Misuse of President's rule in India

Federalism is the key strength of constitution and government structure in India.While drafting the constitution the word “union” was chosen rather than the word “federation”just to show that the people may be divided into different states for convenience of administration but the country is one integral whole, its people a single people living under a single imperium derived from a single source.[1] But there are many ways of transforming a federal system into a unitary one, the simplest way is by proclaiming emergency. Even after including federalism in a part of basic structure[2], the central government by taking unfair benefit under part XVIII of the Indian Constitution has violated the basic structure of the government administration. One of the provisions included in this part is state emergency, Articles 356 and 357 of the Constitution offer certain measures for dealing with a condition that arises from a state's constitutional machinery failing.[3]

In this article we will discuss about the provisions of state emergency and instances of misuse and what is the Supreme Court’s perspective on this.

FAILURE OF CONSTITUTIONAL MACHINERY IN STATE

In the words of Dr. Bhim Rao Ambedkar “such articles will never be called into operation and that they would remain a dead letter.”[4]Even after the constitution makers declared it a dead letter, the central government has repeatedly used and abused it in their own favor. Article 356 provides for proclamation of state emergency on the satisfaction of president on the drastic situation of state where it can be functioned according to law.

CONTROVERSY OVER INCLUSION OF “OTHERWISE”

Article 356 includes proclamation on the basis of “governor’s report”on failure of state administration to the president’s or “otherwise”.[5] H.V. Kamath, an Indian Politician has criticized the word ‘otherwise’ and said only god knows what this ‘otherwise’ means.[6]

What happens, however, if the Governor declines to recommend initiative under Article 356? Because of these circumstances, the framers of the constitution added the words “or otherwise” to Article 356(1). As also stated by Dr. B.R. Ambedkar that:

“We must give liberty to the President to act even when there is no report by the Governor and when the President has got certain facts within his knowledge on which he thinks fit to act in the fulfilment of his duty”.[7]

As also stated by Supreme Court that “whenever the said satisfaction is required of the President or the Governor, it should be in the constitutional sense and not otherwise”.[8]

So, from the above discussion, it can be concluded that the inclusion of “otherwise” is necessary but due to inclusion of this particular word it is on the sole discretion of the president who,under article 74 of Indian Constitution, act on the advice of the council of ministers to impose state emergency under article 356 or not.

NO DEFINITE BOUNDARIES

As discussed in the previous topic, it is on the sole discretion of the government to invoke article 356 in a state or not. It has no definite boundaries like mentioned in Article 352 other than moral conscience of the bench.

While Article 352 can only be invoked in three cases of war, external aggression, or armed rebellion, Article 356 applies at any time when constitutional machinery collapses in a state in number of ways, including political breakdown in the state, the inability of a stable ministry to hold public office, the breakdown of law and order, corruption or misuse of its authority,subversion of constitution or of the democratic social fabric, etc.[9]

D.D. Basu made the distinction as one being the response to the existence of state and other being response to the dissolution of constitutional machinery in a state.[10]

Article 356 has given wide scope in order to maintain law and order situation in a state but the central government has molded it to take advantage and remove the rule of opposite party government sometimes in some states.

INSTANCES OF USE AND MISUSE

Article 356 has been misused several of times like in 2002 the president’s rule imposed in the state of Uttar Pradesh on the report of the governor, who didn’t even pay heed to the actual situation going in UP. Other similar instances arisein 1953 in Pepsu, in 1954 in Andhra,in 1951 in Punjab, in 1956 in Travancore-Cochin and in 1961 in Orissa, in all these situations Governor of the respective state on unreliable sources and without taking into consideration the actual situation of state made its report and the president based on that report, imposed state emergency.[11]

Another dramatic instance happened in 1977, after the 1975 emergency people’s anger came out and congress lost the general election and overtaken by the Janata Party, which later dissolved all congress ruled state at that time under President’s rule. History repeated itself in 1980 where congress again emerged as the majority and dismissed the Janata government from 9 states under article 356. These proclamations were highly questioned as they were not based on any Governor’s report as also observed by Sarkaria commission that -

“these all cases are typical instances of wholesale misuse of article 356 for political purposes, extraneous to the one for which the power has been conferred by the constitution”[12]

Wade and Forsyth[13] also criticizes the political nature of the decision making where courts are incapable of taking any cognizance of misuse of power.

Untilthe year 2000, article 356 has been invoked as many as 100 times. In present day, it seems difficult to use the power under article 356 as the NDA government enjoys majority in the LokSabha but lacks the majority in Rajya Sabha.

JUSTICIABILITY OF THE PROCLAMATION UNDER ARTICLE 356

Judicial review under article 356 was first came up under consideration in KK Aboo v. UOI, where thewrit petition challenging the center's proclamation was dismissed by the Kerala High Court.[14]Again, in Rao Birinder Singh v. The Union of India, the court ruled that it has no jurisdiction to question president’s satisfaction and don’t even have authority to make him disclose the material on which he formed his satisfaction.[15] In Jyotirmoy Bose v Union of India, the Calcutta High Court rejected writ petition challenging president’s proclamation issued under article 356. The court also rejected the contention of petitioner that president should act on his own discretion and not on the advice of council of ministers while proclamation of emergency.[16]

Bijayananda Patnaik v President of India[17] is anextremely informative decision on article 356 given by Orissa High Court, where the court ruled that the governor must act independently, not with the assistance and advice of the ministers, when sending his report to the president.  And that report cannot be challenged in a court of law, whether it is false or based on fictitious evidence.Because of the governor's immunity under Article 361(1) of the Constitution, it is not justiciable.[18]

The court also recommended that, upon the collapse of the ministry, the governor should ask the opposition leader to form the government. also, the governor should not be concerned with whether or not the opposition government will be stable in the future.[19]

The Andhra Pradesh High Court also asserted that the satisfaction of the presidentwas not a justiciable matter.[20] (Para 15).

The matter of doubt was cleared by the Constitution (thirty-eighth Amendment) Act, 1975, which declared that the ‘satisfaction’ of president “shall be final and conclusive and shall not be questioned in any court on any ground”.[21]However, the constitution's Forty-fourth Amendment later repealed this provision.

RAJASTHAN V. INDIA[22]

The matter was heard by a seven-judge constitutional bench after the State of Rajasthan (along with several other states) filed an original suit under Article 131 challenging the Union of India's invocation of Article 356 in these states. The court's general stance is that it will not intervene with the center's exercise of power under article 356 solely because it encompasses "political and executive policy and expediency unless any constitutional provision was being violated."[23]

And, under article 356(5), the court cannot investigate or challenge the president's satisfaction on any basis unless and until it is shown that the president used "patent abuse of this clause or an excess of authority on admitted facts" on grossly perverse and irrational grounds.[24]

Bhagwati J, emphasizedthat –

“The satisfaction of President under article 356 is ‘subjective and cannot be tested by reference to any objective test’ or by ‘judicial review’. But if it can be shown that there is no satisfaction of the president at all, the exercise of the power under article 356(1) would be constitutionally invalid”.[25]

Most of the justices said that if the satisfaction is not genuine or is based on completely irrelevant and superfluous grounds, the court has authority to investigate it because there would be no satisfaction of the president in the matter in which he is expected to be satisfied.

SR BOMMAI[26]

The great significance of this case can be gauged from the fact that the Supreme Court had to decide the validity of six promulgation issued in six different state arising due different scenario’s ranging from ram janmbhoomi-babri demolition to defection of ministers.

Seven opinions were rendered by a nine-judge bench that considered the different issues raised in these cases. On the basis of the judges' consensus, the following key propositions can be stated:

The majority of chief minister in the house will be determined on the floor of the house, not in governor’s chamber overruling the Karnataka High Court’s order in the Bommai case.[27]

Rather than blatantly writing the letter to the president, the governor should first try to explore the possibility of establishing an alternative ministry.[28]

The president should declare a state of emergency based on some material evidence that the state government cannot function in accordance with the law. The validity of content can also be challenged in court.[29]

The satisfaction cannot be challenged if based on such valid material.

The legislative assembly's dissolution is not an inevitable or mandatory result of the proclamation's issuance. It can only be used when it is absolutely necessary to accomplish the proclamation's goal. Article 356(3) makes it illegal to dissolve the assembly until the parliament approves the proclamation.[30]

If the proclamation is declared unconstitutional by the court notwithstanding the parliament's approval, the president's decision is rendered null and void.[31]

In Bommai, the Supreme Court, by showing its judicial creativity, aims to promote a set of fundamental constitutional principles like parliamentary system, secularism, federalism and control over the executive.

The court stated that power conferred under article 356 is not an absolute power but a conditioned power. The court went on to say that a state government may enjoy a majority in the assembly, but if it subverts the basic value of secularism, it can be dismissed under Article 356(1).[32]

(Vishal Singh is 2nd year student of Rajiv Gandhi National University of law, Patiala)

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[1]HinsaVirodhak Sangh v. Mirzapur Moti JureshJamat, (2008) 5 SCC 33.

[2]Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

[3]Shetty, President’s Power under Article 356 of the Constitution-Theory and Practice, in ILI, Constitutional Developments Since Independence, 335 (1975), ILI, President’s Rule in the States; Report of the Sarkaria Commission.

[4]Constitutional Assembly Debates, India, available at: http://loksabhaph.nic.in/writereaddata/cadebatefiles/C04081949.html. (Visited on April 28, 2021).

[5]The Constitution of India, art. 356.

[6]Dr Ambedkar and Article 356 of the Constitution by T.K. Tope, (1993) 4 SCC J-1.

[7]Competency of Judiciary to advise the President by T.C.A. Ramanujam and T.C.A. Sangeetha, (1998) 6 SCC J-7.

[8]Shamsher Singh v. State of Punjab and Anr., (1974) 2 SCC 831.

[9]M.P. Jain, Indian Constitutional Law 742 (LexisNexis, Haryana, 8^th edn., 2020).

[10]DD Basu, Commentary on the Constitution of India, (LexisNexis, 8^th edn., 2011).

[11]Supra Note 9.

[12]Report, 175, pg. 18.

[13]Wade William and Christopher Forsyth, Administrative Law, 420-421, (Oxford University Press, England, 9^th ed.).

[14]KK Aboo v. UOI, AIR 1965 Ker 229.

[15]Rao Birinder Singh v. The Union of India and Ors., AIR 1968 P&H 441.

[16]Jyotirmoy Bose v Union of India, AIR 1971 Cal 122.

[17]Bijayanand v President of India,AIR 1974 Ori 52.

[18]Ibid, at 15.

[19]Ibid, at 25.

[20]Re A Sreeramulu, AIR 1974 AP 106.

[21]the Constitution (thirty-eighth Amendment) Act, 1975.

[22]State of Rajasthan v. Union of India, AIR 1977 SC 1361.

[23]Ibid, at 28.

[24]Ibid, at 7.

[25]Ibid, at 10-11.

[26]S.R. Bommai and Ors. V. Union of India and Ors., (1994) 3 SCC 1.

[27]Ibid, at 127-128.

[28]Ibid, at 277.

[29]Ibid, at 2.

[30]Ibid, at 48.

[31]Ibid, at 124.

[32]Ibid, at 219. 

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Taking Live-In Relationships Seriously: Courts Must Defend Liberties Rather Than Adjudging Morality

 

In the words of Granville Austin, the Constituent Assembly envisaged the Indian Judiciary as a bastion of rights and justice. However, recent string of orders from the Punjab and Haryana High Court reflectthe court’s tendency to relinquish their constitutionally mandated role, in favor of acting as a guardian of ‘public morality’ and ‘social fabric’ of society. The court on May 18, 2021, in a rather injudicious order, declined to grant protection to a couple who were apprehending danger from their parents. To add insult to injury, the court further went ahead to comment that the couple, under the garb of this protection petition, are seeking seal of approval on their live-in relationship which is morally and socially not acceptable. The court, in assuming that it is them who possess this imaginary authority to grant approval of relationships, has committed two blatant blunders: Firstly, it places social and moral acceptance of a practice over Article 21 protection of right to life and personal liberty that encompasses the right to live with a partner of one’s choice as a necessary coincident of liberty guaranteed under this article of the Indian Constitution. Secondly, the high court, exceeded its authority by exhibiting flagrant disregard to the Supreme Court of India as the apex court has, on numerous occasions, held the practice of live-in relationships to be within the bounds of law of this land, irrespective of how immoral the society may consider it to be. Nevertheless, even if the Supreme Court had not adjudged the issue, the fact that live-in relationships are not legislatively illegal, makes this absurd preference by the court of social and moral acceptance of live-in relationships over the constitutionally granted fundamental right of life and liberty, a mammoth infelicitous debacle. Having said this, it is not intended to state that had there been a legislation prohibiting live-in relationships, the orders of the court could have been tenable because in that eventuality, the constitutionality of that specific legislation would itself have been under the scanner by the Supreme Court as it would violate multiple facets of the Article 21 right viz. right to privacy, bodily autonomy, cohabitation, life and personal liberty.
 
As regrettable as it may appear, this order is not a one-off incident as the Punjab and Haryana High Court itself on May 12, 2021, passed another order wherein the court similarly declined to grant protection to a live-in couple stating that if such protection is granted, the entire social fabric of the society would get disturbed. The court rooted it’s reasoning for declining protection to the couple in the fact that the first petitioner was barely 18 and the other was only 21. If this order is indeed rightly reasoned, the court must go ahead and register a sou motu case against all the constitutional law professors of this country, for being so negligent in executing their duties that they forgot to teach us that our fundamental rights granted by the constitution are dependent upon the age or employability of a petitioner.Nevertheless, from what the Supreme Court of India has held, it can be authoritatively stated that Article 21 protection of right to life and personal liberty is not dependent upon any parameter (not even citizenship) or contingent upon any other right, leave alone public morality, social acceptance or social fabric of society. Notably, no other fundamental right, other than Article 25 and 26 (right to freedom of religion, which is subject to public order, morality, health and other fundamental rights) is dependent upon any moral or social acceptance requirement. People derive their right to equality and right to life and liberty from the constitution and it is the mandatory job of the courts to protect these rights from violation and not to impute intentions to petitioners or pass diktats perpetuating a view that smacks of antediluvian Victorian morality.
 
It is indeed despicable that a discussion on dispensation of legal rights of citizens, has such an inflated rate of bombardment of phrases like ‘public morality’ and ‘social acceptance’. As unfortunate as it may be, this begs the question that should judges be influenced by something as fluid and subjective as popular morality? The courts cannot hold an otherwise unconstitutional act to be constitutional because it is in consonance with the morality of the public.Consequently, the Punjab and Haryana High Court has erred in these orders by giving weightage to an abstract and unnecessary parameter of “public morality” in a proceeding that should have only considered the fact that the petitioners have a certain right to protection and no amount of public outrage should be able to jeopardize this constitutional right. If the court must worry about morality, it is Constitutional Morality that they should concern themselves with rather than public morality. Hon’ble Justice Chandrachud, in his Section 377 judgement, held that constitutional morality requires that the “right of an individual ought not to be prejudiced by popular notions of society”. He further stated that constitutional morality “reflects that the ideal of justice is an overriding factor in the struggle for existence over any other notion of social acceptance”. Chief Justice Dipak Misra (as he then was) along with Justice Khanwilkar and Justice Chandrachud held that the goal of the court is to “transform society”, or, in other words,“convert public morality into constitutional morality”. However, what the Punjab and Haryana High Court has done is that, in stark contrast to Supreme Court’s judgement, it has converted constitutional morality into public morality and this, in the words of Hon’ble Justice Nariman“is not open for a constitutional court to substitute societal morality with constitutional morality”. The Supreme Court, in the Sabarimala Judgment, has even held that the word “morality” contained in the restrictions of Article 25 and 26 mean constitutional morality and not public morality. It is evident that even when the constitution subjects a right to “morality”, it refers to constitutional morality and not the morality of the specific judge or public at large.  Therefore, in such cases that have no restriction of “morality” mentioned in the constitution, it is injudicious of the courts to start reading in the requirements of public morality and social acceptance into the rights-based framework of the Indian Republic.
 
A parallel can be drawn between the handling of these cases by the High Court and the Supreme Court’s Ayodhya Verdict which received scathing criticism from eminent constitutional scholars for prioritizing “public peace and tranquility” rather than dispensing justice. By extension, it would mean that the court’s decision in the Ayodhya matter could have been different if they were of the opinion that a different decision would bring more public peace and tranquility in the society. Justice, seems to take the back seat in such calculations. The High Court’s handling of the present issues seems to be suffering from the same misplaced priority conundrum wherein it has prioritized public morality and social fabric of society over the constitutional rights that the people have. By extrapolation, one is tempted to think that would the decision of the court have been different if the practice of live-in relationships were socially acceptable in our society? At this juncture, it must be reiterated that the duty of the courts is to protect the rights of individuals from being violated rather than focus on maintaining peace or protecting the supposed social fabric of the society.Moreover, the link between a live-in relationship and the moral fabric of society is itself non-existent and if, in the esteemed opinion of the ever-righteous court, the moral fabric of our society does get disturbed by two heterosexual consenting individuals living together in their own private space, one needs to re-evaluate the utility of having such puritanical social fabric in our livesto begin with.
 
The process of adjudication of cases, is mostly an exercise in balancing out contested rights of opposing parties. In a conflict of rights, the court examines the contestations between the parties and favors the more legitimate right. In the present cases, the rights in conflict are the constitutional right to life and personal liberty of the couples versus the imaginary non-existent right of the Indian parents to control the lives of their children. Evidently, there is no precedent required to adjudicate this conflict of rights but if the Punjab and Haryana High Court wanted so, it need not go far as a bench of this very court, headed by Justice Sarin, in December, 2020 had ruled that even if the petitioner is not of marriable age, the live-in couple has a right to live together if they are major and that parents cannot force a child to live life on their terms. Justice Sarin held, and rightly so, that the live-in couple will not be declined protection of this court as the court cannot deny enforcement of the couple’s Article 21 fundamental right on the whims of their parents. In a more recent development, just two days after the May 18 order, Justice Sudhir Mittal of the Punjab and Haryana High Court itself, has, in a judicious, wise and concretely reasoned judgement, granted protection to a live-in couple stating that such a relationship is neither prohibited nor does it amount to commission of any offence and therefore the couple is entitled to equal protection of laws. Moreover,he held that social acceptance for live-in relations are on the increase. However, what is truly remarkable about this order is that although Justice Mittal held that there is increasing social acceptance of the concept of live-in relationship, he did not root his decision of granting protection to the couple in this social acceptance.Had he granted the couple protection on the basis of the increasing social acceptance, he would have committed the same mistake that the previous judges did, but would have just happened to come to a different conclusion by applying the same flawed reasoning. Instead, Justice Mittal turned to the constitution and held that there is no difference between couple who gets married against the wishes of their parents and couples who live together without a formal marriage and that the law should protect them both equally.
 
Such prudent reasoning of Justice Sarin and Justice Mittal is also in congruence with the thoughts of libertarian scholars like John Stuart Mill who argue that the only component of an individual’s behavior that can be the concern of state or society is that which effects other individuals directly and that the individual must be sovereign over his body and mind in all matters except this.In this case, no other right of anyone is being affected directly or indirectly other than the already stated imaginary right of the Indian parents to control the lives of their children. The rhetoric of social fabric and public morality are just windows through which the biases of the society and the judges themselves protrude.
 
Lastly, if the court is indeed turning to history, it is suggested, that they do so,not to refer to primitive Victorian morality, but to refer to the historical 1988 judgement of the European Court of Human Rights in Norris vs Republic of Ireland wherein it was held, in the context of homosexuality but it can be transposed to our present factual matrix as well, that “although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved”. Perhaps it is time that the Indian courts realize that just because the enforcement of a constitutional right may offend, shock or disturb the public, this per se, does not make the right non-enforceable in any way whatsoever.

(Ayush Mishra is a practicing Advocate at the Hon’ble Allahabad High Court and a graduate of the NALSAR University of Law, Hyderabad)

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Conjugal Rights: A Breach of the Constitutional Promise?

 

In his last official address to the Constituent Assembly, Dr B.R Ambedkar had emphasized prioritising the need for the establishment of a social democracy to go in hand with political democracy, without which democracy in India would not succeed. The exigency of instituting a ‘social democracy’ was rooted in the inherent inequalities that had plagued Indian society for centuries and to eradicate it Dr Ambedkar envisaged the triad of ‘Equality, Liberty and Fraternity’. Enshrined in the Preamble, the principlesof equality, liberty, and fraternity assume paramount significance, forming the ground for thoughtful governance. These principles work as a premise of Part III of the Constitution as Fundamental Rights and are especially reflected under Articles 14 and 21. The Right to Equality under law and the Right to Liberty were incorporated by Dr Ambedkar through the introduction of the Hindu Code Bill. The codification aimed to serve the dual purpose of elevating the status of women while also addressing the disparities of caste.

And yet, despite the egalitarian ideals that guided the codification of personal laws, multiple legal provisions continue to uphold gender disparities. One such legal provision is Section 9 of the Hindu Marriage Act, i.e Restitution of Conjugal Rights (RCR), a matrimonial relief provided to a distressed spouse in a legally instituted marriage. The RCR provision was introduced out of concerns for marriage preservation, despite many legislators’ objections that it may be used only for the detriment of women. It is reiterated in Section 22 of the Special Marriage Act. Rule 32, Order XXI of the Code of Civil Procedure, gives the enforcement mechanism for an RCR decree and under Section 13, non-compliance with such decree provides a legal ground for divorce.

A writ petition currently lies before the Supreme Court, challenging the constitutionality of the ‘facially neutral’ provision of RCR. Urging that the viability of a legislative provision has to be tested according to the contemporary times, the petitioners sought to accentuate the inefficacy of the RCR provision in the post Puttuswamy judgement era. The PIL is premised on the constitutional guarantee to every individual of the right to be left alone - even within the framework of a family. Describing the court-mandated restitution of conjugal rights as a “coercive act” on the part of the State, the petitioners submitted that “Any provision which forces an individual to have sexual relations or even cohabit a home without her will is violative of the right to privacy, individual autonomy and dignity that are guaranteed by Article 21 of the Constitution"

Procedural Aberrations: Contemplating Individual vs. State’s Interests

Rooted in British ecclesiastical law, the concept of RCR was brought to India during the colonial period. Judicial understanding of conjugal rights between spouses was based on the idea of equity, which played a central role in English jurisprudence. It was the idea that equity could compel specific relief for a wrong that underwrote the courts’ interpretation of the RCR remedy. Marriage was construed as a property deal between a man and a woman. Husband’s rights of access to his wife formed the core of this ‘deal’, which if violated, could be remedied by compelling her to live with him or punishing her if she does not submit. The Scarman Commission Report recognized the privacy breach underlying the RCR remedy and highlighted the futility of such a provision. Consequently, the United Kingdom and other common law countries abolished it. However, it continues as a relic in Indian statutes, despite being challenged multiple times.

Justice Pinhey was one of the early dissenters in Dadaji Bhikajiv. Rukhmabai, where he described the remedy as ‘barbarous, cruel and revolting’ and declined to grant RCR decree for a wife to be compelled into residing with her husband.

Years later, in T. Sareetha v. T. Venkata Subbiah, the Andhra Pradesh High Court recognized the fundamental issue of privacy breach underlying an RCR decree and observed that such a decree would not just be limited to the enjoyment of spousal company but would also translate into a court-mandated relief of conjugal intercourse. Adopting a liberal definition of the Right to Privacy, Justice Choudhary observed that such a right is ‘not lost by marital association’. Thus, holding that an RCRdecree is an offence on the inviolability of the body and mind and an invasion into marital privacy and domestic intimacies, the Court struck down Section 9of the Hindu Marriage Act as unconstitutional.

However, in the subsequent matter ofHarvinder Kaur v. Harmander Singh Choudhry, the Delhi High Court took an alternate stand. The single judge bench of the Delhi High Court was of the view that the judgement on the constitutionality of the RCR remedyrendered by the Andhra Pradesh High Court focused solely on the aspect of conjugal intercourse, while sex, in the opinion of the learned judge, only comprised of a single fragment of conjugal cohabitation and was not the summum bonum. Negating the issue of breach of privacy, thus, theRCR remedy was held not to be violative of Articles 14 and 21.

When the question came up for adjudication before the Supreme Court in the matter ofSaroj Rani v. Sudarshan Kumar Chadha, the Apex court reverted back to a narrower definition of privacy and affirmed the view of the Delhi High Court, upholding the constitutional validity of Section 9.The Court relied on the earlier conception of privacy, as established by Gobind v State of MP and construed RCR as serving a social purpose for amicably resolving marital disputes.

Legal Contours of Autonomy and Privacy

Recent judicial developments have rendered drastic changes to the interpretation of individuality coupled with the embracing of privacy as an indispensableelement of citizenship. The Supreme Court, in K. S. Puttuswamy v Union of India, has recognised the Right to Privacy as an integral part of human dignity which grants an individual complete autonomy over their body. One of the primary objectives of the Apex Court underlying this judgement was to equip the citizens with a constitutional safeguard against unnecessary and unreasonable intrusions by the State in the domain of individuality.

The paramountcy and overriding facet of privacy was once again reiterated by the Supreme Court in the landmark judgement of Navtej Singh Johar v. Union of India, where the five-judge bench observed that societal morality could not trump constitutional morality and that ‘bodily autonomy was individualistic, a part of dignity and a matter of choice’.

In this regard, supremely significant are the observations made by the Supreme Court in Joseph Shine vs. Union of India, where it was held that the curtailment of sexual autonomy or the presumption of lack of consent upon entering marriage are issues which are ‘antithetical to constitutional values.’

Justice Chandrachudelucidated that there is an explicit recognition that marriage is a constitutional regime founded on the equality of and between spouses and that ‘each of them is entitled to the same liberty which Part III guarantees.’ By virtue of this judgement, the Court has made a conscientious attempt to incorporate the institution of marriage within the realm of application of constitutional dignity and individuality of each citizen.

Conclusion

As in the words of Hon’ble Justice D.Y Chandrachud:

“The Constitution has within it the ability to produce social catharsis..”

The underlying thrust of each of these judgements was that morality, as envisaged by the Constitution, leads the judiciary to abolish laws that may be rationalised in the name of societal convention, but social morality must bow down to theoverriding constitutional principles of individual liberty, equality and dignity. Upon assessment of the recent rulings by the Supreme Court, it becomes apparent that the Court has strongly placed the individual at the centre of the constitutional firmament and set a course for progressive social reform. Indian society is morphing into one where bodily autonomy, dignity and choice are put before societal concerns and thus, it is time obsolescentprovisions like RCR, which entrench gender inequalities, are eradicated. The writ petition serves as a ripe opportunity for the Supreme Court to construe the remedy in the modern context and set forth the departure of the RCR provision from Indian statutes.

                   (Jayati Sinha is a 2nd year law student of Faculty of Law, University of Delhi.)

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How Many Languages Are Too Many Languages: A Review of the Jammu and Kashmir Official Languages Act, 2020

 

The Jammu and Kashmir Official Languages Bill, 2020, was passed by parliament in the recently concluded monsoon session. The Act received the assent of the President on September 26, 2020. The law allows for the inclusion of Kashmiri, Dogri and Hindi, in addition to Urdu and English, in the list of official languages in the Union Territory (UT). The bill was introduced and passed by the parliament during the boycott by the opposition concerning the passing of the three farm bills.

The only opposition to the bill in the Lok Sabha was put forth by Hasnain Masoodi, a former judge of the High Court of Jammu and Kashmir and a politician of the National Conference. He was the author of a judgment in 2015 declaring Article 370 a “permanent provision of the Constitution” which could not be “abrogated, repealed or even amended”. His argument against the law was threefold: firstly, giving a historical background of the languages used in the State, he argued that Urdu has been in force since 1889 when it was originally introduced by Maharaja Pratap Singh. Further, it was re-confirmed in 1957 and Article 145 of the Constitution of Jammu and Kashmir, 1956 stated that the official language shall be Urdu and English was to be used for official purposes of the State. Secondly, the Bill was being introduced through the Jammu and Kashmir Reorganisation Act, 2019 (hereinafter “Reorganisation Act”) which had been challenged in the Supreme Court (He is one of the petitioners challenging the Act) and was past the stage of formal admission. Mr. Massodi contended that even an introduction of this Bill will be an affront to the separation of powers and therefore, against constitutional propriety. Thirdly, he questioned the necessity of such a law at the time and that no other State or UT has five working official languages. Since the law was being passed under the emergency powers of the Reorganisation Act, he claimed that the Act was a “constitutionally suspect law” which is already under “judicial scrutiny”. He also raised an issue that since there will be five languages for the whole Union Territory there will be confusion in the bureaucracy.

The law was introduced by The Minister of State in The Ministry of Home Affairs, Shri G. Kishan Reddy standing in for the Home Minister. In his reply, he cited the Census of 2011 to explain the demography of the UT and the necessity of such a law. He gave the example of the Union Territory of Puducherry which has five official languages (French, Tamil, Telugu, Malayalam, and English) as an equivalent. On legislative competency, he cited Section 73 of the Reorganisation Act and Order S.O. number 3937(E), dated the 31st October 2019 issued by the President which is presently in force in the Union Territory of Jammu and Kashmir – paragraph 4 of this promulgation states that the powers of the Legislative Assembly can be exercised by the Parliament.

Legislative Competency

The original power to adopt an official language rests with the Legislative Assembly of Jammu and Kashmir under Section 47 of the Reorganisation Act. In the present case, the essence of the power assumed by the Parliament comes from Section 73 of the Reorganisation Act. Under this section, titled “Provision in case of failure of constitutional machinery”, the President can suspend the operation of all or any of the provisions of the Act to “make such incidental and consequential provision” for “administering the Union territory of Jammu and Kashmir”. This was dutifully done by the Order of 31^st October 2019, and the legislative powers were transferred to the Parliament along with the suspension of most of the Act, including Section 47. Therefore, the parliament assumed the formal power to adopt an official language for the Union Territory.

However, every other state and Union Territory with a legislature is given the power to select an official language, even if the language is not included in the VIII Schedule. Article 345 of the Indian Constitution allows the State legislature to adopt any language and Section 34 of the Government of Union Territories Act, 1963, empowers the Legislative Assembly of the Union territory to adopt any one or more of the languages in use in the Union territory.

Similarly Placed Union Territories

Only three Union Territories elect their representatives to form a legislature – Puducherry, Delhi and now, Jammu and Kashmir.

Section 34 of The Government of National Capital Territory of Delhi Act, 1991 provides the Legislative Assembly of the Capital with the power to adopt one or more official languages. The Assembly enacted The Delhi Official Languages Act, 2000 which made Hindi in Devnagri script as the official language and English was to continue as the administrative and legislative language. Additionally, Punjabi and Urdu were adopted as the Second Official Language.

Similarly, Section 34 of the Government of Union Territory Act, 1963 allows the Legislative Assembly of a Union Territory to adopt the official languages. A proviso to this provision allows the French language to continue as an official language for Pondicherry unless expressly removed by the Assembly, making it the only place in India to have two European official languages. Through Section 3 of The Pondicherry Official Language Act 1965, the Legislative Assembly made Tamil, Telegu, and Malayalam as the official languages with English as an additional official language but did not remove French. A writ in the nature of a Public Interest Litigation was filed at the Madras High Court by an art and literary organisation to implement Section 3 of the Pondicherry Official Language Act, 1965. In its counter-affidavit, the UT explained the “four language formula”. The three regional languages were applicable in “four enclaves situated far away from one another” and the English language “continues to be the link language” among all officers. The use of the Tamil language was in Puducherry and Karaikkal, Malayalam in Mahe and Telugu in Yanam. The High Court refused to change this system owing to the “peculiarity” of the Union Territory of Puducherry. Therefore, even though the UT is smaller in the area compared to Jammu and Kashmir, there are specific languages for specific areas only and no one regional language is enforced in the whole UT. Most importantly, these decisions were taken by an elected legislature. 

Conclusion

At different points in time, in different circumstances, India has been quoted to be a melting pot of diversity, recently by Justice Chandrachud in the hearing of the Sudarshan TV case and the Chief Justice SA Bobde at the International Judicial Conference earlier this year. To be truly respectful of this diversity, it is in the interest of the people that decisions like selecting an official language are taken by their elected representative. There is a chance that too many languages might create a situation of confusion but it would be a speculation to say so at this point. An inadvertent result of imposing so many languages would be a situation of linguistic polarisation where every section of the population will raise demands for the inclusion of their language. Undertones of this were seen in the Parliament during the discussion of this Bill, over the exclusion of Punjabi along with Gurjari and Pahari, as official languages by various political parties. Every State and Union Territory is given the power to choose the language that they want to work in and it should be best left to them. Using emergency powers to implement administrative decisions which ideally an elected State Legislature should take is a clear example of an authoritative Central Government and against the ethos of cooperative federalism. 

(Varun Ahuja is a 3rd year law student of Vivekananda Institute of Professional Studies, Delhi)

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