() 2% wcylibrary.ccgnlud.or ‘About the project. Jurisdiction High Court Tracker Contact us a ( Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors. Seay 2017 -India Year Jurisdiction Law(s) 2017 India Article 14, Article 19, ad Article 21 of Constitution Bench Strength Case Type/Origin Case Status 9 Civil Wort Petition Not Overied Number of Opinion(s) Case Citation Aspect(s) of privacy 6 10.800 1, AIR 2017 SC.4161 Status as a Fundamental Right Case Brief ‘This case is the comerstone of the ‘Right to Privacy’ jurisprudence in India, The nine Judge Bench in this case unanimously reaffirmed the right to privacy as a fundamental right under the Constitution of India. The Court held that the right to privacy was integral to freedoms guaranteed across fundamental rights, and was an intrinsic aspect of dignity, autonomy and liberty. ‘The case began with the question of whether the right to privacy was a fundamental right, which was raised in 2015 in the arguments concerning the legal validity of the Aadhaar database. The Attorney General appearing for the State argued that the existence of the Tight to privacy as a fundamental right was in doubt in view of the two decisions in the cases of MP. Sharma vs. Satish Chandra, District Magistrate, Delhi ((1954) SCR 1077), tendered by an eight Judge Bench, and Kharak Singh vs. State of Uttar Pradesh ((1964) 1 SCR 332), rendered by a six Judge Bench. Both the cases, the State argued, contained observations that the Constitution did not specifically protect the right to privacy as a fundamental right. At the same time, several subsequent judgments over the years had recognised the right to privacy as a fundamental right. However, these subsequent decisions that affirmed the existence of the right to privacy were rendered by benches of a smaller strength than MP. Sharma and Kharak Singh. Due to issues relating to the precedential value of judgments and noting the far-reaching importance of the right to privacy, this case was referred to a nine Judge Bench of the ‘Supreme Court. ‘The Bench unanimously held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Patt ill of the Constitution’. In doing so, it overruled previous judgments of the ‘Supreme Court in M.P. Sharma and Kharak Singh, insofar as the latter held that the right to privacy was not recognised under the Indian Constitution. In addition to cementing the place of the right to privacy as a fundamental right, this case also laid down the need for the Implementation of a new law relating to data privacy, expanded the scope of privacy in personal spaces, and discussed privacy as an intrinsic value. "The right to privacy is inextricably bound up with all exercises of human liberty - both as it is specifically enumerated across Part Il, and as it is guaranteed in the residue under Article 21. it is distributed across the various articles in Part Ill and, mutatis ‘mutandis, takes the form of whichever of their enjoyment its violation curtails.” Case Summary Facts ‘This case was initiated through a petition filed by Justice K.S, Puttaswamy, a retired judge of the Kamataka High Court in relation to the Aadhaar Project, which was spearheaded by the Unique Identification Authority of India (UIDAI). The Aadhaar number was a 12- digit identification number Issued by the UIDAI to the residents of India. The Aadhaar project was linked with several welfare schemes, with a view to streamline the process of service delivery and remove false beneficiaries. The petition filed by Justice Puttaswamy was 2 case which sought to challenge the constitutional validity of the Aadhaar card scheme. Over time, other petitions challenging different aspects of Aadhaar were also referred to the Supreme Court In 2015, before a three Judge Bench of the Court, the norms for, and compilation of, demographic biomettic data by the government were questioned on the grounds of violation of the right to privacy. The Attorney General of India argued against the existence of the fundamental right to privacy based on the judgments in M.P Sharma and Kharak Singh, While addressing these challenges, the three Judge Bench took note of several decisions of the Supreme Court in which the right to privacy had been held to be a constitutionally Protected fundamental right. However, these subsequent decisions which affirmed the existence of a constitutionally protected right of privacy, were rendered by benches of a strength smaller than those in M.P. Sharma and Kharak Singh. The case was referred to a Constitution Bench to scrutinize the precedents laid down in M.P Sharma and Kharak Singh and the correctness of the subsequent decisions. On 18 July 2017, a Constitution Bench considered it appropriate that the issue be resolved by a bench of nine judges. Issue ‘A. Whether the right to privacy was a fundamental right under Part Ill of the Constitution of india, Arguments Tie Fiseporadarvts trail felled Wace: tha biceereritc in this mens et £s © Chcmee me wcll x:MP Sharma v Satish Chandra The case related to search and seizure of documents of some Dalmia group companies following investigations into its affairs. Following an FIR, the District Magistrate issued warrants, and searches were consequently conducted, In writ petitions before the Supreme Court, the constitutional validity of the searches was challenged on the grounds that they violated their fundamental rights under Articles 19(1)(f) and 20(3) — protection against self-incrimination. In M. P. Sharma vs. Satish Chandra, the 8-judge bench of the Supreme Court held that the drafters of the Constitution did not intend to subject the power of search and seizure to a fundamental right of privacy. They opined that the Constitution does not include language similar to the Fourth Amendment of the US Constitution, and found no justification to import the concept of a fundamental right to privacy in search-and-seizures, through what they called a ‘strained construction Kharak Singh v State of Uttar Pradesh The right to privacy was invoked in this case to challenge the surveillance of an accused person by the police, Kharak Singh was arrested for dacoity but was released due to a lack of evidence. The Uttar Pradesh Police subsequently brought him under surveillance, which was allowed under Chapter XX of the Uttar Pradesh Police Regulations. Kharak Singh then challenged the constitutional validity of Chapter XX and the powers it conferred upon police officials, as it violated fundamental rights under Article 19()\d) (right to freedom of movement) and Article 21 (protection of life and personal liberty). The 6-judge bench held that domiciliary visits at night was unconstitutional, but upheld the rest of the Regulations More importantly, the bench held that the right of privacy is not a guaranteed right under the Constitution.CrPC Section 54A Code of Criminal Procedure Home Prev Index Next G Select Language ¥ a= Tliek Clan for C; a 4A en S. 54A Identification of person arrested Description Where a person is arrested on a charge of committing an offence and his identification by any other person or persons is considered necessary for the purpose of investigation of such offence, the Court, having jurisdiction, may on the request of the officer in charge of a police station, direct the person so arrested to subject himself to identification by any person or persons in such manner as the Court may deem fit. Provided that, if the person identifying the person arrested is mentally or physically disabled, such process of identification shall take place under the supervision of a Judicial Magistrate who shall take appropriate steps to ensure that such person identifies the person arrested using methods that person is comfortable with: Provided Further that if the person identifying the person arrested is mentally or physically disabled, the identification process shall be video graphed.” " Criminal Law (Amendment) Act, 2013 rem area ate UV aCrPC Section 3114 Bs eel Nola alrattar ects Nie Home Prev Index Next r : = G Select Language ¥ 3A Omer oN S. SHA Power of Magistrat handwriting e to order person to give specimen signature or Description If a Magistrate of the first class is satisfied that, for the purposes of any investigation or proceeding under this Code, it is expedient to direct any person, including an accused person, to give specimen signatures or handwriting, he may make an order to that effect and in that case the person to whom the order relates shall be produced or shall attend at the time and place specified in such order and shall give his specimen signatures or handwriting; Provided that no order shall be made under this section unless the person has at some time been arrested in connection with such investigation or proceeding. Subject to any rules made by the State Government, any Criminal Court may, if it thinks Fit, order payment, on the part of Government, of the reasonable expenses of any complainant or witness attending for the purposes of any inquiry, trial or other proceeding before such Court under this Code. Coan a AC ana oa Da ea aeHome Prev Index Next G Select Language ¥ a: [orenredeves ea uate “ 2 Matches Use Google Search aca 5.53 Examination of accused by medical practitioner at the request of police officer Description () When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonable necessary in order to ascertain the Facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female isto be examined under this section, the examination shall be made only by. or under the supervision of, a female registered medical practitioner. More in Chapter V S.53A Examination of person accused of rape by medical practitioner Description (D. Whena person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his, person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. (2) The registered medical practitioner conducting such examination shall without delay, examine such person and prepare a report of his examination giving the following, particulars, namely: (i) the name and address of the accused and of the person by whom he was brought, (id) the age of the accused, (ii) marks of injury, i any. on the person of the accused, (iv) the description of material taken from the person of the accused for DNA profiling, and” ()_ other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at (4) The exact time of commencement and completion of the examination shall also be noted in the report. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part af the darctimante referred tn in clarice fa) af Sith-Sertinn (5) af that coctinn: III O <O A dent.manupatra.com CHAPTER 3 Information to police and their Powers to Investigate Chapters XI and XII of the Cr PC, 1973 cannot be said to be mutually exclusive. Chapter XII deals with “information to the police and their powers to investigate’, It prescribes the procedure for investigation. But this investigation is not confined to cognizable offences only, It may be restored to in non- cognizable offences under section 155 or in case of no crime at all, e.g.. unnatural death as under section 174. ‘Investigation usually starts on information relating to the commission of an offence given to an officer-in-charge of a police station and recorded under section 154 of the Cr PC. If, from the information 80 received or otherwise, the officer-in-charge of the police station has reason to suspect the commission of an offence, he, or some other subordinate officer deputed by him, has to proceed to the spot to investigate the facts and circumstances of the case and if necessary, to take measures for the discovery and arrest of the offender. According to the scheme of the Code, investigation is a normal preliminary to an accused being put up for trial for a cognizable offence (except when the Magistrate takes cognizance otherwise than on a police report in which he has the power under section 202 to order investigation if he thinks fit), Therefore, it is clear that when the legislature made the offences in an act cognizable, prior investigation by the appropriate police officer was contemplated as the normal preliminary to the trial in respect of such offences under the Code. Thus, investigation primarily consists in the ascertainment of the facts and circumstances of the case. According to section 2(h) of the Cr PO, 1973, ‘investigation’ includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf.=a About the project Jurisdiction = High Court Tracker = Contact us ‘The Supreme Court in this case considered the constitutionality of various evidence gathering techniques including narcoanalysis, BEAP (Brain Electrical Activation Profile) or ‘brain mapping’, and polygraph tests. The Court ruled that the use of such neuroscientific Investigative techniques constituted testimonial compulsion and violated an accused person's right against self-incrimination under Article 20(3), and their right to life and personal liberty under Article 21 of the Constitution ‘The Court held that the protection against selfincrimination under Article 20(3) of the Constitution would have to be read considering the multiple dimensions of personal liberty under Article 21 such as the right to a fair trial and substantive due process. It also held that this would be applicable to the accused, suspects and witnesses, and would not be confined to the courtroom, but wauld be applicable in all cases where the charge may end in a prosecution. ‘The Court, after tracing the jurisprudence of the right to privacy in India discussed the importance of mental privacy and the choice to ‘speak or stay silent, as well as their intersection with personal autonomy as aspects of the right to privacy. The Court observed that the right to privacy under Article 21 should account for interaction with Article 20(3), the right against self-incrimination. The Court further held that drug induced revelations and measurement of physiological responses would amount to an intrusion into the mental privacy of the subject and that forcible extraction of testimonial responses was not provided for under any statute and could not be a reasonable exercise of policing functions, The Court therefore ordered that these tests could not be administered without the valid consent of the accused. "We must recognise the importance of personal autonomy in aspects such as the choice between remaining silent and speaking. ‘An individual's decision to make a statement is the product of a private choice and there should be no scope for any other {individual to interfere with such autonomy, especially in circumstances where the person faces exposure to criminal charges or penalties." Case Summary Facts In this case, the Supreme Court allowed a special leave petition in the context of cases where objections were raised where the accused, suspects and witnesses in the investigation were subjected to neuro-scientific tests without their consent. The Court considered the constitutionality of the usage of neuro-scientific tests to gather evidence, including narcoanalysis, BEAP or ‘brain mapping’, and polygraph tests. The polygraph test measures the physiological responses including respiration, blood pressure, pulse and galvanle skin resistance to measure lying or deception. The narcoanalysis test involves the intravenous administration of the drug sodlum pentothal, which causes @ hypnotic trance allowing a subject to become less inhibited. The BEAP measures activity in the brain in response to selected stimuli, to determine if the subject is familiar with certain information. ‘A Whether the involuntary administration of the impugned techniques violated the ‘ight against self-incrimination’ enumerated in Article 20(3) of the Constitution; and B, Whether the involuntary administration of the impugned techniques was a reasonable restriction on ‘personal liberty’ as understood In the context of Article 21 of the Constitution. Arguments The Petitioners submitted that the involuntary administration of neuro-scientific techniques violated the ‘right against self incrimination’ under Article 20(3) for those compelled to use them. The Petitioners raised arguments invoking the guarantee of ‘substantive due process’ as an extension of ‘personal liberty’ protected by Article 21. The Petitioners also argued that the ambit of Article 21 includes a right against cruel, inhurnan or degrading treatment, and that the involuntary administration of the impugned techniques would violate such rights. Finally, they also raised the issue of the test subjects’ right to both physical and mental privacy, and argued that the techniques in question would violate the same. In relation to the tests themselves, the Petitioners argued that the tests were not scientifically valid but were only confirmatory and that evidence gathered through them could not be relied upon. They placed reliance on empirical studies which cast doubt on the rellabilty of evidence obtained through these mechanisms. ‘The Respondents argued that usage of such tests was important for extracting information which could help the investigating agencies prevent criminal activities and gather evidence. They also argued that administering the tests did not cause any bodily harm and that the information was used only for investigation and not as evidence during the trial stage. Decision The Court first assessed in detail the evolution and specific uses of the impugned techniques, including thelr usage within the criminal Justice system, foreign jurisprudence regarding thetr usage, and the limitations of these techniques. The Court then analysed the right against self-ncrimination, and held that the compulsory administration of neuroscientifc tests, ‘amounted to testimonial compulsion and violated the rule against self-incrimination guaranteed under Article 20(3). The Court held that in addition to the standard under Article 20(3), the compulsory administration of such neuroscientific tests would also have to meet the standard of substantive due process’ for placing restraints on personal liberty. The Court noted that the purpose of the right ‘against self incrimination was to ensure that testimony considered during trial was reliable, since involuntary statements were more likely o be inaccurate, while also violating the dignity and integrity of the person. The Court stated that "(t)he interrelationship between the ‘right against self- incrimination’ and the ‘right to fair tri! has been recognised in most jurisdictions as well as international human rights instruments”. In India, Menteka Gandhi vs. Union of India ((1978) 7 SCC 248) held while considering Article 20(3), that the right against self-incrimination should be construed with due regard for the inter-elationship between rights, namely the various dimensions of the right to personal liberty under Article 21, such as the right to fair trial and substantive due process. III O <Unlocking The Protection Of Article 20(3): Case Note On State Of Bombay V, Kathi Kalu Oghad Unlocking the Protection of Article 20(3): Case Note on State of Bombay V. Kathi Kalu Oghad ‘opal Mital here gives us a case note on State of Bombay v. Kathi Kalu Oghad is the landmark case which decided the scope of eing a witness against oneself. The author also analysed the doctrine of forgone conclusion and its applicability in the Indian ‘ontext. Abstract state of Bombay v. Kathi Kalu Oghad is the landmark case which decided the scope of being a witness against oneself. Being a vitness against oneself was limited to information given from personal knowledge. Provision of physical specimen like fingerprin vas squarely excluded from the protection of Article 20(3) by the Supreme Court in Oghad. The right against self-incrimination is he most important right of an accused. Personal electronic devices today are used to store a tot of crucial information. With the idvancement of technology, personal electronic devices can now be accessed through fingerprints and facial recognition. This yresents new challenges in the context of criminal investigation and gathering of evidence from the device of an accused. This papé imalyses whether Oghad holds up in the face of new technological challenges of accessing personal devices through physical ittributes. To support its examination, it also looks at the recent case of Virendra Khanna v. State of Karnataka and Another, This paper argues that both passwords and biometrics (like fingerprints and face recognition) are protected under Article 20(3) of the Indian Constitution. It shows that the requirements for invoking the protection of Article 20(3) are satisfied. It also highlights the dated nature of Oghad and advocates that the issues posed by Oghad can be solved by relying on Selvi v. State of Karnataka. It also draws attention to the minority judgement in Oghad and the purpose of Article 20(3) in a criminal investigation to further strengthen its argument. The paper also disctissed the doctrine of forgone conclusion and its applicability in the Indian context.VERSION 1 VERSION 2 SUMMARY Article 14, Draft Constitution of India 1948 (2) No person shall be convicted of an force at the time of the commission o subjected to ly offence except for violation of a Jaw in f the act charged as an offence, nor be a penalty greater than that which might have been inflicted under the law at the time of the commission of the offence. (2) No person shall be punished for the same offence more than once. (3) No person accused of any offence sh ‘all be compelled to be a witness against himself. Article 20, Constitution of India 1950 (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 ch: subjected to a penalty greater than that which m the | arged as an offence, nor be ight have been inflicted under jaw in force at the time of the commission of the offence, (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence sha Il be compelled to be a witness against himself. Draft Article 14 (Article 20) was debated on 2, 3and 6 December 1948. It offered certain protections relating to conviction for criminal offences. One member proposed to replace the word ‘law with the phrase ‘laws in force’. He reasoned that the meaning of the phrase ‘laws in force’, as decided by the explanation to Draft Article 302 (Article 372) meant that it was more appropriate. The Assembly accepted this amendment. A member of the Drafting Committee proposed to amend the Draft Article to expand its scope to the prosecution of individuals, rather than just punishment. He argued that if, for instance, a government official was subject to disciplinary proceedings for an act, they should not be prosecuted by the Court for the same offence and vice versa, This amendment was also adopted, Another member wanted to include a new clause which protected individuals against ‘unreasonable searches and seizures’, similar to provisions in the American, Irish, and German Constitutions. Although several members. supported this amendment, it was rejected. by the Assembly. Other amendments were negatived. The amended Draft Article was adopted on 6 December 1948,We'd like to show you notifications for the latest news and updates. pane! | iow | Part | of this Article dwelt into the origins of the concept of non-arbitrariness through various judgments delivered in the decades of 1950s and 1960s. It discussed the ripening of the said jurisprudence up to the judgment of EP. Royappa v. State of TN. Eventually, whilst referring to various judgments, specifically the judgment of the Supreme Court In KR. Lakshmanan v. State of T.N.", to deduce that the sword of non-arbitrariness can be swung for invalidating not only the executive action, but also the legislative one. Part | thus, left the remaining discourse to be covered by the present part of this article, which shall be elucidating upon distortion of the applicability of arbitrariness for invalidating legistative action in the judgment of State of AP. v. McDowell & Co.'"! How post distortion in McDowell), the Supreme Court did a systemic course correction in Shayara Bano v. Union of india’! and settled the chequered legal position holding the ground today. The article shall also delve into "time as a testing criteria” for examining the validity or invalidity of the legislation on the altar of Article 14 and the initial view of the Indian judiciary on the same. WEB EDITION eee Ey Le Distortion in McDowell and its Resurrection in Shayara Bano In State of AP. v. McDowell & Co.!, constitutional validity of certain provisions of Andhra Pradesh Liquor Prohibition (Amendment) Act, 1995 were assailed by the manufacturers of intoxicating liquor. The challenge relating to Article 14 and arbitrariness of the amending provisions was mounted essentially on the ground that though there was an absolute prohibition under the enactment, the exempted categories were allowed to consume intoxicated liquor in Andhra Pradesh. Thus the real purpose of imposing @ total prohibition within the territories of Andhra Pradesh stood defeated by provisions relating to exemption of specified categories of manufacturers and consumers of liquor, which was pitched to be completely arbitrary. It was argued that roots of Articie 14 were traceable to the Federal Constitution of the United States of America, wherein the power of the Parliament/State Legislature to make the laws is delimited by the Bill of Rights. The 3Judge Bench of the Supreme Court vide para 43'”! onwards held that only two grounds are available for striking down any legislation/iegisiative action viz. “lack of legislative competence" or “Violation of any fundamental right under Part ill of the Constitution of India" or any other constitutional provision, or both. The Court further held that the ground of invalidation must fall within four corners of the wordings of Article 14, then only can it be struck down. In the context of Article 19(1), it was held that parliamentary/State legislation can be struck down only if itis found to be not saved by any of clauses (2) to (6) of Article 19. The Court in clear and categorical terms held that no enactment can be struck down merely on the argument that it Is “arbitrary” or “unreasonable”, but there has to be some other tangible constitutional infirmity to be found before the legislation is declared unconstitutional. The Supreme Court vide para 46 held that applicability of arbitrariness as a ground for invalidating any legislation is confined only to legislative actions and no opinion was expressed insofar as its applicabllity to delegated legislation Is concerned. The Court held that any act which |s discriminatory can easily be labelled as arbitrary, but the reverse synthesis is not permissible. Accordingly, the Court repelled the challenge to the constitutionality of the AP. Prohibition Act, on the specific anvil of the arbitrariness under Article 14 of the Constitution of India. Thus, the judgment of McDowell[3) was essentially a clear distortion from the linear reasoning being adopted prior to it of legislations being invalidated if found “arbitrary” per se, The Supreme Court in McDowell case(9) thus completely shut the doors to entertain any argument of arbitrariness for assailing any legislative enactment. Pertinently, McDowell case{ 10] had in its enthusiastic bid to hold or limit the applicability of arbitrariness doctrine to legislative enactments ignored its own binding decisions delivered prior in point of time. The first one being the Constitution Bench Judgment in Ajay Hasia v. Khalid Mujil Sehravardi"" by a larger Bench and the second one being the Coordinate 3-Judge Bench Judgment in KR, Lakshmanant 2} Besides the line of reasoning adopted by the three-judge Bench in McDowell case{13) was that American Courts have discouraged and dissuaded the employment of "substantive due process” for scrutinising and invalidating legislative actions in the US. Therefore the Court should not sit over the wisdom of the legislature and employ “substantive due process” to strike down legislative provisions. This reasoning was completely flawed as by this time, Maneka Gandhi v. Union of india‘! and its legacy had come to occupy the field with Articles 21, and 14 imbued with the spirit of substantive due process getting Interconnected and interlinked with “reasonableness” under Article 19. This was said in so many words by Justice Krishna iyer in the celebrated Judgment of Sunil Batra v, Dethi Admn.'"!, wherein the Court categorically held that Section 21 encompasses substantive due process and fairness also as a ground for testing any executive decision. Vide para 52, the Supreme Court in Sunil Batra( 5) speaking through Justice Krishna lyer held thus: 52. True, our Constitution has no “due process" clause or the Vill Amendment; but, in this branch of law, after Rustom Cavasjee Cooper v. Union of India[17] and Maneka Gandh{18), the consequence is the same. For what is punitively ‘outrageous, scandalisingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Articles 14 and 19 and if inflicted with procedural unfairness, falls foul of Article 21. Part Il of the Constitution does not part company with the prisoner at the gates, and judicial oversight protects the prisoner's shrunken fundamental rights, if flouted, frowned upon or frozen by the prison authority. Is a person under death sentence or undertrial unilaterally dubbed dangerous liable to suffer extra torment too deep for tears? Emphatically no, lest social justice, dignity of the individual, equality before the law, procedure established by law and the seven lamps of freedom (Article 19) become chimerical constitutional claptrap. Judges, even within a prison setting, are the real, though1950s and 1960s. It discussed the ripening of the said jurisprudence up to the judgment of E.P. Royappa v. State of TN! Eventually, whilst referring to various judgments, specifically the judgment of the Supreme Court in K.R. Lakshmanan v. State of TN 2] to deduce that the sword of non-arbitrariness can be swung for invalidating not only the executive action, but also the legislative one. Part I thus, left the remaining discourse to be covered by the present part of this article, which shall be elucidating upon distortion of the applicability of arbitrariness for invalidating legislative action in the judgment of State of A.P. v. McDowell & Co.8] How post distortion in McDowell[4], the Supreme Court did a systemic course correction in Shayara Bano v. Union of IndialS! and settled the chequered legal position holding the ground today. The article shall also delve into “time as a testing criteria” for examining the validity or invalidity of the legislation on the altar of Article 14 and the initial view of the Indian judiciary on the same.under clauses (a) to (g) of that Rule - comprehensive rule which deals with the specific situations where Out-of-Tum Allotment is permissible - The Allotment Rules and the guidelines are intended to contro! the exercise of discretion by the authorities concerned in granting Out-of- Tum Allotments — in the instant case, the absolute restriction on Out-of-Turn Allotments imposed by the Single Judge of the High Court was not just and fair and was opposed to the statutory provisions of the Allotment Rules — Therefore, such a restriction is not sustainable. 1.8 - Interpretation of — Held: The purpose of r.8 is not to allow discretionary allotment but is to provide overall powers of coordination and control to the Administrator, U.T., Chandigarh — The words ‘for the purposes of allotment to any class or category of eligible government servant’ appearing in .8 mean the allotment made in terms of the Allotment Rules — Adding or withdrawing houses to the general pool is @ power vested in the authority under r.8, but allotments still are to be made in accordance with the substantive rules enabling the authorities to make regular allotments. 1.9 — Objections regarding allotment of accommodation — Held: r.9 requires the authorities to invite applications for allotment of accommodation and also provides the manner in which the allotment of houses is to be made including showing the seniority of the applicants category-wise — There is no provision requiring invitation of objections — Once there is no rule, it will not serve any fruitful purpose to invite objections to each allotment apart from unnecessarily delaying allotments and rendering the working of the Rules ASHA SHARMA v. CHANDIGARH ADMINISTRATION 885 AND ORS. for long periods because of excessive invocation of such discretionary powers — The provision is unguided and arbitrary and cannot stand the scrutiny of law — More so, the licence fee indicated is obviously minimal in comparison to the market rent for the said premises — It is a matter which a Court can safely take judicial notice of - Compelled by these circumstances, r.13(5) is not sustainable and the authorities are directed not to take recourse to the said provision under any circumstance — No case of retention of government accommodation beyond the periods specified in the table to .13(2) shall be entertained by any authority under the Allotment Rules — The directions are passed being conscious of the fact that the Allotment Rules are in place and that the authorities are acting fairly and judiciously. Allotment of accommodation — Duty of authorities — Held: The authorities are expected to be consistent in their decisions and bring certainty to the Allotment Rules ~ This can only be done by making fair, judicious and reasoned decisions on the one hand and refraining from amending the Allotment Rules except in exceptional and extraordinary circumstances on the other - The Doctrine of Certainty can appropriately be applied to legislative powers as it is applicable to judicial pronouncements — This would not mean that the power of the Legislature to amend rules is restricted by judicial pronouncements — But it is impressed upon the Legislature that the rules of the present kind should not be amended so frequently that no established practice or settled impression may be formed in the minds of the employees - Where the employer has limited resources, there the employee has a Jegitimate expectation of being dealt with fairly in relation to allotment to such government accommodation. Administrative law: Decision making process — Arbitrariness in — Held: Whenever both the decision making process and the decision taken are based on irrelevant facts, while ignoring relevant II O nt single off in some retention promotec said issu! that an o Mohali ai accomm¢ houses, ‘ transferr areas ~ I the State servant - allotment should bé exceptior 113 A gover accomm permissil servant k vacate #/ employn question compreh time for z allotted tc large nui awaiting | 886 SL considers ‘arbitrary but prop conclusi arbitrarin reasoning the scop objectivit the pre-r Polic Governm policy de the preve strike dou because fair or wi to gover could pot fair anc accomm Governm and, ther qua non employe: servant } (Chandig 1996. State Held: C circumsta in exercis of India | Article 14 — The St can remd