISA, but was not charged for the commission of any crime. Before the Supreme
Court, the Government argued that if released, the petitioner would return to England and indulge
in prejudicial activities against India, which was why he had been detained. The Court refused to
review the detention order on merits, stating that it would not review the truth or sufficiency of the
grounds of detention,80 and could not test compliance with Article 22 by virtue of the existence of
a Proclamation of Emergency (following Makhan Singh pattern). It therefore confined itself to
interpreting clauses (a) and (b) of section 3(1), MISA, and concluded that the state had the power
under the said sections to detain a foreigner for purposes other than expelling him for the country.
No real scrutiny of grounds for detention under MISA.

Commentary on ADM Jabalpur

High Courts read Makhan Singh constructively -held that even if habeas corpus stands suspended
during emergency, there is still a possibility of procedural review of grounds of review when you find
that there is a very clear abuse of power. On appeal, a five-judge bench of the Supreme Court ruled
that courts did not have the power to review orders of detention, even if they were ultra vires the
legislation under which they had been imposed or on grounds of mala fide, since exercising such a
review, and granting the writ of habeas corpus would amount to the enforcement of Article 21
which was suspended during the Emergency.

AK Roy
1977 end - janta party - MISA was repealed. Even though it was upheld. 1978 it was done away with.
In 1980, Indira Gandhi came back into power, enacted National Security Ordinance for preventive
detention. It’s still in place, used in UP govt against people who criticize its functioning, in cases
dealing with cow slaughter. Vires of ordinance were challenged in AK Roy. Constitutional bench.
Justice and vagueness of grounds of detention, reasonableness of procedure prescribed. Court
doesn’t go into the question of justness of having a law on preventive detention. Court said the
constitution itself provides for PD and judicial review power doesn’t extend so far as to remove the
entire law. Court rejected that the grounds were vague. Court upholds the validity of NSA in the
form it existed at that time.

Therefore the Court upheld the provision, on the understanding that there was always scope for
judicial correction of executive error in individual cases. It also upheld the reasonableness of the
procedures, first by clarifying that both the reasonableness of procedures and the content of
principles of natural justice were context specific and not immutable; and secondly by reading in
safeguards, and engaging in statutory construction. The Court therefore held that a detenu did not
have the right to legal representation, the right to cross-examination, or the right to a public trial,
since the Constitution did not mandate it and the Act did not provide for it, and that the non-
availability of these rights did not impinge upon the reasonableness of the procedures under the Act.

15.09.2020
Language of the Constitution - 22(3), 22(7) - Right against self-incrimination cases

PD Law & their misuse

These provisions begin with substantive protections in CJS in preventive detention, subsequent
provisions go on to dilute those protections, giving considerable power to the legislature to enact
laws that can be subjected to misuse. Statutes are required, but during ordinary times would the
existence of such statutes which allow for PD in such an uncontrollable manner be compatible with
the idea of liberal democracy?
Broadly, NSA 1980 and UAPA 1957 - are the two Statutes being used against those who are critical
of the government, those who are active participants in civil society,are accused of participating in
terrorist acts with no real evidence. Their trials may not have been conducted, but the lack of
safeguards and the existence of laws on PD -- gives state power to brand individuals as involved in
terrorism to not only destroy their reputation and life, but inflict a lifetime of stigma by keeping
them in detention.
Ellgar Parishad cases - 13 people including teachers and activists - have been accused of planning
violence and targeting the PM. Abuse of power in the working of CJS. Misuse of PD laws. Delhi
riots - people who had no connection with those riots but spoke of and questioned the CAA have
been falsely accused and detained by the police under UAPA & NSA.

Leeway given to executive which Courts haven’t interfered in

Paper gives a summary of propositions in older cases which looked at PD laws. Sadandand, the court
can still examine scrutiny to evaluate whether detaining authority has complied with procedure laid
down for PD. Haradhan Saha involves detention on drug abuse etc. ADM Jabalpur, MISA
questioned. Grounds for detention are imprecise and vague and don’t correlate to IPC offences -
the court refuses to interfere with the validity of these provisions and upholds the state's power to
maintain national security, public safety and order. ADM Jabalpur - challenge is to habeas corpus
petitions - whether the right of HC survives during emergency - majority finds that the writ also
suspended by virtue of 21 and 32 because of 358, 359. [Dissenting opinion] Khanna argues HC is
not a specific, exclusive right to be found 21 and 32, but is a larger common law right which should
be available to citizens of a liberal democracy. Judicial courage and creativity.

MISA had gained a bad name during the emergency. Section 3 is the operative section. Open ended
nature of the section. a) conduct that threatens security, prejudicial to it - no evidence requirement,
invocation of these grounds is sufficient

Section 8 - AK Roy - time period - aware of grounds after 10 days - amended language gives 5-10 days
scope

S.9 similar to MISA - both central and state govt can appoint advisory boards - the way in which
advisory boards function
Subsequent sections lay down the procedure.

Law being misused - Detention under NSA - Dr. Kafil Khan - discussion on interpretation of
grounds under s.3 - state failed to spell out the prima facie case for any of the grounds mentioned.
Allahabad HC spelled out why detention wasn’t justified.

UAPA Act - dealing w arrest; 43a and b

Internal emergency, NSA seems like a replacement of MISA; UAPA has been there since 1967 and
amendments happened in 2008 following bombay terror attacks. 2008 - expanded powers of govt
to respond to terrorist activity - armed attack in bombay. 2019 - S.35 amendment - power to declare
organisations as terrorists by including them in the schedule of this law - now that power has been
extended to identifying individuals - civil liberties activists argue that this gives broader power to
executive to identify individuals who may be opposed and critical of them. Procedures under uapa
might not be sufficient to protect them in the longer run - review procedures.
43A - serving officers broad powers to arrest; convoluted language;look at 22- leeway given to govt
been used to harm civil liberty?
UAPA - other provisions- research questions

Regardless of whether or not court reviews NSA, UAPA - grounds of detention - bc there are textual
provisions such as 22(7) that give a lot of leeway to governments to legislate on this issue - broad
proposition. State public safety acts.
Pg 61-66 - miranal aparna article

Pg 67 - judicial review of Anti-terror legislation

TADA - response to insurgency in punjab, apart from providing for arrest and PD, it became
controversial because sections in TADA diluted requirement of admissibility confessions before
police officers, which made it easier for the officers to extract confessions from accused; provisions
that gave broad power of arrest, search and seizure as compared to crpc ordinary law.

The question is why has the court not observed substantive scrutiny to strike down provisions --
which might appear to be a just result before a constitutional court.

Kartar Singh - against validity of some sections of the TADA [P.69]

PUCL v. UOI
Provisions dealing w surveillance on grounds of violating 21

Naga people’s movement - challenge validity of AFSPA - gives broad protection to personnel of
armed forces in respect of facing accountability for abuse of power. Court upholds validity - same
pattern of non-interference and deference.
S.4 of AFSPA gave authorisation to personnel to use force; concern - where force used arbitrarily
there is no accountability because of the language used. Validity of s.4 was upheld - court cites larger
need of public safety. Court had an opportunity to scrutinize the case.
16.09.2020 - Socio-economic rights

22(7) has been described as the black-hole of the constitution. Ideological criticism of these
provisions - why does the constitutional text which is otherwise meant to protect liberty include
such a provision that empowers the state to take away liberty arbitrarily? How and why has the Court
upheld PD laws and ask why there is a provision of PD and it has undergone change so as to give
balance of power in favour of the state acting through legislature. NSA & UAPA - goes beyond the
3 month limit given in CrPC without any of the protections that CrPC gives.

Adjudication of Socio-Economic rights [ Judicial Engagement w Socio-economic rights]

Look at it differently from due process clause has been read and expanded in the context of
deprivation of personal liberty; literature that looks at AK Gopalan and its progeny which have
upheld PD case looks at protection of liberty in a negative sense. Go back to theoretical distinction
between rights that implicate duties of restraint on State and those which implicate duties of
facilitation and assistance on State. This segregation may not be very useful when u think about
rights that capture both elements - right to vote & education.
Conceptual distinction - procedural due process was narrowly limited to context of CSJ;
understanding of 21 to include rights of accused in a criminal trial [right to be made aware of charges;
represented by lawyer]. Many of procedural protections are linked to originalist understanding of
21. Thread we looked at - courts have been reluctant to transplant these protections in the context
of PD. In practice PD misused against political opponents.

Socio-economic rights, we’re not limiting 21 to fair trial. Study cases reading natural justice
principles into different proceedings. After emergency, Court starts undertaking the activist role,
court willing to read 21 as a basis for newer rights to be recognised - understanding of unenumerated
rights being recognised by the court.

We will be looking into the basic justifications for courts to recognise unenumerated rights into 21
[Judicial Creativity or intervention]

Conservatist Crique (of reading in newer rights into the text of the constitution) - If courts are using
their discretion to read in newer rights in a contextual manner or read existing rights in an expansive
manner like they’ve done in 21 --this process of reasoning is going beyond the judicial role and
violating the classical separation of power. Conservatives[Establishment critique of judicial
creativity] argue it is not the court’s role to read in newer rights as a response to social action
litigation, it is only the legislature acting through collective deliberation and with backing of electoral
mandate which should be advancing the understanding of rights either through legislation or
administrative orders. At best the admin branch can be implementing certain measures or enforcing
policies which might help in advancing understanding of existing rights. Classical separation of
powers view - job of legislature, executive and judiciary (decide disputes and not create newer laws).
Criticism of SAL and court’s tendency to newer rights are not restricted to older criticism about
separation of powers. Another side of the story - Even people who support judicial creativity (court
as instrument of reading in newer rights, and responding to situations involving disadvantages
domination and suffering through creative interpretation of rights) - even then there is a grave
danger. In comparison to conservatist critique to SAL and judicial creativity(which dismisses it as a
violation of classical separation of powers) there is also a progressive critique emerged after
examining evolution of SIL and the judicial reading of socio-economic rights over the last 30-40
years. HM Seervai.

Progressive Critique - Sometimes courts while promising to deliver more and more FRs end up
promising far too much, when they do deliver new rights which are not enforced by the executive
and honoured by the legislative, there comes a legitimacy gap. The idea is not that the idea of judicial
creativity is wrong, even if we can justify judicial engagement with socio-economic rights in this
expansive way, even if it is the job of courts to remedy lacuna in law, they may go too far recognising
rights which may be too hard to enforce for the executive branch of the day. In such a situation what
happens instead - courts are only holding out “hollow hope”, promising delivery of newer rights and
the executive branch is simply not up to the mark and legislature is also lackadaisical. Not only
arguments based on classical separation of power, but also criticised for going too far and promising
too much that isn’t backed up by executive action. Courts might themselves lose legitimacy in the
eyes of the public because they’re making decisions and normative claims that the executive isn’t able
to back. Courts might do more damage by intervening (unintended consequences) because they
don’t understand the nuances of the interests that are involved. Anuj Bhuwania’s book.

Taking suffering seriously - Baxi - SAL

Courts were willing to dilute the common law tradition locus standi
in case of SAL- people directly affected didn’t have to physically
come - other people could represent the injury → major justification
for SALs. Courts developed their customised method for granting
relief and collecting evidence. Specialised commissions are
appointed. Later cases where pollution and forest management have
led to continuing mandamus cases that have gone on for cases - entire
area of law is opened up, the specific remedy won’t do. Mandamus
writ becomes an open-ended remedy sought where the court keeps on
interfering. [procedural innovation] Those who couldn’t have
approached the court are now able to do it in case of violation of
rights by virtue of social action litigation via article 32 and 26
of the constitution.

What court does in responding to violation of rights - there is considerable customisation of the
procedure that is used for deciding cases ordinarily - civil suit - evidence gathering is bound by
provisions of crpc and evidence act
In case of SIL filed as writ petition you essentially have no strict adherence to the provisions of crpc
and evidence act; it’s almost as if courts not only have discretion in what kind of rights violation they
might be responding to, but courts also start to customize modifying the procedure of adjudication
they use for fact-finding in that scenario.

We will talk about courts engagement with socio economic rights in a broader sense. Let’s think
about what is the basis of the classical distinction/separation of powers criticism view [conservative
legal view] and progressive criticism [discussed above] - criticism against SIL and recognition of
socio-economic rights.

Legal conservative view - courts are going beyond their traditional role of adjudication and by
recognising newer rights; sub argument - courts don’t really have institutional mechanism or
capacity to look at the arguments of recognition of newer rights. This criticism rests on the belief
that it is actually the legislature which acts as a deliberative body which is directly accountable to
voters; and since elected representatives are devoted to the cause of representation and engagement
w their constituents they are at a better position to collect facts and bring concerns about
constituents into floor of the house and aggregate these interests to decide whether newer rights need
to be recognised. Extension of classical separation of powers view - elected lawmakers have a direct
channel of electoral accountability to voters that judges don’t have, which leads to them making
decisions in a vacuum which is removed from the democratic preferences of the majority - they’re
better equipped to perform the countermajoritarian function which is more useful for protection
of personal liberty or group rights but not to expand the meaning of rights or to read in newer rights.
[Formalist View]
Apart from lacking accountability and understanding popular impulse, they don’t have
administrative machinery for either fact finding or for responding to grievances on a day to day
fashion which may shape an informed understanding of what is required to be done. A lot of people
will argue - it is the admin branch acting through various ministries and departments that deals with
governance on a day to day basis, it should be upon them to decide what institutional solution
should be implemented to bring about or curtail rights. Courts lack democratic legitimacy [they’re
not supposed to have that; they’re to give check upon legislature and executive]; they also don’t have
institutional mechanism required in terms of administrative resources to appreciate the area of
governance; when functioning of government machinery is scrutinized - court largely relies upon
cooperation of that department to present evidence or to make representation on the issue that is
before the court - institutional limitations of the judiciary feeding into the earlier criticism that it
isn’t judiciary’s place to read in newer rights//not its job to recognise rights.

On the other hand, moving towards progressive criticism - different set of arguments
Important for courts to fill in gaps in existing legislation and respond to inertial shown by
administrative branch and situations where courts must go beyond the classical separation of powers
view engage in judicial creativity and activism [higher degree] because it may be necessary in some
situations to protect rights - specially when legislature is ignoring the rights of a certain interest group
or administrative branch in indifferent to them. Idea that job of the court is not to add to existing
functions of legislature and executive, court through SIL is addressing lacuna in what legislature and
executive is doing - court is then performing a remedial or compensatory function hence not
violating the classical power separation to correct imbalances in the functioning of executive and
legislature - courts defending the expansive reading of rights. [pragmatic response; court performing
a corrective function not a countermajoritarian one]

Criticism - judicial creativity shouldnt be simply based on personal whims and fancies of the judges
who occupy these benches, shouldn't be driven completely be lawyers and people appearing in the
court - such judicial creativity can be counterproductive harmful bc it doesn’t engage with the
empirical realities - pointing out scenarios by arguments by petitioner and decisions by judges have
largely catered to elite middle class interest and haven’t seriously engaged with the disadvantaged.
[Anuj Bhuwania - “Courting the People” - post PIL in post emergency india - looks at series of cases
of slum beautification - PIL meant to protect the disadvantaged are being used against them]Line of
literature not disputing the role and function of SIL, but pointing to adverse consequences of
judicial creativity. Progressive critique of SIL has to be viewed in this light - while you may
conceptually justify judicial intervention as a means of correcting imbalances in what the legislature
has done and not done and to respond to the executive inertia, you will require a thorough analysis
of what the court has done in recognising newer rights and granting administrative orders - might
take away from the interests of the groups in whose name the device was justified - 2nd order critique
of SIL - is not looking at the intent behind judicial creativity but evaluating it in terms of the actual
consequences it leads to. [Article called Surya Deva and Anuj Bhuwania’s book]

Defending judicial creativity and recognition of newer rights - not just are courts performing
corrective function as they do in reading of statutes [reading statutes that leave out certain operative
facts - fill in those gaps in specific cases] in that sense judicial creativity might be described as a form
of gap-filler. This account may not be sufficient when you start situating role of constitutional
courts(courts also) in light of weaknesses of democratic structure - think about how we visualise the
idea of representation? In SIL, it isn’t just about a lawyer representing the client - which is the case
in an ordinary civil/criminal case. Parties coming to the court are coming with experience,
engagement with the people who are affected -- as you keep diluting the rules of locus standi it is
likely that people who represent have no connection to the people affected/ interest group on whose
behalf they’ve filed the case. For instance, Sabrimala - the group that approached the court is not a
member of the lord ayyappa sect - dissenting judge - do you have locus standi to question the
practices of a sect you’re not a part of. Majority - issue of gender discrimination, so people outside
sect can also approach the court.

Representation reinforcement - John Hart Ely

Defending of Judicial engagement w Socio-economic rights is normal in democratic theory.
Ordinary justification - there might be minorities and disadvantaged groups who do not have
bargaining power in the ordinary electoral processes to be able to make sure their interests are
adequately/ fairly represented in the legislature. Similarly, when it comes to the structural problem
of underrepresentation or deprivation which is a question of historical justice, certain groups may
demand intervention through SIL or adjudication etc because they don't have a presence in the
bureaucracy, legislature and other arms of government to be able to advance their interests. Courts
are performing a function of representation reinforcement - minority groups who don’t have the
bargaining power to ensure the protection of their interests in govt - becomes more important for
the court to pay attention to the interests of these groups and use creative interpretation of
constitutional rights to protect their rights and reinforce their representation. John Harn Ely
[Democracy and Distrust] - offer a theory to defend court’s activism in racial discrimination cases -
he said it isn’t justified in cases of reprodcutive rights because women do not face as many barriers
[sidchu said he wasn’t aware of the intersectionality literature emerging at that time]. His arg gets
attention bc he tries to visualize the role of court not simply as performing a countermajoritarian
function [older view - protector of individual rights and liberties against arbitrary state action]
neither does it take an expansive view of court which gives court carte blanche to rule on questions
of deprivation or rights violation based on individual circumstances. He tries to create a middling
theory (representation reinforcement) to argue courts must specifically pay attention to interests of
groups who are poorly represented in electoral space and public institutions where they must exercise
stricter scrutiny over the laws violating these rights. Judicial creativity is justified depending on
identity or nature of representation of the group represented - his main idea.
Formalists will say this is differentiating between litigants based on their socio-economic profile or
based on political representation, and how can courts commit to a certain standard of scrutiny when
the levels of socio-economic or political representation profile keeps on fluctuating over time?
Others will say how will we identify minority groups which deserve deeper protection in courts?
Broadly - it’s not just minorities defined by caste or religious criteria but also interest of groups who
are in a situation of structural disadvantage [informal contract workers in the mining sector, people
trapped as bonded labourers in a feudal economy - underrepresented, inadequately represented].
Sidchu situates this theory in between formalist and progressive criticism - as a middle ground.

Surya Deva essay etc

17.09.2020
Sanjay Ruparelia - India’s New Rights Agenda: Genesis, Promises, Risks

PK Tripathi reading - Interpretive questions in AK Gopalan, and Maneka.

Formalist - skeptical about judicial recognition of newer rights and SIL [explained above]

Rajeev Dhavan. Judicial Activism literature review. Journal of India law institute.
Starts his essay
UPA-I laws trying to create socio economic rights and trying to give them teeth. What explains the
emergence of these laws? How are the rights conceived by these acts conceptualised, operationalised,
and pursued?
He’s trying to look at long term implications of codifying socio economic rights as statutory rights.
2 things relevant for our course - what is the nature of socio legal activism which has created a
foundation for recognition of newer socio economic rights. [right to health, education - first
articulated by court in its decision compelling the government to act in an indirect way by way of
administrative policies or legislation. RTI and work also.] Courts feeding into legislative efforts by
pointing out lacuna in legislations and by virtue of their decisions they’re granting new remedies to
citizens, recognising newer socio-economic rights, leading to creation of popular expectations for
these rights to be codified and expanded and delivered to a larger section of the population- larger
approach of inter branch dialogue. Socio legal activism must also be confronted by arguments about
limited capacity of judicial actors - argument by formalists - courts don’t have institutional capacity
to recognise and enforce newer socio economic rights. Even if they disregard those limitations, it
would be costly because political branches won’t be able to deliver on it - causing a legitimacy gap in
the public perception of courts, progressive judicial decisions might add to budgetary commitments
of the state thereby affecting the governance at large. Courts have delivered remedies and disrupted
the way in which service is delivered - court remedy access to health in a particular set of cases - what
happens to those who are in a similar situation or a worse off one but had no one representing them,
didn’t mobilise enough resources to come to the court - argument of selective intervention against
judicial activism.

Sidchu reads a few portions of the reading and explains. [P.573]

“In order to grasp their timing and rights-based emphasis, however, we need to trace their
longer causal genesis from the 1980s. The most important catalyst was the Supreme Court.
The Constitution distinguished political liberties and civic freedoms-regarding the freedom
 of speech and expression, of assembly, movement and association, and the right to hold
property- ensconced in Part III from the social and economic goods-covering livelihood,
pay, work, education and health-listed under the Directive Principles of State Policy in Part
IV.”

Original design Constitution draws a formal separation between civil political rights which were
given a justiciable character and socio economic rights that set out more as aspirations.

Substantive shift enabled by the theory of interrelationship of fundamental rights in Maneka

Gandhi case - “For the first three decades after Independence, the apex judiciary had largely
defended this basic distinction in a conservative manner. Following the Emergency,
however, it began to change. Substantively, the Court expanded its remit by interpreting
various socioeconomic needs as integral to Article 21 of the Constitution, which recognized
the fundamental right to life.”

What is the basis for the court to start reading the protection 21 in this expanded sense not in the
sense of protecting civil liberties against state intervention, more in terms of creating duties of
assistance and facilitation on part of the state so that resources are used to enhance material
guarantees given to citizens.

18.09.2020
Dilution of locus standi - for court to entertain writ petitions filed by citizens who are bringing cases
on behalf of other people trapped in suffering or unfreedom
Court’s ability to device procedural innovation to allow them to find facts - courts also device newer
remedies going beyond ordinary civil remedies (payment of compensation, injunctions requiring
specific performance) to address wrongs brought before them
Writ of Continuing mandamus
PIL operationalised - custodial institutions people, custodial torture, intevrnetions to protect
rickshaw pullers, environmrnt

Court hasn’t been consistent in terms of its intervention in socio-economic rights; progressive orders
sometimes and regressive(courts have pulled back and favoured the state) other times; how much
institutional capacity does it really have? - Author’s first idea

2nd - if you do document most of these intervention examples by court, most of these cases can be
seen ad hoc or standalone interventions conditional upon kind of rights violations brought before
the court so the court cannot institutionally govern a certain area and create entitlements for a large
mass of people; they can look at social rights as put forward and argued before it -- court will remedy
a particular injury. Does it lead to a larger social reform? Judicial Activism as a tool for court to
respond to interests of groups who have no economic resources, social capital or political power - in
those situations also, the court’s intervention is only ad-hoc so even if it does grant remedy, it doesn’t
solve the systemic problem of expanding access to that particular social welfare right.

Justice Muralidhar - he had intervened in several cases where patients from poorer backgrounds were
not getting proper medical care; he'd given certain orders where he'd prioritised these patients in
terms of medical treatment. Petitioners said they didn’t have adequate means, government hospitals
were also not providing priority when they needed it. Even when he did favour the parties by way of
orders, after the order, once the parties followed up with the hospitals dealing with a larger number
of patients, putting someone out of turn and prioritizing them invites criticism. Even though the
court intervenes in the best interest, it’s not possible for the court to engage with the reality of govt
hospitals in terms of management and the way in which patients are treated. Undermining its
legitimacy. Treading in dangerous ground might leading to larger instability in understanding of
adjudication by moving away from traditional role of dispute settlement and taking on the role of
legislature or executive.

3rd - the judicialization of politics gradually politicized the judiciary.

Core extract of this reading:

575 - bottom paragraph and
576

579 - electoral politics

Rise of smaller parties representing obc and sc - forced the conversation about social welfare

Imp - 582
Promises and Risks
India’s new rights agenda? Come from various reasons such as socio legal activism, economic growth
and rising expectations of people, changes in electoral politics and further fragmentation of politics
based on caste and religious background - reason why social welfare rights have gained priority.

Is statutory intervention really changing anything? [author uses various acts and examples and their
implementation plagued by larger structural problems of mismanagement and corruption]
He does concede that the rights given [RTI &RTE] were previously not statutory rights, even if they
were previously looked in a conditional manner by courts, now you have statutory rights which are
trying to give more teeth to their enforcement.
2nd achievement - Progressive critique - interventions meant to be symbolic won't really change the
nature of indian society. Too many rights promised without institutional mechanism and actual
social will.

Civil and political society - demarcation [read it]

21.09.2020

Erin Daly - Of All Members of the Human Family

The Constitution seems to have equal parts of liberal democratic foundation and a social democratic
foundation - the way commentators have written about it. Framers of the constitution, parliaments
have given more importance to the question of social democracy and have tried to leach liberal
democracy through that. [land reforms]. Farm bills - doing away with the policies of the socialist
state - protectionist of the agriculture - state must involve itself in agriculture in a particular way.
Support to agriculture required the state to interfere with landowning, farm bills would take us back
to an earlier position where you had large portions of land under one particular conglomerate -
deliberately dismantled allowing for greater flexibility in landholding - giving it to small and marginal
farmers. Big thing in the first 20 years of the indian state. Now we’re saying let’s do away with that
and let’s include and empower corporate and private investors in this. Goal is to empower the poor
- how? By having a more proactive state - that’s how the constitution envisages; DPSPs - directs the
state to be a player in the empowerment of the poor versus the belief that says that you require private
enterprises to do this; bc people aren’t going to feel empowered if the state does everything.
In the context of social rights, the tradition that follows the concept of individual rights leaves very
less scope for social rights. Criticism of the US Constitution - has v less space for social rights. Mode
of interpretation - Courts should enforce social rights or should it be left to the state while the court
only examines whether protecting social rights is encroaching upon individual rights? [Quota
systems; state can go ahead and give reservations but it shouldn’t come in conflict with individual
rights lest it will be struck down] [Custodian of INDIVIDUAL freedom(not group freedom)]
This dispute played out in the context of property in the Indian Constitution; settled by Bharti
decision where you talk about social rights being a part of individual freedoms - these are not things
that you can read as competing rights - idea of harmonious reading of the constitution. This marked
a huge shift in the way SC understood DPSPs - earlier it was seen as relatable to state but court had
nothing to do with it because it was non-enforceable. But it must be interpreted. The idea of FRs
coming in conflict w legislative reforms, DPSPs (various parts of constitution coming in conflict w
each other) - you cannot read it this way, you have to find a way to read it in a harmonious manner.
This understanding of a harmonious reading of several rights is significant to understanding of 21
particularly w reference to social rights which are now being incorporated in 21. Which were earlier
largely seen in the context of PD.

Look at all decisions in a kind of continuum to see evolution of particular rights each decision
influenced by particular ways of constitutional interpretation. Best way of understanding rights to
locate them in particular approaches. This article asks you to look at the theory around dignity rights
in the context of courts and constitution and how courts deal with this question. Look at how the
legislature, philosophers are looking at this question. But this book looks at how couts approach this
question.

Aadhar decision to make clear how the location of particular rights in the context of particular
project of the government happened.

Courts using FRs against DPSPs use by state. [Champakrajan Dorairajam]

Does privacy engage other rights, is it parasitic? [like equality] or is it about an individual, or is it an
overarching concept - what is the scope of privacy rights.

Dignity is read into 21. Are we interpreting it in terms of implicit values, interpreting it as against its
original text? Dignity as a value that influences rights or is it a right in itself. Implications of dignity
being used as an independent right or as a value that other rights can be based on. [privacy is an
important value to free speech and it shouldn’t be interfered with]

3 ideas of privacy - taking us deeper into right to privacy. Puttaswamy - privacy rights isn't new to
the indian constitution even though it wasn’t mentioned in there because it wasn’t adopted. All
judges argued - privacy rights are implicit, are the bedrock upon which other rights can be built.
Khadak singh - Subbarao J. - cannot be other rights if there is no right to privacy. [he was interpreting
it in the context of individual rights.] Now we’re doing it within dignity rights as well as individual
rights. When ur saying dignity is a more basic right and privacy is linked to that - dignity is wider
than individual which is why we should explore it. It can also be seen in the context of preventive
detention. The fact that prisoners have rights - also can be located in dignity rights. The term dignity
was associated always less with the idea of every person entitled to it and more with ranks and worth.
[more modern concept of dignity and older]

Criminal defamation case - court had collapsed the concept of dignity to the question of reputation
[dignity is non negotiable, reputation is not]. Applies to all persons, not just an elite few. 2nd -
functions as an equaliser. 3rd - it is a right asserted against state or others, enforced by state. Not only
dignity between people, transforms into right against state where state cannot interfere.

Range / scope of understanding of dignity

1st understanding of dignity - rejection of earlier understanding of it - Mexico 1917
Aaron Barak - constitutional interpretation must look into the future, cannot be about defining
rights, thus is different from interpretation of a statute [intended to set out a narrow well defined
right]. Constitution meant to be kept broad so as to allow scope for multiple other things. The
exercise of looking at dignity rights this way allows us to move into the core of rights and then look
at the various formulations.
Idea that - so many rights exist. Should we be familiar w those? No. our job is to appreciate how the
right is going to be articulated - which is being done constantly. For instance, right to equality is not
defined and the same isn’t the black letter, it is subject to interpretation and the passage of time. We
will find out whether a right exists, but not how the court reached the decision.

Latvian constitution - recognises dignity. Human dignity cannot be violated by something exclusive,
by many other things as well.

Ecuador - minimum standard of well being compatible with human dignity - social rights aspect
comes in.
Irish constitution associated dignity with the average person to promote common good, not with
nobility.
Range of understanding becomes important to talk about it in relation to inherent attribute of the
individual as a bulwark against degrading treatment as not safeguarding human freedoms alone but
enriching personal and social relationships - range of rights established. Does that make it a thinner
or thicker conception of dignity rights leading to a higher threshold when one talks about state action
and restrictions on it?

We’re looking at civil political and social rights as well. We’re moving into the arena of cultural rights
as well as group rights. We’re looking at both individual and group rights located within 21. Earlier
21 was seen as an individual rights, these associations of dignity allowed us to move 21 from being
an individual rights to seeing it also as a part of group rights. Post UDHR, what are the consequences
of treating every person not as a commodity? Exploitation located in 21. Immediately after 21, you
have rights against exploitation -- idea that state must ensure there is no exploitation. This
understanding of 21 allows you to move into those ideas of exploitation being moved into right to
life. This expansion of 21 allows you to look at 21 as connector to group rights and individual rights,
part 3 to rest of the constitution, FRs and DPSPs. Particular aspect of 21 is best understood by
looking at dignity rights.
22.09.2020

Various facets of what is held to be diversity rights - great diversity- importance is upheld
consensually but whether it is a value, right, or giving birth to multiple rights? Education, social
rights -- work, conditions to work - dignity has been associated in a central way with these rights.
ILOs declaration of dignity of labour - dignity being associated with decommodification. With
reference to labour, there was an idea of commodity which shouldn’t be bought and sold and there
is more to the employment relationship than buying and selling of labour. Commodification and
objectification of human body - trafficking, pornography, surrogacy. Dignity is then moving across
different ideas - labour, gender etc.

There is such a diversity in understanding of dignity, how have courts and constitution engaged with
the question?
The reading is grounding it in courts and constitution, while maintaining the philosophical
question. Objective of the paper isn’t to present dignity rights in a particular way. It is to say that the
idea of dignity has found resonance in so many places and so many ways. When we the articulation
of dignity rights we have an opportunity to engage with all these ways. Vasanthi wants us to link it
with Privacy - Aadhar decision: difficult to say if the judgement said that privacy is a single right, or
is it a right to many other rights, if it is part of 21, part of dignity rights, and hence a value one which
rights are built? We shall look into these ideas before we look into the idea of how the judgement
defines and sets out privacy rights. This discourse on privacy is linked to dignity which can be
understood in a very conservative manner (criminal defamation case) and a much more elaborate
manner which we’re aiming to understand here.
Read constitution in a harmonious manner. Certain ideas found in the constitution - how to link it
with other rights to better understand them.

Dignity as a value - How is dignity linked to values of the constitution

Equality can be understood, among many, with reference to dignity. Every single person deserved
recognition by law - the idea of equal protection before the law - treated in a manner (not just formal)
but substantive equality - recognition of the individual in the eyes of the law - every person having a
moral worth that deserves to be recognised. In dignity, the idea of value enriches the discourse on
equality. The foundation of political order and social peace - dignity then as a value is not just a FR
but a value on which state itself is founded. [shift in understanding of dignity - formation of society
in order to establish society. Implicit restriction upon state to treat a person w dignity - purpose of
establishing the state.
Author - state is founded on the principle of human dignity - here we’re talking about it as a value.
Not FR, which came after the state is founded. Rights don’t need to be talked about only in the
context of its enforcement by the courts. When we say something is a value, then the enforcement is
not dependent on the courts alone; this value needs to be observed by the state in the way in which
it operates. When looking at dignity in this manner, all constitutional text and provisions needs to
be interpreted against the touchstone of this value. This is the importance of dignity as a central value
[distinguished from either a right or a right for other rights.]

This moves into the idea that if there is indeed a hierarchy of rights,then the right to dignity by virtue
of it being a value, ranks at the top of such a hierarchy of constitutional fundamental rights -- in that
sense it becomes a part of the basic structure, not only looked at in part III alone.

Approach is also to be understood in reference to other social and political values

Eg - Dignity and the definition of secularism - you cannot define secularism in a way it takes away
the dignity of people [say, minority]
When we talk about dignity rights as a value and more and more people agree with the meaning - it
becomes less and less useful as a legal right. You don;t have an idea that is associated with this whereas
a court needs a certain level of particularity to be able to enforce rights. Why is the idea of value(while
it is important) not the only idea we need to engage with? In contemporary constitutionalism,
dignity is not either or - it is a value as well as a contextualised right - at once.

Dignity as understood by other countries’ constitutions

2010 Kyrgyz Constitution - refers to dignity five times -listed as a responsibility of each citizen
[similar to India's fundamental duties], right of each person [general right], in conjunction of more
specific rights.
See more examples in the reading. She doesn’t really explain it except reading it out.
Kenya - rights of individuals AND community. No group associated; with respect to community
you’re talking about dignity rights.

Dignity in the context of Social rights.

Interpretation and Enforcement

Sam Moyne - “Human rights did not start out as claims made against the state; but rather as part of
the very definition of State. Human rights defined who citizens were thereby creating the state and
circumscribing its jurisdiction” Dignity in this context.
3 streams of the various ideas of dignity rights

1- Individuation - principle of autonomy [living as one wishes]

ability to take decisions, live as one pleases. Many names this has - right to be left alone, right where
state cannot interfere - privacy also important: state may not regulate. With reference to the State,
this branch is important. The existence of political society is a precursor to State and rights and
constitution - if dignity allows you to recognize citizens as a n active member setting up the state.
Coming into effect not as a plan but as a result of deliberate action - we have come together to give
us the constitution. This idea of a Person - having the ability to create; we should not infantilize the
citizen, a person who possesses rights. Not about a single right, it is a recognition of ‘personhood’,
the idea that I can make decisions on my own.
The bar dancers case - the idea that wasn’t seen is women are capable of taking decisions on their
own and the state shouldn’t interfere with that [state must provide better support, better protection,
employment opportunities. This is the balance that recognising dignity brings in - while making
claims against state you’re seeking protection as well as respect - becomes v important when you look
at anti discrimination. Develop one’s personality as one wishes.

2 -Do we have basic rights? [living well]

To say all of us are equal without providing means and sustenance; basic building blocks where
dignified life can be lived - right to equality becomes meaningless. When we look at citizenship
claims, a person is entitled for the state to spend on these questions - minimum conditions shall be
fulfilled, the state can’t say it didn’t have money, it was found for this purpose. This is also called
development nowadays. [electricity, water, road] Concrete material rights which are to be realised,
also need to look at how they’re being realised - shouldn’t be at the cost of degradation of another
right [say, environment at the cost of road development].

3 - Intangible Value of physical and moral integrity [living without humiliation]

No matter if a person is seen as a deviant [anti-national] in public perception, the idea of human
dignity would require the state to ensure every person is entitled to a right to dignity. If we assume
this idea of dignity is inherent and not stemming from the existence of state, does it not come in
conflict with the idea of law itself? For many people, this entire idea of custodial deaths, violence -
raises fundamental question that have we recognized right of the person with reference to the most
basic one
None of these facets are in hierarchy, they’re parallel.
Aaron Barak - scope of interpretation of a right. Indian context - of right to die/euthanasia cases - are
one area where dignity rights have been invoked. Other - right to abortion. When you say every
human being is entitled to protection, what happens to the rights of the other?
If you have a competing right - unborn foetus v. right of a woman to have an abortion
Should one be privileged over the other - both are dignity rights [autonomy rights - woman]. Both
are formulations of dignity. How does one talk about regulation of these rights?
Suchita Shrivastava - right of a person with mental retardation to bear a child - court said these are
reproductive rights deserve protection under 21 - duty of the state to protect unborn child’s rights
as well - state must take precautions. [Certain legilsations to allow abortion; certain laws banning
sex-finding of child]

Right needs to be stated then proportional restrictions need to be stated. She cannot claim an
absolute right to have an abortion irrespective of all conditions v. right of a woman to take a decision
wrt terminating her preganancy. This is one of the ways of understanding various rights stemming
from dignity.

Dignity & Reputation

Dignity is your perception vis-a-vis yourself [from within rather than without]. Whether or not
dignity has been violated is a subjective experience. Dignity articulated more than privacy which is
moving along and building on dignity.

Conflict of law and dignity - restless children sitting on a park bench

Equality - treated equally and not to be treated in a humiliating manner - free from personal
humiliation - important part of anti-discrimination [not about equal treatment, but treated in a
manner that is not undignified or degrading]

Affirmative action - court held it is constitutionally required to uphold the dignity interest of the
constitution - level playing field.

Other reference to SC - aim of a national struggle for liberation to develop a new order where man
will not merely be a play thing ….[P.35]

We will look at chandrachud’s opinion in Puttaswamy 1 and 2.

Class 6.3
Puttaswamy Judgement - How it understands scope of privacy rights. Many cases that set the context
for puttaswamy judgement. The idea of privacy rights in that sense is one - do we only look at the
enumerated rights in the constitution or are there rights which need not be mentioned but are
equally important? 1950s case - when 21 doesn’t use the term due process do we borrow
jurisprudence of substantive due process or procedural due process?
Are we going to look at the text to provide us with certain understanding or the implicit text in the
constitution? General principle - there is an implicit text in the constitution which is as important as
the explicit text of the constitution.

Enumerated & unenumerated - question isn’t so much about does enumerating something make it
more important? No, even unenumerated are just as important. Are all rights equally important?
Talk about rights that aren’t just a single right. Constitutional text is intended to be broad and vague
so that multiple ideas and understanding are able to be incorporated. Should we give effect to all of
them, what happens to regulation? Way of solving this - what is the core purpose of the regulation.
Just because there is a regulation, that shouldn't be understood to be unconstitutional, we need to
look at the core purpose of the legislation, scope, is it intending to curb speech directly or indirectly
- what is the impact on the right. When you do that, find that regulation is proportional, legitimate,
you don’t need to look into the question of rights at all. Regulation can then be upheld saying there
is only an incidental infringement of other rights and that by itself shouldn't make it
unconstitutional.
Nagraj Case; Understanding of equality - various facts of it - are all of them at par w each other? We
have basic structure - cannot be done away with. conceptions of equality can be changed by
legislature - policy for reservation - these don’t go to the core of the right so as to affect basic
structure.

Understand core and penumbral rights. Penumbra is useful for us. Maneka - involved speech, right
to travel, question of dignity. Claim of dignity -- there can be no law? What is the manifestation of
dignity in this case? Physical detention - conditions of taking away life, custodial death. Very well
known is the right to dignity - notorious criminal - you do not have the right to kill that person.
Should we engage with the question of whether the State doesn’t have that right is because the state
has the right to uphold dignity - core of dignity engaged.

Other aspects of dignity are also engaged - right to travel - there will however be regulations on that
right - how reasonable and fair the regulations are? Maneka - regulation to deny her passport was not
reasonable. Then it becomes a question of proportionality of legislation.

Done so far:
1) Privacy rights to be engaged with implicitly as well as explicitly. Recognising implicit text --
doesn’t make all law unconstitutional [law will come into conflict with every right]; how do
you decide which claim is and is not to be upheld against state regulations? Where state
regulations do further rights and where it doesn’t. Affirmative action - regulations further
certain conception of equality. PD - state isn’t furthering PD.
 2) Dignity is as important as the right to life, merely because it isn’t mentioned in 21 you can’t
say dignity rights aren't engaged. Life and personal liberty cannot exist without dignity.

Puttaswamy
Questions raised:
1- privacy not mentioned explicitly, courts amending constitution through judicial interpretation?
No, they are reading in rights that are implicit.
2- is it only a common law right? Privacy origins are in common law. No it is not only a common
law right. No, a lot of jurisprudence says that - there is a common law constitution.
Constitutionalism in terms of the role of judicial review[reviewing state action] there is an element
of constitutionalism where text of the constitution- judicial interpretation expands the meaning of
the constitution and scope of rights. Understanding - something part of common law doesn’t make
it private law it is as much public law as the constitution itself.

Reference worded - idea of value and a right. When we say privacy has to be understood both in
terms of value and a right because dignity means so many things, you can’t have a single theory/idea
that informs your understanding of privacy. Need to look at it in multiple ways.

What does this mean? Look at the way the reference is framed? In a manner to look at whether
privacy is a constitutionally protected value, not just a right. This judgement linked privacy rights
with the idea of dignity[Chandrachud J.]. Three facets of dignity: socio economic rights, in terms of
preventive or punitive rights, as an intrinsic value [inform you about why you need to think about a
right in a particular way, not just use it for a particular end]
When you say dignity is implicit in anti discrimantion provisions, you’re not using dignity as a right
in itself. You’re upholding anti discrimination by state because state is trying to address the question
of dignity of the individual. Becomes a way in which it informs your understanding, rather than to
be used to reach a goal -- it is both instrumental and intrinsic - which is the idea of a value and a right.
Court looks at these 3 instances.
1. Criminal to be treated with dignity: does police recognise the fact that when it is carrying
out the obligation it has responsibility towards that person along with all citizens to not use
undue force and coercion which raises the question whether you can approach the whole
process with the semblance of dignity or not. It is not limited to the question of handcuffs,
extends to the attitude of law enforcers to the entire process of judiciary.
2. Court looks at bonded labor cases and the right to live with human dignity which derives life
from DPSPs. Privacy and dignity allow you to read things in a harmonious way[not in
conflict/opposition with each other]. Read rights together, both explicitly enumerated FRs,
explicitly unenforceable DPSP together to inform your understanding of rights. [this brings
in social rights idea]
 3. Judge uses the invocation of nagraj as an intrinsic value and as part of basic structure.
Further, court also looks at Kesavananda Bharati case which talks about various opinions in
that case which use dignity of the individual as part of preamble and hence part of the basic
structure. Invoking values of preamble they aren’t FRs, they’re values of the Constitution.
Uses the idea of dignity as an individual.
UPSC Jihad - Judge looks at the question that do we mean dignity of the individual or as that of the
community as well? when you look at that in the context of DPSPs - dignity not that of the
individual alone, can be as part of something as well. Chandrachud J. keeps coming back to this
question, coming back to locate ideas of dignity in an individual.

Uses the quote from Jeeja Ghosh: “Human Dignity is a constitutional value and a constitutional
goal.”

What are the dimensions of constitutional value of dignity? Aaron Barak:

“The constitutional value of human dignity has a central normative role. Human dignity as a
constitutional value is the factor that unites human rights into one whole. It ensures the normative
unity of human rights. This normative unity is expressed in the three ways: first, the value of human
dignity serves as a normative basis for constitutional rights set out in the constitution [keep in mind:
israeli constitution doesn’t have bill of rights - they have to use the idea of dignity to sourcen all
fundamental rights we have - so they had to overwork the concept of dignity to mean everything -
invoke all fundamental rights] ; second, it serves as an interpretative principle for determining the
scope of constitutional rights [parent & child rights, core & penumbra; question of restrictions
comes more in the context of penumbra rights and then the question of proportionality is invoked
- other dimension to question of privacy rights now is the proportionality test which is an imp test
to be used when privacy and dignity are invoked; the Aadhar case demonstrates mere fact that test is
there doesn’t mean we’ll get favourable results; Aadhar - how theory was landed, Chandrachud J’s
Dissent shows the theory] , including the right to human dignity; third, the value of human dignity
has an important role in determining the proportionality of a statute limiting a constitutional right.”

^^To sum it up, dignity is invoked in all 3 ways: 1) Value informing all rights, 2) right itself, 3) as
part of test of proportionality

Court then talks about Privacy and dignity linked

One place, it is said RTP is an element of dignity, RTP is a core of dignity. [Don’t take it literally,
these are ideas which need to be understood in an aggregated manner]
At points he makes RTP is the basis on which dignity and then rights are built, other parts it says
privacy is an aspect of dignity. Vasanthi P. asks us to understand dignity as a core right and privacy
as an intrinsic part of dignity.
Para 107
“To live is to live with dignity. The draftsmen of the Constitution defined their vision of the society
in which constitutional values would be attained by emphasising, among other freedoms, liberty and
dignity. So fundamental is dignity that it permeates the core of the rights guaranteed to the individual
by Part III. Dignity is the core which unites the fundamental rights because the fundamental rights
seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures
dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true
substance.
Privacy is a goal trying to achieve through life and liberty[they’re not ends in themselves, are being
used for something else]. This understanding is very useful as you look at various Debate around
eutahanasia cases - this concept is very well engaged in these cases. Life and liberty - certain values.
People who do not see the value or unable to take a decision wrt their lives how does one invoke the
idea of dignity? Consent is a very important manifestation of dignity - I have a right to make
decisions for myself. The choice of death I have given to myself under certain circumstances - should
that be respected or would that amount to literal interpretation of life in terms of suicide? In such
cases, court engages w - living is living w dignity when such a dignity is lost it’s almost as if life is lost.
When life in such a way is lost, you’re respecting the person by removing artificial support to life,
you’re not taking it away. This dimension of dignity has been useful in understanding questions of
life and liberty not necessarily in preventive/punitive detention.
Privacy ensures the fulfilment of dignity and is a core value which the protection of life and liberty
is intended to achieve.”

In his process of justifying dignity as part of the constitution, he invokes dignity in the basic structure
- that preamble also engaged with dignity. Core question - why are we doing dignity in the context
of social rights? Attorney General - [privacy case comes in the context of Aadhar; in the context of
whether the particular measure is infringing individual’s privacy right; whether the act is
unconstitutional in the way it was worded etc], AG argued [they were looking at it as an elite
concept, a privilege] that there are a privileged few talking about liberty, but vast masses that are
happy to give up their liberty if state is going to give them some benefits - liberty should be forsaken
in the interest of welfare entitlements provided by the State. Our constitution places the individual
at the forefront of its focus, guaranteeing civil and political rights in part III and embodying an
aspiration for achieving socio-economic rights in part IV. The refrain that the poor need no civil and
political rights and are concerned only with economic well-being has been utilized throughout
history to wreak the most egregious violations of human rights. The theory of subservience of socio-
economic rights to civil political rights has been rejected by this court.
Another connection that the court makes referring to Amartya Sen - Bengal Famine was made viable
through not only democracy’s failure but severe restrictions on reporting and criticisms imposed on
indian media and the voluntary practice of ‘silence’ that the british press chose to follow. Media’s
lack contributes to diminishing democracy.

Liberty and freedom are values intrinsic to constitutional order but they also have an instrumental
value in creating conditions in which socio-economic rights can be achieved.

Conclusion he sets out - Essential Nature of Privacy [para 168]

The idea of ‘zone of privacy’: linked to right of being let alone, right to take decisions for yourself,
fact of you being an individual who can make decisions which are not in conformity with what
others want you to do - individuation principle - also the principle of heterogeneity [being different,
unique - appreciate the difference]

Privacy has intrinsic and instrumental value, like dignity. Privacy -what happens to laws of PD?
Privacy rights in that sense are smaller than dignity. In the context of PD, privacy doesn’t get invoked
that much. Posner - Privacy is a terrorist’s best friend. Even if they are invoked, privacy concerns
have been raised as a bogey against individual liberty by saying that we can’t do law enforcement like
we want to if you insist on privacy. Privacy is an intrinsic component [not an opposing component]
you can’t raise it to say that if you’re insisting on privacy, we can’t do law enforcement - it’s not an
absolute right [unlike dignity]. Privacy rights intervenes to protect legitimate state interest, a robust
regime must be put in place by the state to ensure fulfillment of a three fold test. Law - legitimate -
aim- proportionality.

Privacy as core of dignity, normative and descriptive function of it. 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 interest which lie at the foundation
of ordered liberty.

Class 6.4
Justice K.S.Puttaswamy(Retd) vs Union Of India [Puttaswamy II]

How does it look at socio economic rights within dignity and privacy
How several rights unenumerated rights, does the question of balancing rights [which right prevails
over the other] is addressed. Should we understand socio economic as part of dignity rights? None
of the earlier cases were engaging with question of privacy and dignity: discussing only life & liberty,
Pramati [RTE & Dignity discussed]. Earlier decisions on reading socio economic rights in 21 was
never really engaged with a combination of socio economic w civil political rights. This aspect needs
to be discussed. In basic structure, most of the rights, question is of one particular right coming into
conflict with another person’s right - which are usually different rights. RTE - 19 argument was
there: right to carry on an occupation and whether running educational institutions can be seen as
an occupation. Art. 30’s question was directly engaged. Their freedom and autonomy to run
institutions was coming in conflict with people seeking education. Is their horizontality - why are
private actors being asked to be amenable to FRs?
Whether State can violate these rights, more importantly 23, 24 where horizontality is also v
important. these are questions of specific rights of people v. state obligations. Same person making
same rights to be claimed - this question was never engaged with. Aadhar - my right to privacy as well
as my right to food and other benefits against the state. This question of rights of a person pitted
against state has been changed into rights of a person as against themselves - which is the most unique
arch of the [majority] opinion in Aadhar.
1- Majority opinion quoting profusely from another opinion which led to dissenting opinion.
Majority opinion using several cases which have been decided by SC [right to life, privacy, socio-
economic rights]. In many ways, the majority opinion becomes a reader for SC jurisprudence on a
whole range of questions on balancing test, proportionality, socio economic rights, privacy. Large
chunks of the privacy judgement in this judgement as well, very uniquely it was about evolved
understanding of socio economic rights not to be pitted against political civic rights. Not about two
competing individuals, there is reference to criminal defamation case, but this case is unique because
it represented same individual claiming 2 sets of rights, and the arguments made were about how
indivisible these rights are, you can’t say that okay there is right to privacy and food but you can’t
choose both in the same way [not entitled to both], you have to trade in one for another. Unique
abt aadhar litigation - it was vertical application of FR, the horizontality was in terms of how state
shouldnt part w its powers, private parties have access to personal data - what is the question of abuse
of the thing - that was not the core of the argument as much as the state’s responsibility in this case
and how does the state discharge it.

How Majority opinion reaches this conclusion

Tone and tenor set by beginning of judgement, beginning w significance of rights, it’s like that rights
part of the discourse will be given larger weightage than the state’s justification. In the majority
opinion, the controversy presented in a way that what’s being done is unique, instead of focussing
on why the state needs to identify its citizens, it’s about how unique the program is and recognising
the distinctness of individuals.

Contentions made before the court -

Aadhar is not only about exercise of personal liberty, closely linked to personal life. Whatever SC
might say, holding a bank account, taking exams - everywhere Aadhar is required [even though it is
not mandatory]. Notwithstanding how the court made a very fine distinction about where Aadhar
is required and where it is not, we know how it has panned out, has not been to say Aadhaar is not
being made compulsory.

1 - Aadhar is being made compulsory - The entire duplicity of the way in which State made its
argument, brought on my people working ont his issue. There was no legislation to start with, [Look
at the idea of substantive and procedural due process,in the way scheme unfolded itself was
problematic - no scheme, no legislation, was said to be not compulsory, not compulsory for benefits,
that should have been reason enough to strike it down]. Compulsory for day to day activities - bank
account, cell phone, board exams, having PAN, holding mutual funds, securing admissions to
school, the citizen has no option but to obtain Aadhar. Compelling the citizen to part with biometric
information violates individual autonomy and dignity. This claim led to - should we determine
whether privacy is a FR or not [which Puttaswamy I deals w]

2- The Constitution itself requires limited governance and upholds sovereignty of the People,
meaning the state shouldn’t be in a position where it can track and identify its citizens for whatever
purposes. It’s an inversion of accountability and leads to a totalitarian State. The ideas of the citizen
creates the State and it is the State that should be accountable to its citizens and Aadhar inverts this
-- citizens are now accountable to the State, have to prove and authenticate themselves to the State -
this contention goes to the heart of understanding the Constitution

3- Several people losing entitlements - petitioner brought to the court several instances. For eg:
People losing out on food ration, say because of biometric mismatch, so they get excluded from
various welfare schemes. Project is not an ‘identity project’ but an ‘identification exercise’. Unless
the biometric works, the individual doesn’t exist in flesh and blood for the state. Individual is
reduced to a number, and his essence erased. [Para 61 to 67]
An art. 14 challenge was made, saying that the object to identification of individuals is illegal. There
was a 14,19,21 challenge - saying that by mandating identification by only one highly intrusive mode
the state is violating 14,19,21. [asks question whether there are alternatives in the way govt schemes
can be rolled out and whether the court is examining those alternatives which is required to be done
in any govt proportional exercise of power. ]

Our focus has been to understand how this judgement understands socio economic rights. The
court addresses this by saying:

“When we read socio-economic rights into human dignity, the community approach also assumes
importance along with an individualistic approach to human dignity.[Note: when they read SE
rights, bigger question that SE rights aren’t seen as individual rights, talking about community -
court asks the question wrt the dignity of the community - not everyone, particular communities -
the idea of community approach is to look at the entire population and measure up these things
whether somebody might benefit from these things, rather than look at what are disadvantages that
different groups are facing while implementing of a particular scheme. Focussing on common good
- notwithstanding the harm - you’ll always find public good. Court invokes the idea of individual
human dignity with community approach ] It has now been well recognised that at its core, human
dignity contains three elements, namely, intrinsic value, autonomy and community value. These are
known as core values of human dignity. These three elements can assist in structuring legal reasoning
and justifying judicial choices in ‘hard cases’. It has to be borne in mind that human dignity is a
constitutional principle[in addition to constitutional value, talks about three elements including
community value [which in se rights is different, different people having different entitlements:
affirmative action, RTE, reasonable accommodation, State investment, rolling out of accessibility
schemes - differently for different people and sections, to assume that it’s the same right that
everyone has in that sense flattens out the right to the detriment of the most vulnerable - Idea of
dignity as a communitarian value], rather than free standing fundamental rights.” [Para 116]

Idea of dignity as a communitarian value

What dignity rights bring in is when you talk about several rights part of single right. Can you say
every right is equally important? How do you talk about state with respect to FR? The idea of
dignity, core and penumbra brings in the idea of measuring proportionality -- how much of the right
can be legitimately curtailed while leaving a substantial aspect of the right intact -- what measures
state is using to restrict that? Different tests were used. Major criticism of this case has come in the
way in which it has invoked and used the proportionality test.
The test [para 120] - The proportionality test which is stated in the aforesaid judgment, accepting
Justice Barak’s conceptualisation, essentially takes the version which is used by the German Federal
Constitutional Court and is also accepted by most theorists of proportionality. According to this
test, a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must,
secondly, be a suitable means of furthering this goal (suitability or rational connection stage -
reasonable nexus); thirdly, there must not be any less restrictive but equally effective alternative
(necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-
holder (balancing stage).
It must examine alternatives, and the impact of the particular measure on fundamental rights. How
is this a balancing test? Court is balancing not the restrictions and right, but right v. right [court had
already done this in the criminal defamation case] not examining the extent to which restriction is
taking away the right. Criticism of this test as used by court - 3rd and 4th aspect which are crucial
aspects of proportionality.
Court uses the german test - para 121 - One remarkable feature of the German test is that it tends to
push most of the important issues into the last stage, viz., the balancing stage. At the legitimate goal
stage, any goal that is legitimate will be accepted. At the suitability stage, even a marginal
contribution to the achievement of the goal will suffice. At the necessity stage, it is very rare for a
policy to fail because less restrictive alternatives normally come with some disadvantages and cannot,
therefore, be considered equally effective. Thus, the balancing stage dominates the legal analysis and
is usually determinative of the outcome.

Ultimately, the Court has used this test and is saying that it will draw bright red lines not clear how
lines have been drawn. Tends to push to the last stage instead of talking about it being 4 stage test; it
is a single stage test - instead of reaching this stage right in the beginning, if you go through the 4
stages. Bar of legitimate goal if you keep as any goal - low threshold for legitimacy -this was fleshed
out in the Naz case - asking state to demonstrate what is its interest in criminalizing homosexuality
if there is no legtiimate interest then irrespective of what else the law does, just on the legitimacy of
the goal of the legislation it may be struck down. If you keep the threshold low, any goal will be
legitimate. Art 14 and test - rationale [the classification must have link w object of the act]. Naz and
anuj garg - classification bw men and women that is rational, how is the classification serving the
object,, is it the best way of serving that object? Court found that it didn’t serve that object. Push
through all of this - even at the necessary stages it is rare of a policy to fall because less restrictive
alternatives normally come with some disadvantages thus cannot be considered equally effective so
the balancing stage dominates legal analysis and is usually determinative of the outcome.

David Bilchitz
What is the test to be formulated
Relies on Chandrachud J. - uses legitimate state interest as opposed to compelling state interest

[Para 124] We may point out that whereas Chandrachud, J. has formulated the test of ‘legitimate
state interest’, other two of the Judges, namely, Chelameswar and Sapre, JJ. have used the test of
‘compelling state interest’ and not ‘legitimate state interest’. On the other hand, S.K. Kaul, J. has held
that the test to be applied is whether the law satisfies ‘public interest’. Nariman, J., on the other hand,
pointed out that the Right to Information Act, 2005 has provided for personal information being
disclosed to third parties subject to ‘larger public interest’ being satisfied. If this test is applied, the
result is that one would be entitled to invoke ‘large public interest’ in lieu of ‘legitimate state aim’ or
‘legitimate state interest’, as a permissible restriction on a claim to privacy of an individual – a more
lenient test. However, since the judgment of Chandrachud, J. is on behalf of himself and three other
Judges and S.K. Kaul, J. has also virtually adopted the same test, we can safely adopt the test of
‘legitimate state interest’ as the majority opinion, instead of applying the test of ‘compelling state
interest’.
2 options - legitimate public interest [narrower test]

[Para 123] First, a range of possible alternatives to the measure employed by the Government must
be identified. Secondly, the effectiveness of these measures must be determined individually; the test
here is not whether each respective measure realises the governmental objective to the same extent,
but rather whether it realises it in a ‘real and substantial manner’. Thirdly, the impact of the
respective measures on the right at stake must be determined. Finally, an overall judgment must be
made as to whether in light of the findings of the previous steps, there exists an alternative which is
preferable; and this judgment will go beyond the strict means- ends assessment favoured by Grimm
and the German version of the proportionality test; it will also require a form of balancing to be
carried out at the necessity stage.

It appears as if the proportionality test is going to be applied.

Court - first two limbs of PT are brushed through. Court looks at impact - and says most of it is
answered in 1 and 2. The manner in which malpractices have happened it leaves us to hold that apart
from the system of unique identity - there is no alternative measure [ you haven’t even examined
such a measure]. The petitioners haven’t been able to produce. [The petitioners aren’t supposed to.
State is.]
Balancing test - even in narrower german test is the most crucial part - balance restriction w right.
Court says what needs to be balanced is two competing fundamental rights [ right to privacy in one
hand & right to food shelter on another] - both based and founded in the idea of human dignity.
Idea of indivisibility would mean you can't’ talk about them coming in conflict; they're essentially
the same rights. When a person seeks the benefit of a welfare scheme that she is entitled to as a part
of life with dignity, whether her sacrifice of right to privacy, so invasive that it creates imbalance?
Court then moves into as part of balancing legitimate interest of privacy test - what is the context of
privacy claim?

292) Therefore, when a claim of privacy seeks inclusion in Article 21 of the Constitution of India,
the Court needs to apply the reasonable expectation of privacy test. It should, inter alia, see:

(i) What is the context in which a privacy claim is set up?

(ii) Does the claim relate to private or family life, or a confidential relationship?

(iii) Is the claim a serious one or is it trivial?

(iv) Is the disclosure likely to result in any serious or significant injury and the nature and extent of
disclosure? [even in this limited understanding of expectation of privacy which isn’t the appropriate
test to be used for balancing where you’re supposed to examine the restriction and the impact on the
right -- that is simply not done. ]

(v) Is disclosure related to personal and sensitive information of an identified person?

(vi) Does disclosure relate to information already disclosed publicly? If so, its implication?

Court says aadhar requires minimum information, hence required. 2nd facet of balancing - Let us
advert to the second facet of balancing, namely, balancing of two fundamental rights. As already
pointed out above, the Aadhaar Act truly seeks to secure to the poor and deprived persons an
opportunity to live their life and exercise their liberty. By ensuring targeted delivery through digital
identification, it not only provides them a nationally recognized identity but also attempts to ensure
the delivery of benefits, service and subsidies with the aid of public exchequer/Consolidated Fund
of India.

How is delivery of benefit something that poor is invested in; it’s something state should invest in;
why does it become the right of the poor-- my right to ration is dependent on the fact that someone
else doesn’t steal it [which is also my right]

Judgement uses MGNREGA etc to show instances of state substantiating socio economic rights and
against larger public interest [read in public interest 19 into 21]
As against the above larger public interest, the invasion into the privacy rights of these beneficiaries
is minimal. By no means it can be said that it has a disproportionate effect on the right holder. [Para

308]

Court refers to Subramaniam swamy the need to strike balance between two rights… refer to picture

Pitting idea of dignity of individual against dignity of community.

[THIS IS HOW COURT CONCLUDES THIS JUDGMENT]

When it comes to dignity as a community value, it emphasises the role of the community in
establishing collective goals and restrictions on individual freedoms and rights on behalf of a certain
idea of a good life. Finds the Aadhar act valid.
Module 6 - last class
Module 7 - Secularism and Freedom of Religion

Class 7.1

We will be looking at the language of article 25 and 26 mainly and 27, 28 also dealing with the idea
of freedom of religion.
We’ll also engage with the question of what does one mean by the idea of ‘secularism’? Distinction
between different sorts of authority - is the way how sociologists see it - distinction between religious
authority grounded in traditional social structures, and bureaucratic authority wedded to the
modern welfare state. Discussion revolves around this sharp distinction between Authority exercised
by customary structures [where religion is an important marker of group identity which is often
juxtaposed or compared w the idea of the authority of the state identified w executive branch]

Indian notion of Secularism - Rajeev Bhargava - Distinctiveness of Indian Secularism

Situating the idea of secularism in India in a comparative context - Ratna Kapoor

3rd thread - look at judgements dealing with interpretation of religious freedom u/a 25 and 26 and
what should the understanding of such a freedom be as we move forward. When we looked at anti
discrimination provisions, some provisions had individualised nature and were trying to protect
individuals against discrimnation in social structures. Remedies that reflect a deep history of activism
- not only in terms of preventing or curtailing caste based discrimnation but setting out normative
policies of the post independence state - one of those is Article 25(2)(b) which looks at the question
of entry to hindu temples and why customary restrictions placed on entry should now be removed.

Positive and Negative distinction

Idea of Law and idea of religion - present a simple analytical distinction which we’ve spoken about
in earlier modules [the way in which rights are framed]. We talked about rights having a negative
character - rights that place a duty of restraint upon the state, rights that bear positive character -
exercise of rights entails facilitation, assistance, infrastructure provision duties on the State.
However, if you think about actual content and enforcement of most of the FRs in the
contemporary context, the distinction might not be very useful - some rights are both positive and
negative. We’ll begin with the foundational question of whether freedom of religion flowing from
language of 25 and in a limited way 26 should be characterized as a negative right[duties of restraint]
or as positive right[requires state to recognise existence of religious structures and then to provide
minimum conditions to allow religions to flourish]. The answer given by most books - freedom of
religion goes past this distinction. There are both elements of negative [idea of freedom to worship
without state intervention], positive obligation [state undertakes duty of maintaining places of
worship, providing for financial or administrative resources through which religious beliefs can be
pursued]. We’ve looked at enumerated rights under 19 - and asked whether some of those rights such
as speech, assembly, and association have a civil political character ;rights such as movement
residence and economic freedoms broadly deal with socio-economic rights. Such a distinction or
bifurcation is also not consistent. Each of these rights entail both negative and positive character.

Conceptual foundations of the idea of ‘rights’ - Right bearer and enforcer [against whom rights may
be enforced]

In module 4, we saw how certain rights are to be enforced by individuals against state action [which
is the normal domain of public law]; or by group rights against state power [hence, individuals and
groups are the right bearers against state power].

However, in the context of religious freedom, there is a possibility of other dynamics of right bearer
and enforcer. It is not just the assertion of religious freedom by individuals or groups against the state
power which is important but it can also be, for instance, the exercise of religious freedom against
intervention by other religions. Apart from that, there can also be complex situations where the idea
of personal liberty may be undermined on account of existing religious practices. We’ve seen 4
different patterns here. [individual, group, other religions, liberty] Protection against intervention
by other religions - Protections given not just against state intervention but against actions of other
religious groups that might be antithetical to your religious freedom. Situations where the cause of
personal liberty or anti discrimination may be undermined on account of existing religious practices,
wherein the courts or the state may need to intervene in religious practices through executive or
legislative action[state] to protect liberty and advance the goals of anti discrimination -- closer to the
idea we looked at in anti discrimination where we saw customary/religous practices which entail
discrimination[either on caste or gender markers etc] and to what extent can state use its power
through legislative or executive action and through judicial intervention to protect personal liberty
and to advance the goal of equality by seeking to interfere with the existing religious practices.

Prof. Chauhan then reads and explains the bare text of Article 25 and 26.

Article 25 (1) Subject to public order, morality and health and to the other provisions of this Part,
all persons are equally entitled to freedom of conscience and the right freely to profess, practise and
propagate religion.

“Subject to public order, morality, and health” - 3 grounds/ limitations placed by 25(1) itself. Get
into the question of whether freedom is constrained by the set of restrictions placed. Textual strategy
used here is different than in Article 19 where freedom themselves are enumerated sequentially
(a,b,c..) corresponding ground for placing reasonable restrictions. However, in 25, rather than
enumerating a right and creating another clause for placing restrictions, here restrictions are laid
down first and the substantive right flows in the latter part. Once we do the major cases on the
interpretation of 25 it will become clear as to what has been the judicial interpretation of this
particular provision. But, the grounds for placing restrictions here are open-ended as opposed to the
reasonable restrictions given under 19(2) freedom of speech - mentioned as 8 grounds which are
supposed to be self contained grounds - there is further interpretative debate about how far the state
can go in placing these restrictions on grounds other than 19(2). Here, grounds are open textured.
Public order and morality is common. However, Health is unique but people might argue it is a part
of other considerations such as public order but for all practical reasons it is mentioned separately
here. “And to the other provisions of this Part” - textually, can we say that religious freedom is
subordinated to other fundamental rights in Part III? We’ll look at it in subsequent classes.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law— (a) regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice; (b) providing for social welfare and reform
or the throwing open of Hindu religious institutions of a public character to all classes and sections
of Hindus.

We have discussed this while looking at authorization of temple entry act in Madras and also in
Bombay in the cases Sri Venkataramana Devaruand v. Mysore 1958 SC and Sastri
Yagnapurushadji v. Muldas Brudardas Vaishya. Think about language of 25(2)(a) -- and the way
in which courts have drawn a distinction between religious practices that are essential to the
sustenance and beliefs of that group and the demarcation that courts often draw between essential
religious practices and secular practices which are connected to the same religious group. We’ll look
at the Shirur mutt case for this. This case inaugurates the distinction between what courts have
determined to be essential part of religious practice and what can be demarcated as a secular
dimension of their practices where state interference can be justified. Reasons for introducing such
a distinction and problems and pitfalls of this approach and look at the debate which calls for doing
away with this distinction. 25(2) empowering the state to interfere with religious freedom on
grounds that flow from both these possibilities. The possibility of regulating economic, financial,
political or other secular activity associated with religious practice and providing laws to ensure
access to all classes and sections of Hindus.

There are some aspirations that aren’t discussed in cases. He reads out and explains the explanations.
For the purpose of temple entry and in the area of family law by extension - sikhs jains and buddhists
are included in Hindus for the purposes of throwing open hindu places of worship to everyone.
Because of caste-based discrimination. There are allied questions one can get into when one reads
the explanations.

Article 26 -- Subject to public order, morality and health,[doesn’t mention subject to ‘other
provisions’ as art 25(1) does] every religious denomination or any section thereof shall have the right
[Textually 25(1) appears to be the main provision talking about all persons including citizens and
non citizens but 26 is about collective entities especially those recognised as religious denomination
or sections thereof]

So there is clearly a distinction between rights being made available to individuals under Art 25(1)
and to concretely identifiable groups and religious denominations under Art 26.

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion; [Read alongside 25(1), wherein courts have to
decide on the extent to which state can interfere in the management of affairs of a religion]

(c) to own and acquire movable and immovable property; and [mainly created to allow religious
trusts to acquire physical property]

(d) to administer such property in accordance with law

Since 26 has to be read with 25(1) we will get into the interpretive debate about whether the
restrictions which are contemplated in art 25(2) since they’re placed on 25(1) can also be extended
to the rights in 26. We’ll discuss this in the Shiroor Mutt case -- how to read rights in 25 and 26 and
the restrictions in 25 whether it applies to 26.

He reads and explains Art 27 and 28 which aren’t really important when it comes to case laws but
have some bearing over the right to religious freedom.

Article 27- It doesn’t prohibit state spending for religious purposes. There are many examples of
taxation funds being used to support religious endowments. Many temples where priests are paid
out of state funds. Some tax revenue is spent on maintenance of temples but language of 27 does not
prohibit spending of state for religious purposes but prohibits payment of any tax, the proceeds of
which are specifically appropriated in payment of expenses for the promotion or maintenance of any
particular religion or religious denomination. Which means that the state can't justify a particular
tax levy or the use of tax levy specifically for a religious[group or denomination] purpose however
no bar on using general funds made available through tax revenue for the purpose of supporting
religious activities. [He says many people have misconception wrt this]

‘Specifically appropriated’ SC order given in connection with Haj subsidy to support those wanting
to make pilgrimage to Mecca [subsidy given in air india flight]. Interpretation of 27 was discussed.
Argued - subsidy was draining expenses of state and violating the idea of secularism. We will look at
the order to understand what the court had to say while interpreting Art. 27.
He reads out Art. 28 which deals with prohibition of religious instructions in public schools [funded
by state funds]. There are exceptions to this -- 28(2) when public school is established under
endowment or trust and where such instructions are necessary [Sanatan Dharm Study, Islamic
Faith] There are govt run schools which lay down religious instructions in their endowment or trust.
Clause 2 is read in conjunction 29 because it deals with religious minorities' right to preserve their
language and culture. More importantly, the article 30 gives the right to minorities to establish and
administer the educational institution of their choice. In institutions with minority character
religious instructions may be allowed with some regulation.

28(3) - to protect minors. Concern that imposition shouldn’t happen. Shouldn’t be forced to
undergo such instructions without guardian’s consent.

Class 7.2

[Idea of Secularism per se, how has it been framed in mainstream political theory, and how to look
at it within the indian constitution] Often we hear ‘no concern secularism’ which has more to do
with western political theory, insists on a strong wall of separation between state power and religious
authority. On the other hand, we hear of ‘equal respect secularism’ which is often the goal for the
framers of the indian constitution in the sense that the importance of religion in public life wasn’t
denied and the state was supposed to respond equally and equitably to the needs of different
religions. Both these ideas appear to be framing the debate. Read Rajeev Bhargava - he says it’s not
enough to talk about the distinction between these two theories to make sense of provisions of
secularism in the Indian context, the drafting of provisions [25-30] reflect a unique compromise
which was arrived at for the purpose of working the constitutional order. His argument - in India,
it’s not just the equal respect secularism which explains the interpretation of these provisions, but
there are also constraints that the majority took upon itself which have given rights to a distinctive
notion of secularism which needs to be nurtured and expanded. He’s going beyond the older binary
found in the scholarship on secularism. Strong version of secularism - no concern state should have
with the expression of religion, and should discourage expression of differences in public life. ERS -
State must acknowledge the importance of religiosity in public life and must aim to treat them all
equally when it comes to interaction with the law.

Conceptual understanding of secularism and variants of it and how to locate ideas of secularism in
the constitution and also in the current political discourse. Broadly, the idea can be conveyed by
beginning with a dyad - models of secularism in academic literature - formulation identified very
closely by most western states [some major european powers] - ‘no concern secularism’ [common
expression - strong wall of separation between state and organized religion]. This idea is contrasted
by ‘equal respect secularism’ [many commentators identify it as something reflecting in the Indian
Constitution] not a separation wall, state must take upon the duty of equal treatment and non
partisanship when it interacts with different religions in the public sphere. [these two ideas can be
seen in the literature of secularism]

The sharp distinction between the two ideas leads to the debate being framed in a binary. What
should be the attitude of state authorities in a country where they want to maintain a strong wall of
separation - does it mean all forms of religious belief, attire or differences must be discouraged, when
it comes to public institutions? France - on account of increased migration in the last couple of
decades, there’s a much higher proportion of muslims living there. Immigration norms were
liberalised and labour markets evolved - immgation happened from all over the world. Dispute in
the french constitution - what should be done about muslim women wearing the traditional attire
[hijab etc associated w islam]. 15 years - debate arose whether muslim women in public institutions
should be allowed to wear the head scarf - it got extended to other spheres - whether such head scarf
should be allowed at all since it is a sign of repression or control over women. That point was negated
- it’s not simply a question of reflecting gender subordination, the wearing of headscarf is a matter
of personal choice, many people accustomed to it as part of their religious belief or attire state is then
interfering with their religious freedom by placing restrictions on the act of wearing a headscarf in
public. Triggered similar debated in other european countries which had seen a substantial increase
in muslim population due to immigration. Last 5 years, situation has changed [conflict in syria, war
in afghanistan etc] there are large number of refugees finding their way to european countries.there
is a larger debate about clash of cultures, the seemingly individualistic culture of western europe are
coming into contact with group oriented cultures of middle east and north africa. Many people
entering [as immigrants and refugees] will have a difficult time adjusting to the norms of western
european society. To show that those who argue for strong wall of separation - might justify
restrictions on personal attire - even though they might be attached to religious belief - held out as
an example of ‘no concern secularism’, or what the french call Laicite [strong notion of secularism
argued in 19th century, trying to throw off influence of catholic church]. In comparison, in India,
do we need such a strong notion of separation, where the separation is not simply about who
occupies power but it also leads to laws and policies that may directly affect the expression of our
religious beliefs and differences. To that extent, even the colonial state did not take such a strong
view, even the colonial model of secularism broadly insisted that there would be a separation in the
areas where colonial state would legislate -- revenue matters, property matters, tax matters, a little bit
criminal law, but when it comes to personal laws [family law and religious beliefs], even the colonial
power tried to separate itself from that. Legislations by EIC [gentoo code, mohammedan law] -
trying to codify existing traditional sources - creating authoritative translations of these traditional
sources they were trying to create guidance for courts to decide cases. You can see a pattern here -
colonial law - concerning interaction between state and citizens in the public law
domain[taxation,trade,government]. whereas religious beliefs’ domain were left to customary
practices and codified norms. Serious legal historians don’t agree with the sharp distinction between
the public realm of colonial law and the private realm of customary traditional practices -- they argue
there are several areas where these two overlap. Many places where colonial rule used its
administrative power to interfere with religious practices from time to time especially when they
were discriminatory [Sati, allow widow remarriage, restriction on child marriage]. Framers of the
indian constitution were thinking like this while conceptualising secularism - for them the western
concept of secularism, which insists a strong separation between religious and political authority,
was not something that they could’ve easily internalised. They did insist that the constitution and
election of govt should be far removed from religious influence but when it came to the state’s role
in regulating religion or intervening with religious practices, they took a different approach, they
adopted an approach that reflects the idea that states must encourage the growth of different
religions and allow them to flourish. When it came to the question of conflict, the state must have
an even handed view and react with impartiality. [idea of equal respect secularism - the idea is invoke
“sarvadhan sambhav”] that idea however has been put at considerable risk since the late 1980s with
organisation of ram janmabhoomi movement and the subsequent mobilisation for the demolition
of a mosque and the creation of a temple. [he says we won’t get into the legal nuances of the Babri
Masjid case] The mobilisation around the demolition led to the growth in the electoral base of the
current ruling party amongst other things.

Coming back to philosophical bases - framing of the debate through the distinction.

Gary Jeffery Jacobson - compared models of secularism in India w Israel and US in his comparative
study - ‘Veil of Law - Secularism in a comparative constitutional context’ he looks at major cases - he
says the approaches themselves reflect different orientations when you compare these three
countries. [He discusses three notions of secularism as approaches taken by 3 countries]

Accommodative notion of Secularism

He describes the Indian Model as accommodative [2003, so kinda outdated, retrospect on case laws
and interpretation and political discourse from 50-90s ]. In terms of judicial interpretation, he
describes indian model as accommodative. Not just the state’s allowing religious expression in public
or accommodating religious beliefs in public activities, but the state also tries to create a culture
where religious groups themselves try to accommodate differences vis-a-vis themselves. Not just the
idea that religious freedom has to be conceptualised only from the perspective of the individual or
the group seeking protection against the state [traditional conception of negative rights] but the
dimension of state managing conflicts between religious groups [inter-religion, denomination].
Coming closer to the idea of anti discrimination, you find the idea that the state must also interfere
with religion to protect personal liberty and advance the goal of equality within a religion. Can be
done for several reasons - to protect persons disadvantaged within a religious group, to question
customary practice found to be in contrary to established constitutional principles -- what do we do
with personal law that tramples upon liberty or norms like gender justice. Jacob - describes it as
accommodative. This takes us to equal respect. He uses words like ‘ameolerative secularism’,
‘assimilative approaches’ .

Amelioration - with the passage of time, existing differences become less relevant. Differences
[cultural or otherwise] do not become suppressed or denied neither are they encouraged. According
to Jacobson, the american approach to secularism in the latter half of 20th century, follows an
approach of amelioration. Earlier it was a christian majority country with the protestant faith, but
with increasing immigrants, specially after the 1964 immigration act which liberalised rules for
immigration from all over the world, america has become an multi-faith country with people of
different faiths coming into the country in much larger numbers. [catholics, post 2nd world war,
post 60s from all over the world] Ordinarily you had an ethnocentric notion of secularism but over
time differences became much less important than the civic or common national identity ultimately
ties of civil solidarity rather than religious identity. He says in this manner american model is
different from the Indian one because even though India has tried to promote civic solidarity and
nationalism, but on the other hand it makes serious accommodations for different kinds of religious
groups, even within the design of its constitution. Whereas, the american constitution doesn’t have
so many accommodations, it does try to promote a common idea of nationality -- the objective of
which is that the importance of religious differences will become less relevant in public life.

Assimilative approach - religious minorities are subtly and directly encouraged to take on practices
to bring their culture closer to that of the dominant religion. [Eg - Jewish Faith in Israel - he argues
how many of the norms of citizenship created, criteria of it incentivizes migrants to choose judaism,
and even for those who don’t choose it, there is enough in israeli public law which emphasises the
common jewish identity rather than acknoweldging respect for different religions which are
prevalent there [islam, christianity]. He falls short of calling Israel a theocracy or a country tending
towards religious nationalism because according to him there are still norms in the legal system trying
to uphold secularism but it contends with ethnonationalist idea of creating a common jewish
national state.

This is how he distinguishes between three countries - The 3 approaches discussed above.

Given the electoral consolidation of Hindu nationalism since the 1990s, social and political
commentators have laid stress on the ideal of religious tolerance as one of the essential attributes of
liberal constitutionalism. Others argue that the public expression of religious beliefs should not be
encumbered by the State, since their suppression would weaken the legitimacy to govern a multi-
religious country like India. It must be kept in mind that some religious practices can come into
conflict with other rights enumerated in Part III. The early thrust of the Indian Supreme Court was
to subordinate the freedom of religion to other constitutional provisions such as those directed
against discrimination. This is evident from decisions that upheld statutes which created remedies
against customary restrictions on access to places of worship. The Court also scrutinized financial
decisions made by religious trusts and endowments by articulating a distinction between the
‘essential’ and ‘secular’ practices of a religious group. As per this standard, judicial interventions were
legitimized in so far as they dealt with practices pertaining to financial matters such as the
distribution of offerings collected from worshippers and the management of property owned by
religious groups. On the other hand, functions such as the performance of long-practiced
ceremonies and the preservation of the premises were deemed to be ‘essential’ and hence left outside
the purview of judicial scrutiny and left to beliefs of particular religious denomination.

Over time, the ‘essential-secular’ dyad has proved to be counterproductive in several matters dealing
with governmental restrictions on religious practices. In particular, it has proved to be a conceptual
obstacle in dealing with persistent controversies such as those arising from restrictions on cow-
slaughter[partially in constitution and more so in state laws] and State-level laws that criminalize the
act of religious conversion.[In such cases, hard to identify what are the essential religious practices
that must be respected, and what is the non-essential, secular dimension of the practice in which
state may intervene] There have also been intense debates surrounding situations where religious
practices are seen as antithetical to the maintenance of public order. Another significant question
that can be examined at this stage is whether there should be judicial scrutiny over personal laws of
religious minorities? While older decisions had exempted personal laws from such scrutiny through
their interpretation of Article 13, the question has been debated intensely in recent times, especially
in the context of some marriage practices which are recognised in Muslim Personal Law such as
‘Triple Talaq’ and ‘Polygamy’. [How to bring constitutional rights into personal laws? - Shayara
Bano has opened up the possibility of scrutinizing personal laws by invoking constitutional rights.]

Hindu nationalism in India being argued for aggressively, gaining a lot of currency in the current
political climate. Secularism has gained a bad name with a large number of people. Commentators
representing RW and independent analysts - idea of secularism brought up and dismissed nowadays
in TV debates. Other domains where secularism abused as a word, whatsapp conversations.
Criticism against academicians - they’ve isolated themselves from the rest of the population to such
an extent that their idea of secularism is not understood by masses. masses have rejected the ‘elite’
notion of secularism pushed for by the professors. We shouldn’t fall prey to this criticism.

He then goes on a rant about how hatred and poison in the form of misinformation is being spread
by RW. Someone asks a question about why secularism was added separately in the preamble.
Sidchu clarifies by saying that the adding of the words ‘socialist, secular’ by 42nd Amendment was
symbolic for Mrs. Gandhi, since those ideas were already reflected in the constitutional provisions
such as DPSPs, and FRs, CA Debates.

He discusses the Rajeev Bhargava reading - the fairly simple parts - just read it. The principled
distance approach opposed to the western notions of equal respect secularism and no concern
secularism. Main argument starts when the author is discussing and comparing secularism with
Theocracy etc. [Page 7 and 8]

Class 7.3

Rajeev Bhargav

Principled Distance between state and religions

Initial clarifications that he offers - it’s not that the way in which we think about secularism in post-
colonialism is fundamentally different from the universal doctrine of secularism, at a very basic level
the idea is that there must be some degree of separation those who exercise power in the name of
state and those who do that in the name of traditional authorities based on religion. Why was the
doctrine important in western european world - answer - the emergence of the wall of separation is
a response to domination of religion in public life. There was a scenario where royal authorities
themselves relied upon support of clergies. Both exercise of political authority and exercise of
organised religious authority under the church were enmeshed. Much of the process of
democratization which takes power away from hereditary monarchs and then confers it into elected
parliaments -- is not just about rejecting older monarchic orders but also about delinking the power
of the church, which previously played a dominant role in the way in which state made its decisions.
[allocation of land, methods of dispute settlement etc]

One of the major arguments during the period of reformation was not just the emergence of a
protestant ethic/sect in comparison to the older roman catholic church but you also saw a parallel
process (becoming stronger later) where authority of elected parliament/office bearer becomes more
important than that of a hereditary monarch. Reformation speaks about processes of reform, or
fragmentation within the older catholic church, argument about secularisation of political power
has more to do with the idea that the previous influence exercised by the clergy or the state on the
authority of the state would now reduce and the authority of elected representatives would become
primary and be seen as separate from customary officials. Critique - india has emerged as a multi
religious society after going through colonial rule then independent, does not match the western
historical trajectory to secularism - main arg: underlying conditions for western secularism
[separation bw state and pvt religion] is not an idea suitable for us, we haven’t had such a strong
separation between public and religious authority. Bhargav adds further nuance - it’s a mistake to
fall into this binary of indian/indigenous and western notion of secularism. Post independence
constitution written after colonial rule - it’s pointless to think about older traditional notions of
secularism and colonial model of secularism. The framing of the constitution marks a new start and
vision. The way in which we read these provisions shouldn’t be constrained by these two notions
mentioned above. [1)older indigenous notions of secular or 2)colonial - state more interested in
economic extraction rather than advancing the goal of religious liberty]. Why is he trying to say
indian secularism is separate from these two?

Non secular regimes

Theocracy is a political order where leaders of religious organisations are the ones exercising political
powers. Ancient Israel, japan, china. Counsel of religion elders have higher power than elected
officials. He says theocratic state would be the opposite of a secular state. Idea - traditional religious
authority is embedded into state power - difficult to distinguish between the limits of state power
and where religious authority starts. There could be other possibilities opposing the concept of
secularism - where the state establishes one religion or when the state establishes multiple religions.
Doesn’t mean ‘creation’. The state in its structure or its practices endorses a particular religion -
‘establishment’. The idea of establishment can happen in a formal way - constitution giving primacy
to particular religion. Situations where certain symbols associated with a religion are also entrenched
in the exercise of state power [religious doctrines being associated with public oaths; religious
symbols appearing in currency, citizenship requirements] These are examples of non-secular but
non-theocratic. Theocracy doesn’t allow scope for questioning the dominant religion which
permeates civic and public life.

Establishment of a particular religion v. Establishment of Multiple Religions

Not the literal creation, but the design and functioning of the state reflects the predominance of a
particular religion. Situation where the regime of a particular country chooses to endorse multiple
religions. That doesn’t necessarily mean that entity is secular. It is possible for states to have the
establishment of multiple religions with or without church. [Ashoka, Vijayanagar Kingdom] .This
is not the same as equal respect secularism - the notion presumes that the state is separate from
religious authority and religion functions in their autonomous spheres and debate is about how state
should treat religions. Whereas, establishments - there is a possibility(probably hypothetical) of
symbols of multiple religions being reflected in organisation of state. However, the example of the
state establishing multiple religions isn’t that important,because most of the discussion revolving
around the framing of secularism has happened in opposition to the idea of the state establishing a
single religion.
Establishment of Church

A situation where there is a strong history of organisation or centralisation in a particular religion

[rituals, priests, assigning roles]. Being part of religion is different from establishment of a church, a
narrower idea, that religion having organisational structure binding you to follow norms practices
and institutions reflecting elaborate organisational structure. Hinduism may reflect the
characteristics of loosely defined religion, legal category for family law reforms, cultural category
[associated not so much w practices but shared inheritance of classical text] membership of it not
based on clear structure of central organisation. [judaism, christianity]. The idea that we often
struggle with - how do we define Hinduism, question comes up in religious freedom cases where the
court has to use its discretion on whether something constitutes essential practices of a particular
religious denomination and whether that denomination is Hindu. [Temple Entry, State Interference
w management of property held by religious denomination] constant debate about whether
hinduism is a diffused and loose umbrella like entity where people are only part of it in a very loose
sense, or whether it reflects an organisational structure akin to that of Islam, Judaism, Christianity
which have a far more elaborate understanding of their organisation practices and are closer to the
idea of establishment of a church. Distinction - membership of religion might be because of
inheritance, geography, social conditioning, matters of choice etc and that loose affiliation is
different from the idea of belonging to a particular group or denomination which has unique
practices which are adhered to and are enforced on the members even if with a considerable threat
of sanction. Establishment of a church is narrower and more concrete in comparison to
establishment of a religion.

Bhargav: distinction that one can draw between state and religion rests on three different kinds of
connection [historically rested on non secular regime]. How to separate state power from religion,
important to understand how it was connected historically. Three possible levels of connection in
these non secular models:

1. Ends, purposes - objective of the state, objective of religion, and in some cultures
(communitarian) the objectives aren’t differentiated, situations akin to theocracy
2. Roles, functions, powers or insitutitions - reflects distinction between endorsement of
particular religion by the state and establishment of church which lie at different levels
3. State policy

In theocracies, state and church are connected at all three levels. However, countries with established
churches, where there is an organised religion with church like structures within it, and the state is
favouring them. You have primary and third order connection and at best partially 2nd order. Which
means that the institutions of the state might be different from institutions of the religion. But there
might still be some similarities between goals of the religious order and the goals of the secular
authority, and for that matter, the pursuit of the religious belief might also be reflected in the design
of the law or the constitution. This is not exactly a situation resembling a theocracy. But, let’s say a
country where a particular majority religion/ any religion is endorsed and preferred in the design and
content of the policies of the country. In principle, it is not impossible for states with established
churches to be entirely disconnected from them at the 2nd level. This is what distinguished state w
established churches from theocracies -- disconnection at 2nd level.

Secular State

Page 11 last paragraph - he reads and explains. Talks about how mere ‘institutional disconnection’
between the state and religion isn’t enough for a state to be identified as a secular one in the modern
sense. “It is not uncommon to identify secularism with the church state separation idea” “But by
itself this separation does not install a secular state and is not the distinguishing feature of political
secularism”

Bhargava says - functional separation between state and religion is only one condition to be met in a
truly secular state, there must be some other conditions as well that must be met to move towards a
truly secular order. He thus discusses the “three levels of disconnection”.

1. Ends
2. Institutions
3. Law and Public Policy

For a state to be truly secular, state and religion have to be separated on all three levels, that is the
operative question that one should ask. He says rather than only looking at the second level, which
draws a demarcation between who exercises electoral power and who exercises religious authority,
we must ask a broader set of questions to identify whether or not secular values are being respected
by asking whether the overarching objectives of the State and the overarching objectives of organised
religion are separable, then ask whether the design of the institutions are separate and whether law
and public policy makes this separation.

“A secular state is distinguished from theocracies and states with established states by a primary, first-
level disconnection. A secular state has free standing ends, either substantially, if not always
completely, disconnected from the ends of religion or conceivable without a connection with them.
States with established religions have something in common with secular states- at least a partial
institutional disconnection. But secular states go further in the direction of disconnection; they
break away completely. They withdraw favours or privileges that established churches had earlier
taken for granted. Finally, a state may be disconnected from religion even at the level of law and
public policy. Such a state maintains a policy of strict or absolute separation. The dominant self-
understanding of western secularism is that this third level disconnection is crucial.
When a state is disconnected from religion at all three levels, then we may say that a ‘wall of
separation’ has been erected between the two. On the wall of separation conception of secularism,
the state must have nothing to do with religion. Religion must be outside the purview of the state,
and in this sense, it must be privatized. But there are two other modes of relating to religion at this
third level. The state may either be strictly neutral, a stance that may in some circumstances implicate
it with religion or it may even go beyond neutrality, connect with it in yet another way, a point to
which I return in detail below.”

Organised religion having more bargaining power leads to situations of inequalities in the society,
regardless of whether the State is neutral towards it or not. Thus, there could be situations where
state neutrality may not be sufficient to pursue the goals of secularism in a substantive sense, which
would include a commitment to values such as equal democratic citizenship and protection of
religious liberty as a goal in itself. A non-theocratic state is not automatically secular, there are sliding
scales of possibilities. Secular state goes beyond church-state separation, follows the principle of non-
establishment or disestablishment.

“Furthermore, the non-establishment of religion means that the state is separated not merely from
one but from all religions. (I shall call it feature-a). Thus, in a secular state, a formal or legal union or
alliance between state and religion is impermissible. Official status is not given to religion. No
religious community in such a state can say that the state belongs exclusively to it. Nor can all of
together say that it belongs collectively to them and them alone. This does not mean that a secular
state is anti-religious but it does imply that it exists and survives only when religion is no longer
hegemonic”

There might be a majority religion with larger resources available to them but at the level of law and
policy, the religion is not allowed to be hegemonic.

Clear objectives of a Secular State

“At the most general level, secular states aim to end religious hegemony, oppression and domination
and to do so by separating them from their structure. But something more needs to be said about
why we need to separate. Broadly there are two reasons. First, states may do so simply for self-
aggrandizement, for example when states (political rulers) wish to maximize their own power and
wealth. These states are not motivated by values such as peace, liberty or equality. They may have
pretense but at root they have no commitment to any moral values. I shall call them self-aggrandizing
amoral secular states. Usually, such states are imperial and autocratic. A good example of such a
predominantly secular state, is the British colonial state in India that was motivated almost
exclusively by power, wealth and social order, had a policy of tolerance and neutrality towards
different religious communities. This is not surprising, given that empires are interested in the labour
or tribute of their subjects, not in their religion. In multi-religious societies, for purely instrumental
reasons, they may display characteristics of states that establish multiple religions or have a hands off
approach to all religions.”

He says even among the ways in which we conceptualise secularism separate from theocracy, we have
another possibility of a secular state where it is enforced in an authoritarian fashion. [British Colonial
State] The colonial model of secularism is not an ideal model and should not be compared with post
independence secularism because the colonial model’s primary motive was economic extraction and
not pursuit of peace or justice or constitutional goals of equality and liberty as we understand them
now. This brings us to more explicitly articulate the connection of Non self aggrandizing state with
several important values -- this is what he meant by pursuing a notion of secularism that advances
certain values. This distinction between the colonial model of secularism [primarily premised on the
notion of maintaining public order, keeping peace between different faiths, avoiding conflicts -- seen
in the larger realm of ensuring economic productivity and extracting rents from colonies].
According to Bhargava, the true notion of secularism should be identified with substantive
constitutional goals such as justice, liberty and equality. That is what is reflective of the distinctive
nature of secularization. Protection of religious freedom is itself an important goal, the way it is
demarcated in Part 3 also has to interact with broader constitutional goals [equality and liberty].
Provisions that confer religious freedom, but there are also provisions that allow the state to
intervene in such freedom in pursuit of public welfare [discriminatory practices - state’s benign role
- to advance the goals of social equality]. Rights given to religious minorities, [article 29,30], sets of
rights reflecting the need to respond to needs of smaller minority groups in accordance with the
unique history and distinctive culture -- careful balancing of rights done misrepresented right now.

Substantive Values associated with Normative/Constructive notion of secularism

1. Peace Building: Prevention of a society from its regression into barbarism which is not an
uncommon tendency [where there are two or more incompatible visions of a good life].
Pursuit of peace, prevention of conflict. Colonial state - prevention of riots to advance
economic productivity.
2. Tolerance: not in terms of state tolerating other religions, people cultivating a sense of
tolerance with respect to others. The second is toleration, i.e. the state does not persecute
anyone on grounds of religion. We must eschew the tendency within western modernist
discourse to conceive of civil strife as a result purely of a clash of interests. The development
of secularism in the west and elsewhere cannot be properly understood without fully
comprehending the fear of cruelty and disorder that marks the conflict of ultimate ideals.
 3. In the design of the Constitution, emphasis on religious liberty is a substantive value, not a
means to an end.The respect for religious liberty, is the protections given in the Constitution
- there is a commitment to religious liberty as an end in itself, which asks us to situate
religious liberty vis-a-vis other rights in the Part 3 of the Constitution. A secular state is
constitutively tied to the value of religious liberty that has three dimensions. The first refers
to the liberty of members of any one religious group. (Feature-b) It is a brute fact that in
most religious communities, one or two interpretations of its core beliefs and practices come
to dominate. Given this dominance, it is important that every individual or sect within the
group be given the right to criticize, revise or challenge these dominant interpretations. The
second aspect of this important liberty in a secular state, (feature-c), is that it is granted non
preferentially to all members of every religious community. It is entirely possible that non-
preferential treatment by the state of groups that accord religious liberty to its members is
also found in states respecting multiple establishments. But religious liberty is not part of the
core principles of multiple establishment. However, it is a constitutive feature of the secular
state. The third dimension of religious liberty, (feature-d), unthinkable in states with
multiple establishment, is that individuals are free not only to criticize the religion into which
they are born, but at the very extreme, to reject it and further, given ideal conditions of
deliberation, to freely embrace another religion or to remain without one.

Larger debate: Should religious liberty be treated as a standalone right or should it be read in
subordination or conjunction to other enumerated rights? Some cases said it is a distinctive value
which is reflected in the design of the Constitution, textualist approach leads one to believe it must
be read and conceived of quite differently. Some will say let’s not just read the placement of religious
freedom as separate from rights in 19 and 21, let’s pay attention to the pre-emptive language of
Article 25 and 26 -- which simply makes religious liberty subject to public order, morality, health
and for the purpose of 25(1), other rights in Part III. A more pragmatic way of reading tells us that
it is not given the same degree of protection as other enumerated rights. Since it’s available to all
persons[not just citizens], its ambit is broader than 19, but in terms of its relative priority, it is subject
to other fundamental rights.

Religious liberty is an important value of a secular state, another crucial indicator - how to link it
with dimensions of citizenship.

Thus, the second value to which a secular state is constitutively linked is the equality of free
citizenship. The value of equal citizenship has two dimensions, one active, the other passive. It is a
feature of democratic polities that these two roles of citizens coincide and therefore a democratic
government must be continuously justifiable from both points of views. To be a passive citizen is to
be entitled to physical security, a minimum of material well-being and a sphere of one’s own in which
others ought not to interfere.
If citizenship itself entitles you to rights such as association, movement, residence, economic
freedom -- one should look at religious freedom from that frame as well at least conceptually. But
one might argue that textually indian constitution makes religious freedom available to non-citizens
as well and is located in a different part of the constitution but broadly one might say that the exercise
of religious freedom is also an important dimension of citizenship rights which is otherwise
associated with the enumerated rights [Art. 19].

Valuation lies at the root of the idea of the right to life, liberty, material welfare and perhaps,
education – crucial elements if ordinary people are to lead their ordinary life with dignity. Any
citizen of the state must be entitled to these benefits. This is partly an extension of the point implicit
in the defence of religious liberty but in part it adds something substantial of its own. The benefits
of citizenship – resources that enable a dignified ordinary life – must be available to everyone and
there is no room here for discrimination on grounds of religion. (Feature-e) This equal treatment is
entailed by equal (passive) citizenship. State agencies and the entire system of law must not work in
favour of one religious group. If the state works to protect the security and wellbeing of some
individuals or groups but fails to secure these meagre but important benefits to others then the
principle of equal (passive) citizenship is violated. Likewise, since citizenship is conditional upon
education, no one must be denied admission to educational institutions, solely on grounds of
religion (Feature-f)

Equal treatment or equal respect seen as a value by itself also has interaction with religious freedom,
thinking about the design of the constitution - both protection of religious liberty and identification
of citizenship rights are important values advanced in conceptualisation of citizenship. May or may
not be present in non-secular model but the pursuit of secularism in a meaningful manner means
these values need to be prioritized.

Class 7.4

He recaps the last class, Bhargav’s main argument about how western style secularism cannot be
associated with Indian secularism - need to move beyond the binary of western or
nativised/traditional secularism. We can’t conflate it with western models or supposed rhetorics of
indigenous models. Unlike the west which saw long conflict which led to the rise of alternative
churches and emergence of elected authorities which tried to separate the two -- India didn’t go
through that separation -- many princely states where both authorities were closely embedded.
Design and deliberation of Indian Constitution - distinctive product.

Refer to the table given in Bhargav’s article - the table of values and which model has what.

Pursuit of religious liberty - not just liberty of groups to follow religion of their choice, but to
question the beliefs of groups they belong to and to criticise and leave those groups, in that sense it
can be compared to personal liberty, whereas fundamentally it is a matter of exercising and
prioritizing individual choices in terms of continuing or choosing to leave. All possibilities
[continuation, criticism, exit] -- captured within religious liberty. Framing of religious liberty both
as individuals and groups in art 25 and 26 seems to suggest it is an independent constitutional value.
Apart from looking at it as a distinctive safeguard, we can also look at the question of religious
freedom through the lens of what it means to be an equal citizen. There are enumerated rights for
citizens, non-citizens rights[Art. 20,21], art 25 and 26 can also be seen as expanding the notion of
equal citizenship. Just as we value civil political rights of participation [voting, assembly, association,
state assistance], all of these rights are a part of a larger basket of rights which seek to further the
notion of equal citizenship and religious freedom is one part of that larger basket. Takes us to an
interpretative debate - should we see religious freedom as an extension of rights appearing in 19, 20,
or should we see it as a separate package to be seen differently? [larger debate]

Table: Anti religious secular state- strong wall of separation. In the Indian context, we’re talking
about a value-based secular state, to be understood in its own terms.

Bhargav’s commentary on Indian Secularism

The state in the Indian constitution appears to possess all the features (Feature-a to g) of a secular
state.

Feature a- the non-establishment of religion means that the state is separated not merely from one
but from all religion

Feature b-the liberty of members of any one religious group

Feature c- liberty in a secular state is granted non preferentially to all members of every religious
communities.

Feature d- individuals are free not only to criticize the religion into which they are born, but at the
very extreme, to reject it and further, given ideal conditions of deliberation, to freely embrace another
religion or to remain without one.

Feature e- The benefits of citizenship – resources that enable a dignified ordinary life – must be
available to everyone and there is no room here for discrimination on grounds of religion.

Feature f- Since citizenship is conditional upon education, no one must be denied admission to
educational institutions, solely on grounds of religion 29(2)

Feature g- Equality of citizenship to which secularism is tied conveys a community wide

acknowledgement of equal respect for everyone in the political domain. 14, 15(1)
He discusses how these features are reflected in our constitutional provisions.

Equality of citizenship is guaranteed by Articles 14, 15(1) and 29(2) of the Indian constitution.
Article 15(1) states that the state shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them. (Feature-e) Article 29(2) declares that no
citizen shall be denied admission into any educational institution maintained by the state on grounds
only of religion, race etc. (Feature-f) Article 16(1) & (2) of Indian constitution affirm an equal
opportunity for all citizens in matters relating to employment or appointment of any office under
the state. It further affirms that no citizen, on grounds of religion or race be eligible for or
discriminated against in respect of any employment or office under the state. The clause on universal
franchise as well as Article 325 that declares a general electoral roll for all constituencies and states
that no one shall be ineligible for inclusion in this roll or claim to be included in it on grounds only
of religion, etc. embody the value of equal active citizenship. [important because conscious decision
was made to discontinue with colonial practice separate electorates based on religious lines - art 325;
group/identity based representation is done in different ways - electoral reservation favoring
SC/STs; electoral rolls drawn for elections won’t have any distinction based on religion/caste] Thus
Feature-g is specified in the Articles on equality of active citizenship.

The implications of accepting that the state in the Indian constitution is meant to possess features-a
to g are not always spelt out. First, the constitution rules out theocracy and the establishment of
religion. The term ‘secular state’ is usually contrasted simply with theocracy. This is misleading, if
not false, because the absence of theocracy is compatible with the establishment of religion The
secular credentials of the state cannot be derived from the mere absence of theocracy. Second, the
Indian state is not meant to be merely tolerant. (in the sense specified above). Indian secularism must
not be confused with a generally professed Hindu tolerance. It is frequently claimed that Indians
have a natural, traditional affinity with secularism. In view of our traditional obsession with subtle
and not so subtle hierarchies, this claim must be taken with a pinch of salt if not pepper. Of course,
this should not detract from the important point that tolerance, even within a hierarchical
framework, forms an important background condition for the development of modern secularism.

The word ‘tolerance’ is normally framed from the standpoint of majority religion; very often there's
a stereotype of Hindus being tolerant [not so much now, contested w several judicial decisions].
That’s flawed in itself because secularism to be identified with the state at large and with behavior
and practice of groups across the board. Not for the majority religion to claim that they are tolerant,
the idea of ‘tolerance’ applies at multiple levels: at the level of state and its treatment of multiple
religions; at the level of members of a particular religion and how they interact with those of other
faith; at the level of tolerance within the groups.
Third, the secularism of the Indian constitution is neither a simple-minded singlevalue idea nor over-
inflated and hyper-substantive. Rather, it is a complex, multivalue doctrine. Respect for
ReligiousLiberty and idea of equal citizenship among others such as peace and tolerance which are
to be considered to shape the understanding of Indian Secularism.

Donald Smith

Broadly, secularism is taken to be the view that religion must be separated from the state for the sake
of extensive religious liberty and equality of citizenship. This view can be differently interpreted. For
Donald Smith, the secular state involves three distinct but interrelated relations concerning the state,
religion and the individual. The first relation concerns individuals and their religion, from which the
state is excluded. [question of how an individual treats their own faith or what’s the role and
significance given to that faith in public life]. Individuals are thereby free to decide the merits of the
respective claims of different religions without any coercive interference by the state - the
libertarian ingredient in secularism.[some aspect of rl closer to freedoms that have negative duties
- state is not supposed to interfere in terms of choosing a faith and following its practices. It becomes
difficult for the state to interfere when it wants to do so in interest of social equality - Western
secularism looks at it from the lens of personal liberty(american constitution]; closer to how we see
economic freedoms - make choices in a way that better reflects their talents] The second concerns
the relation between individuals and the state, from which religion is excluded.[idea of a civic
identity where individual’s participation in a state, identification as a citizen becomes more
important, religious identity becomes secondary] Thus, the rights and duties of citizens are not
affected by the religious beliefs held by individuals - the egalitarian component in secularism.
Finally, for Smith, the integrity of both these relations is dependent on the third relation, between
the state and different religions. [how does the state treat different religions, does it prefer one over
another or does it maintain principled distance]. Here he argues that secularism entails the mutual
exclusion of state and religion.

Rights and duties of citizens are framed from the view of a secular state and how much it can deliver
and then the question arises: to what extent is state interference justified in matters of religious belief
[temple entry cases, management of a temple trust, customary practices of a group - selection of
leader, exculpation of member] we’re debating egalitarian component of secularism - link between
religious freedom and equality. Liberty and religious freedom, equality and religious freedom, how
state gives/denies resources to different religions [Donald Smith] Just as political power is outside
the scope of religion’s legitimate objectives, just so it is not the function of the state to promote,
regulate, direct or interfere in religion.

Some people argue that the language of rights given under 25 and 26 are in the nature of economic
freedoms - allowing more state intervention - secular and financial aspects of management of temple
trusts they’ve been given rights. Bhargav - If we restrict our understanding of secularism to liberty
lens to include economic freedom, that may not capture broader understanding of secularism where
we look at the link and tension between the idea of equality and religious freedom. Anti-
discrimination provisions provides best example of thinking about connection between RF and
equality. When religious practices or beliefs undermine equality goals, state can use its coercive
power to interfere with those practices in the interest of reforms.

Departures from Mainstream Western Secularism

Does Indian secularism erect a similar ‘wall of separation’ for the sake of individualistically construed
values? Is it a western idea on Indian soil? Articles 15, 16, 25, 29(2) and 325 support this
interpretation. Though there is no direct reference to disestablishment, Articles 27 and 28(1) imply
strict separation. By giving the President of the Republic the option of not taking oath in the name
of God, Article 60 confirms the strictly neutral character of the Indian constitution. From the
discussion so far, it appears that the state in India is constitutionally bound to follow Smith’s model
of western secularism.However, further examination of the constitution reveals this impression to
be mistaken.Why is it that there are provisions move towards group oriented notion of secularism -
where both asymmetric treatment of religions and state intervention in the interest of reforms are
justified. We’ll look at those provisions. To begin with, Article 30(1) recognises the rights of religious
minorities and therefore, unlike other Articles applicable to citizens qua individuals, it is a
community-based right. Indeed, another community-specific right granting political representation
to religious minorities was almost granted [in form of separate electorates and was removed from the
constitution only at the last minute. Policy of electoral reservation was chosen for SC/STs.] Second,
Article 30(2) commits the state to give aid to educational institutions established and administered
by religious communities. Also permitted is religious instruction in educational institutions that are
partly funded by the state. These are significant departures from the ‘wall of separation’ view of the
secular state. Even more significant are Articles 17 and 25(2) that require the state to intervene in
religious affairs. Article 25(2)(b) states that ‘nothing in Article 25(1) prevents the state from making
a law providing for social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus.’ Article 17 is an uninhibited, robust attack
on the caste system, arguably the central feature of Hinduism, by abolishing untouchability and by
making the enforcement of any disability arising out of it an offence punishable by law. Both appear
to take away the individual freedom of religion granted under Section 1of Article 25 and to
contravene Article 26.

Sabrimala (decided) was clubbed with other cases relating to connection between religious freedom
and gender justice and sent for review by Gogoi J.
These features of the Indian constitution depart from the stereotypical western model in two ways.
First, unlike the strict separation view that renders the state powerless in religious matters, they
enjoin the state to interfere in religion. Second, more importantly, by giving powers to the state in
the affairs of one religion, they necessitate a departure from strict neutrality or equidistance. This
power of interference may be interpreted to undermine or promote Hinduism. Either way it appears
to strike a powerful blow to the idea of non-preferential treatment.

In short, some Articles in the Indian constitution support an individualist interpretation and others
a non-individualist one. Some conceive separation as exclusion, others as non-preferential treatment
and, finally, some depart altogether from separation understood as exclusion or neutrality. At the
end of the day, a confusing, somewhat contradictory picture on secularism emerges from a reading
of the constitution. Critics could hardly fail to notice this and for many of them, Articles 17, 25(2),
30(1 & 2) compromise the secularity of the Indian state. For Donald Smith, any intervention in
Hinduism – for example the legal ban on the prohibition of Dalit entry into temples or any
protection of the rights of communities seriously compromises secularism. For others, like
Chatterjee, the presence of these features in the Indian constitution shows why the Indian state
cannot be really secular. The Indian constitution does not give an unambiguous criteria for
maintaining the secularity of the state and, quite simply, given Indian conditions, it could never
have.

MOST IMP:

By accepting community-based rights for religious minorities and endorsing state intervention in
religion, did the constitution depart from secular principles? I do not think it did. Rather, it
developed its own modern variant. This distinctiveness of the Indian secularism can be understood
only when the cultural background and social context in India is properly grasped. At least four such
features of this socio-cultural context call for attention. First, there exists the mind boggling diversity
of religious communities in India. Such diversity may coexist harmoniously but it invariably
generates conflicts, the most intractable of which, I believe, are deep conflicts over values. Second,
within Hinduism in particular and in South Asian religions more generally, a greater emphasis is
placed on practice rather than belief. A person’s religious identity and affiliation are defined more
by what she or he does with and in relation to others, than by the content of beliefs individually held
by them. Since practices are intrinsically social, any significance placed on them brings about a
concomitant valorization of communities. Together, these two features entail inter community
conflicts which are further exacerbated if fuelled by competing conceptions of democracy and
nationalism. Third, many religiously sanctioned social practices are oppressive by virtue of their
illiberal and inegalitarian character, and deny a life of dignity and self-respect.[untouchability,
exclusion from temple entry-Ambedkar wanted strong safeguards against them -build equal society
- ambedkarian understanding of state’s counter majoritarian function] Therefore, from a liberal and
egalitarian standpoint, they desperately need to be reformed. Such practices frequently have a life of
their own, independent of consciously held beliefs, and possess a causal efficacy that remains
unaffected by the presence of conscious beliefs. Furthermore, a tendency to fortify and insulate
themselves from reflective critique makes them resistant to easy change and reform. It follows that
an institution vested with enormous social power is needed to transform their character. Fourth, in
Hinduism, the absence of an organized institution such as the Church has meant that the impetus
for effective reform cannot come exclusively from within. Reform within Hinduism can hardly be
initiated without help from powerful external institutions such as the state.

In such a context, India needed a coherent set of intellectual resources to tackle interreligious
conflict, and to struggle against oppressive communities not by disaggregating them into a collection
of individuals or by de-recognizing them (and therefore, not by privatizing religion) but by somehow
making them more liberal and egalitarian. The normative content of indian secularism is not to move
towards a purely individual liberty conception where RF is considered as yet another private right
that one has where state musn’t intervene, but given the oppressive nature of practices it became
important to locate State as a powerful external mechanism which could bring in reform. A political
movement for a united, liberal, democratic India had to struggle against hierarchical and communal
conceptions of community but without abandoning a reasonable communitarianism. Besides, the
state had an important contribution to make in the transformation of these communities; for this
reason, a perennial dilemma was imposed on it. The state in India walked a tightrope between
the requirement of religious liberty that frequently entails non-interference in the affairs
of religious communities, and the demand for equality and justice which necessitates
intervention in religiously sanctioned social customs. This is the underlying tension which
Indian Secularism entails.

[He calls this the heart of the essay - the core distinctiveness of Indian Secularism]
Combines elements of both Libertarian notion which situates religious freedom akin to
other freedoms but includes provisions that allows state to intervene as well to ensure
equality - Indian Constitution strikes careful balancing of both these dimensions. Sidchu
says this is a result of many efforts of the Constitutional Assembly debates and a notion worth
preserving rather than abandoning as is happening today.

Indian Secularism simply had to be different from the western liberal model that does not recognize
communities, and dictates strict separation between religious and political institutions. If we
abandon the view, such as Donald Smith’s, that political secularism entails a unique set of state
policies valid under all conditions which provide the yardstick by which the secularity of any state is
to be judged, then we can better understand why despite ‘deviation’ from the ideal, the state in India
continues to embody a model of secularism. This can be shown even if we stick to Smith’s working
definition of secularism as consisting of three relations. Smith’s first relation embodies the principle
of religious liberty construed individualistically, i.e., pertaining to the religious beliefs of individuals.
However, it is possible to make a non-individualistic construal of religious liberty by speaking not of
the beliefs of individual but rather of the practices of groups. Here religious liberty would mean
distancing the state from the practices of religious groups. The first principle of secularism can then
be seen to also grant the right to a religious community to its own practices. Smith’s second relation
embodies the value of equal citizenship. But this entails - and I cannot substantiate my claim - that
we tolerate the attempt of radically differing groups to determine the nature and direction of society
as they best see it. In this view, then, the public presence of the religious practices of groups is
guaranteed and entailed by the recognition of community-differentiated citizenship rights. Smith’s
version of secularism entails a charter of uniform rights. But it is clear that the commitment of
secularism to equal citizenship can dictate community-based rights. In principle, this could easily
accommodate a reasonable demand for community-specific political rights. In India, for reasons
outlined above, it meant community-specific social rights, such as the right to administer and
maintain educational institutions. What this shows is that Indian secularism is concerned as much
with intra-religious oppression as with inter-religious domination. Smith’s third principle pertains
to non-establishment and therefore to a strict separation of religion from state, under which religion
and the state both have the freedom to develop without interfering with each other. Separation,
however, need not mean strict non-interference, mutual exclusion or equidistance, as in Smith’s
view. Instead, it could be a policy of principled distance.

Class 7.5

Principled Distance

Smith - instead of framing RF as protection, idea constrained by social reform, think about the idea
of principled distance, indian secularism isn’t equal distance - people can practice in public but state
shouldn’t favour one over other - state neutrality. As opposed to that, we have principled distance.

Religious freedom - equality - Ambedkar idea of state’s social reform - countermajoritarian

India’s secularism isn’t equal respect. Rather it is principled distance. This means that there will be
some circumstances where the state should withdraw and not interfere but there are also some
instances where, with a view towards the particular history of that religion, state should interfere.
How do we locate the idea of principled distance in the context of drafting of Indian constitution?
Art 29 - protection to linguistic minorities; Art 30 – right to establish and administer. These are both
minority rights, which were considered important because otherwise they’ll be voiced down.
Bhargav - So this is not an equal distance. This is a principled distance. It is important to codify these
protections rather than just leave it to parliaments[given the precarious nature of people belonging
to linguistic and religious minorities, imbalances in representation - it becomes important to codify
these provisions]. Reforms in Hinduism - Art 25(2) - Govt empowered to make law for social
reform: Throwing open Hindu temples, this is also differential treatment since other religions (of
religious minorities such as Muslims) are not reformed [some people will argue] - debate about
muslim personal law, common refrain of hindu right - codifying hindu family law - no such process
of codification was done for minorities, that argument has several fallacies. Hindu code bill - can be
broken down into 4 statutes, certain aspects of Hindu Fam law is codified, not entirely. Because of
opposition to codify Hindu Family law, the union cabinet hesitated to bring out Hindu Code bill -
- that’s why Ambedkar leaves, because the Nehru cabinet was dragging its feet while enacting it. He
wanted it as a package for reforms in family law specially to tackle gender based discrimination [to
bring in grounds such a scruelty in marriage etc]; afterwards, nehru broke it down in 4 parts and
were enacted, even they don’t completely codify hindu practices given under Mitakshara and
Dayabhaga. It is a fallacy to say that only Hindus were targeted for codification. Status of Muslim
personal law was brought into question for the purpose of this debate. Important thus is
the Shayara Bano case.

Shayara Bano
Sidchu starts the discussion with Narasu.
Main question in Narasu was why was the Bombay Bigamy Act only applicable to Hindus, violation
of 14, 15(1) and 25. The Act was brought before the enactment of the Constitution. Bench: MC
Chagla, PB Gajendragadkar.
Thus, the real issue was whether the law should have also reformed other religions. The judge looks
at it not in a textual manner, looks at the history and draws a distinction of personal and non-
personal law from the colonial times.
Now in doing such an historical inquiry, judges find that the state has taken a careful approach when
it covers personal laws, it explicitly covers communities when it wants reform oriented laws to cover
them. Colonial state drawing distinction between private and public law,named specific
communities in their law when they intended reforms, this is simply a continuation of that practice,
the Bombay act is thus justified in limiting hindus. The court says that personal law is not a part of
law under Art 13.
Now until Shayara bano, the understanding was that since Muslim personal law[Largely in the realm
of customs shouldn’t be scrutinized on constitutional grounds] wasn’t law under Article 13, courts
didn’t interfere[Narasu Appa Malli’s position]. Now Shah Bano begum in 1980s begins to become
a major political site.
Shah Bano held: Denial of maintenance. Daniel Latifi was her lawyer, argued for ordinary provisions
of maintenance to be available, pointed out that in muslim personal law the maintenance was
inadequate and amounted to neglect. YV Chandrachud J. - It was held you can’t leave Muslim
women welfare to personal law and adjudication by customary law bodies since that was inadequate
and hence Chandrachud applied 125 CrPC[ordinary maintenance provisions]. Now muslim
conservative community was agitated at this case and saw it as an interference with muslim personal
law and Chandrachud also mentions the need for UCC, apart from making the operative decision.
This led to uproar, especially the AIMCC. The Rajiv Gandhi govt then amended the statute to
revoke the effect of the case[1986 act - mantained primacy of muslim personal law when it comes to
maintenance]. RF Mohammad Khan resigned as minister from cabinet saying this is a surrender to
muslim clergy and govt should’ve respected shah bano case. [the case led to hindu right fire - saying
muslim clergy are reluctant to reforms] But in 2001 again, Daniel Latifi – the court again makes an
equitable calculation of maintenance and divorce. Then we come to Shayara Bano Validity of triple
talaq [2017] - court considers whether the continuation of talaq-e-bidat is consistent with
constitutional provisions
3:2 – minority still says personal law is different and not subject to part III, shouldn’t be interfered
with
Majority prefer equality, interfering with personal law, opposing Narasu, one of the opinions
explicitly overrules Narasu, says it’s no longer good law [because it was being repeatedly cited for
secular courts to no longer interfere]. Tpersonal laws though not mentioned in Art 13 can still be
scrutinized.
Rohinton Nariman J. says that the effect of the practice is what should matter, not the form or origin
of the practice. Whether or not muslim law should be under Art 13, the impact of such a practice
should be and can be scrutinized.
He also says that some aspects of Muslim personal law is in 1937 shariat act and hence the act was
applied in cases involving talaq e biddat. Hence the act is discriminatory in recognising the practice,
and hence is void on Article 14 (MA). Uses indirect route to say that even if muslim personal law
isn’t in Art 13, this act from 1937 partially recognises some aspects of the law and are discriminatory.
Open for the court to look at the statute and its associated practices from the lens of Art. 14. MA
means that arbitrariness is evident on the face of the law, not needed to be shown by petitioners.
Then he talks about temple entry cases of Article 25(2)(b) -- Commissioner case.

Module 8: Minority Rights