ANSWER TO QUESTION NUMBER 6

The power to decide whether a particular caste is a backward caste or not has travelled many
hands, from president to centre from centre to state. Various amendments have been made in
Indian constitution to decide who will have this power.

The NCBC Act of 1993 was enacted in response to the Indira Sawhney decision, and Section
2(c) defines lists as “lists prepared by the Government of India from time to time for purposes
of making provision for the reservation of appointments or posts in favour of backward
classes of citizens which, in the opinion of the Government, are not adequately represented in
the services under the Government of India and any local or other authority within the
territory of India or under the control of the Government of India”.

102nd amendment was introduced in the year 2018 by minister of social justice and
empowerment, the amendments were made in Article 338B and 342A of Indian constitution.
Article 338 mentions the powers, structure and duties of National Commission for Backward
Class (NCBC). And the Article 342 mentions that president has the powers to declare a
particular caste as a Socially and Educationally Backward Class which can also be modified
by central government.

The supreme court in the case of Dr. Jaishri Laxmanrao Patil v. Chief Minister (2021)
held that the state cannot identity any caste as a backward class and this power should be will
the president, state can only suggest to include or exclude or any caste from the list of
backward classes. Justice Bhat stated “By introducing Articles 366 (26C) and 342A through
the 102nd amendment, the President alone, and not any other authority, has the authority to
identify SEBCs and list them in a list published under Article 342A (1), which shall be
considered to include SEBCs in each state and union territory for purposes of the
Constitution”.

105th amendment was made in the Indian constitution in the 2021 which states that State
government has the power to declare a caste as a backward class in their region.

ARTICLE 15 (4)

Balaji v. State of Mysore (1963)

“The Mysore Government issued an order and decided to provide 68% reservation for
students belonging to backward classes for their admissions in medical and engineering
colleges. The government left only 32% of reservation for students getting admission on
merit. Because of this reservation, students with higher marks than those in the reserved
category failed to obtain a seat. In the opinion of the Court, the categorization of backward
and even more backward classes was not justified under Article 15(4). In order to be
considered ‘backward’, both socially and educationally backward can be included. Clause (4)
of Article 15 does not talk about caste but class. Additionally, the Court stated that reserving
68% of seats in medical and engineering schools would constitute constitutional fraud, as
Clause (4) of Article 15 prohibits exclusive provisions for backward classes. Therefore,
reservations could not exceed 50%”.

Jagwant Kaur v. State of Maharashtra (1952)

“The construction of a colony solely for harijans was considered to be violative of Article
15(1). Clause (4) under Article 15 was thus introduced for the purpose of helping the socially
and educationally disadvantaged citizens without violating any other provisions”.

Interpretating the Article 15 (4) the state government for the advancement of the backward
class has the power to identify a class as a backward class.

In the case of Indra Sawhney Etc. Etc vs Union Of India And Others it was held that there
must be an extraordinary circumstance to include a class in the list of Socially and
Educationally Backward Class (SEBC) thus the state of ABC must prove that there is an
extra ordinary circumstance with this particular class and the class is very backward socially
and educationally then only the court may grant reservation. State of Tamil Nadu has 69%
reservation and Maharashtra has 52% because they were able to prove a class as a backward
class similarly ABC state should also prove the extraordinary circumstance to exceed the cap
of 50%.

Doctrine of Colourable legislation will be applied here, the State of ABC do not have the
powers to exceed the CAP of 50% which was set in Indra Sawhney v. Union Of India case
and thus the state is indirectly exceeding the 50% CAP with the help of 105th amendment
which gives the power to state to identify socially and educationally backward class in a state,
not looking at other issues the ABC state granted reservation to all other caste except one this
is against Article 15 (4) of Indian Constitution. The is trying to exceed its power more than
limit to grant reservation to communities and appealing to include those communities in the
list of Socially and Educationally Backward Class.
ANSWER TO QUESTION NUMBER 3

Rape of a married women by her husband known as marital rape, there is no specific statute
to address the concern of marital rape. A rape is a rape be it marital or non-marital. It’s a
violation of Article 21 right to live with dignity of a women.

The right to life and personal liberty, as guaranteed by Article 21 of the constitution, are
among the most valued fundamental rights of the victim and are violated by rape, according
to the Hon. Supreme Court.

Right to life does not mean a mere animal existence it is beyond that one should be able to
live a life with peace and dignity.

Article 21 of Indian constitution safeguards a woman's right to life, dignity, and bodily
privacy, as well as her right to physical and mental well-being.

In the case of D.K Basu vs. State of West Bengal, it was held that “Article 21 protects
people from all forms of torture and other cruel, inhumane, or humiliating treatment. The
Court further ruled that a prisoner does not lose his right to life and dignity while serving a
prison sentence. Similarly, married women's freedom to choose whether to engage or refrain
from having sexual relations with their husbands cannot be separated from a prisoner's legal
rights. Married woman does not shed their right to consent and be free from rape just by
being married”.

EXCEPTION 2 375 IPC

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being under
eighteen years of age, is not rape”

Independent Thought vs. Union of India (2017)

In this case it was held “Exception 2 to Section 375 to be against the provisions and
objectives of POCSO and the social welfare aims of Article 15(3). To harmonize it with
POCSO and fundamental rights, it was deemed necessary to read Exception 2 as saying that
only sexual intercourse with a wife above 18 years of age was not rape. The Court also
opined that the right to life included the right to develop physically, mentally and
economically as an independent self-sufficient female adult and considered a range of
material discussing the deleterious effect of child marriage and young childbirth. The effect
of Exception 2 was to debilitate the girl child and negatively impact her physical and mental
health, which violated her rights under Articles 14, 15 and 21. The Court thus read down
Exception 2 to Section 375 insofar as it permitted a husband to have sexual intercourse with
his wife below the age of 18 years of age”.

Inconsistency with POSCO ACT-

Other than the IPC, a girl under the age of 18 is incapable of consenting to sexual conduct or
intercourse, according to legislation such as the POCSO Act. In reality, Section 5 of the
POCSO Act specifically makes sexual intercourse with a minor by a person related to her by
marriage an aggravated violation. As a result, the Exception to Section 375, IPC, which
assumed a girl child's consent simply because she is married, was found to be in violation
with the POCSO Act.

Justice Shankar in the case of RIT Foundation v. UOI and other remarked

“Any assumption that a wife, who is forced to have sex with her husband on a particular
occasion when she does not want to, feels the same degree of outrage as a woman raped by a
stranger, is not only unjustified, but ex facie unrealistic”.

“Irrespective of who the perpetrator is, forced sex mars the woman-victim physically,
psychologically and emotionally.”

“Sex-worker has been invested with the power to say “no”; by the law; but not a married
woman. In a gang rape involving the husband of the victim, the co-accused will face the
brunt of the rape law; but not the offending husband only because of his relationship with the
victim. A married woman’s ability to say “no” to sexual communion with her husband when
he is infected with a communicable disease, or she is herself unwell finds no space in the
present framework of rape law. Thus, the rape law as it stands at present is completely
skewed insofar as married women are concerned”.
To conclude I would say Ms. Kasturi has a right to live with dignity under article 21 of Indian
constitution and she is 14 years of age so the forceful sexual activity done by the married
husband will be covered under the definition of rape as we saw in the case of Independent
thought v. union of India where the age of rape for married women was increased from 15 to
18 which indeed is a good step. No women should tolerate marital rape or any kind of rape
done by any person she should immediately approach the court of law and file a complaint.
Rape is a serious offence not only against the women with whom rape has been done but
against the whole society and should not in any circumstance tolerated.

ANSWER TO QUESTION NUMBER 4

India is a common law country therefore in common law mens rea is an essential ingredient
in commission of any crime so it is presumed by law that mens rea is required in all offences
unless it is explicitly mentioned that mens rea is not required in a particular law or provision.
Mr. Lewis was not a citizen of India also, there was no intention with him to mislead the law
and to commit a crime or to smuggle the gold illegally in the country. Therefore, he cannot be
absolutely liable for the act he can be strictly liable for the act committed. It is also presumed
that person knows the consequences of the act is he doing but here Mr. Lewis was not having

The Supreme Court declared in Ravule Hariprasada Rao v State (1951) that “unless
legislation expressly or by essential inference excludes mens rea as a component ingredient
of a crime, a person should not be judged guilty of an offence unless he possessed a guilty
mind at the time of the conduct. It was reaffirmed by the Supreme Court in State of
Maharashtra v Mayer Hans George (1964), in which it was declared, among other things,
that the common law notion of mens rea does not apply to statutory offences in India. As a
result, there is a presumption that mens rea is a necessary component of a statutory offence.

It can be rebutted, however, by the exact words of the statute that created the offence or by
necessary inference. Following that, in Nathulal v State of Madhya Pradesh (1965) and
Kartar Singh v State of Punjab (1961), Justice K Subbarao, sitting for the Supreme Court,
emphasised that the element of mens rea must be read into statutory criminal provisions
unless a statute expressly or by necessary inference throws it out”.
Ejusdem Generis is Latin for "of the same kind." Unless the situation necessitates otherwise,
general terms should be given their natural meaning like all other words. However, when a
general word is followed by particular words from a different category, the general word may
be assigned a restricted meaning from the same category.

Here the question is whether Gold can be included in section 15 (1)(a)(iiia) “other materials”
or not?

Section 15 (1)(a)(iiia) of UAPA states: “damage to, the monetary stability of India by way of
production or smuggling or circulation of high-quality counterfeit Indian paper currency, coin
or of any other material”.

If we go with the principle of Ejusdem Generis Mr. Lewis will not be liable because other
material here is related with Indian currency, smuggling or damaging the currency of India
here Mr. Lewis has not done any damage to the Indian currency he has brough Gold from
foreign in India with no intention in mind to mislead the law.

Mohammed Aslam v. Union of India, 2021

In this case the court stated why gold will not be considered in other material in section 15 (1)
(a)(iiia) of UAPA.

“It does not include gold as the words employed in the Sub-clause specifically mention about
production or smuggling or circulation of high-quality counterfeit Indian paper currency or
coin and therefore gold cannot be grouped along with paper currency or coin even though
gold is a valuable substance and has a great potential to get converted into cash.”

In M. Kumar v/s Bharat Earth Movers Limited the Supreme court observed that “to
invoke the application of the Ejusdem Generis rule there must be' a distinct genus or
category. The specific words must apply not to different objects of the widely different
character but to something which can be called a class or kind of object; where this is lacking,
the rule will not apply and mention of single specie will not constitute a genus”.

To conclude I would say that Mr. Lewis would not be absolutely liable for the offence courts
may held him under strict liability and other material in terrorist act of UAPA does not
include GOLD. Mr. Lewis was not aware of the laws in India although, it is presumed that
everyone knows the law the country but sometimes mens rea is also taken into consideration
while deciding the liability of the respondent.
ANSWER TO QUESTION NUMBER

In this case entry to the old temple of Sri Gokuleshwar of Petha in Hasanpur was at question.
Who can enter? Who cannot enter?

Only people from Durwa Brahmin Community were allowed to enter the temple and no other
community was allowed to enter the temple therefore to open the temple for everyone the
state legislature made a statute to allow everyone to enter the temple

Temple Entry Authorisation Act 2016 of which section 3 (1) of the act stated
“Notwithstanding any law, custom or usage to the contrary, persons belonging to the
excluded classes shall be entitled to enter any Hindu temple and offer worship therein in the
same manner and to the same extent as Hindus in general; and no member of any excluded
class shall, by reason only of such entry or worship, whether before or after the
commencement of this Act, be deemed to have committed any actionable wrong or offence or
be sued or prosecuted therefor.”

The Durwa Brahmin Community was not happy with this and hence filed a petition stating
they have “right to manage its own affairs in matters of religion” Article 21 (b).

Here there is a conflict between two acts

 Article 21 of Indian constitution and

 Section 3 (I) of Temple Entry Authorisation Act 2016

Article 21 says everyone has “Freedom to manage religious affairs Subject to public order,
morality and health”.

With reference to this article the Durwa Brahmin Community is taking a defence that they
have freedom to manage their religious affairs and only Durwa Brahmin Community should
be allowed to enter the temple. But Section 3 (I) of Temple Entry Authorisation Act 2016
allows everyone to enter the temple.

The court in this case shall apply the doctrine of harmonious construction to decide the case.

Harmonious construction is a method of interpretation where in if two statutes are in conflict

with each other than the court should harmoniously decide which statue will prevail by
looking at the intention behind the purpose of statute. Statute which has a much broader
meaning will be considered. In the case where harmonising between the statutes is not
possible the court's decision will prevail.

The Supreme Court, on the application of the doctrine of harmonious construction to the
fundamental rights and directive principles of state policy, so as to give effect to both as
much as possible, made the following observation:

“Although in an earlier decision the court paid scant regard to the directives on the ground
that the courts had little to do with them since they were not justiciable or enforceable like the
fundamental rights, the duty of the court in relation to the directives came to be emphasized
in the later decision which reached its culmination in the Kesavananda Bharati case (1973)
laying down certain broad propositions. Law of these is that there is no disharmony between
the directives and the fundamental rights because they supplement each other on aiming at
the same goal of bringing about a social revolution and the establishment of a welfare state,
which is envisaged in the preamble. The courts, therefore, have, responsibility in so
interpreting the Constitution as to ensure implementation of the directives and to harmonise
the social objective underlying the directives with individual rights”.

Venkataramana Devaru v. State of Mysore (1957)

In this case, the trustees of an ancient, renowned temple of Sri Venkataramana filed a suit
under Section 92 of the Code of Civil Procedure, 1908 (CPC) against the exclusion of
Harijans from entering into Hindu temples after the passing of the Madras Temple Entry
Authorization Act (Madras V of 1947). The trustees made a representation to the Government
that the temple was a private one and founded exclusively for the Gowda Saraswath
Brahmins, and, therefore, outside the operation of the Madras Temple Entry Authorization
Act. However, the Government did not accept that position and held that the said Act applied
to the temple.

“The trustees argued that the temple was not defined under Section 2(2) of the Madras
Temple Entry Authorization Act and Section 3 of the Act was void because it was offensive
to Article 26(b) of the Constitution of India. The High Court of Madras passed a limited
decree in the favour of the appellants stating that although the public, in general, were
entitled to worship in a temple, the appellants had a right to exclude the general public during
certain ceremonies in which only the members of the Gowda Saraswath Brahmins alone were
entitled to participate. Dealing with the controversy that Section 3 of the Madras Temple
Entry Authorization Act was in violation of Article 26(b) of the Indian Constitution, the High
Court held that a denominational institution is also a public institution, Article 25(2)(b) of the
Constitution would apply, and therefore, all classes of Hindus were entitled to enter into the
temple for worship.

The Court further added that Article 25(1) of the Constitution deals with the rights of
individuals and Article 26(b) with the rights of religious denominations. However, Article
25(2) covers a much wider ground and controls both the Articles. Article 26(b) must,
therefore, be read keeping in mind Article 25(2)(b) of the Constitution.

The decision by the Supreme Court clarified the challenge in the interpretation of Section
2(2) and Section 3 of the Madras Temple Entry Authorisation Act (V of 1947) while also
laying clearly the concepts pertaining to the matter of religion and harmonisation of
irregularities arising at the time of interpretation of Article 25(2)(b) and Article 26(b) of the
Indian Constitution”.