How fundamental are the Fundamental Rights of citizens of India.

Ninth Schedule of Constitution of India.

Can a law included in Ninth schedule of the Constitution of India, be challenged on the ground that it violates basic structure of the Constitution even if it can not be challenged as being violative of Fundamental Rights in Part III of the Constitution?


Doctrine of Basic Structure of Constitution and fundamental rights.

(i) A law that abrogates or abridges fundamental rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.

(ii) The majority judgment in Kesavananda Bharati’s case read with Indira Gandhi’s case, requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the fundamental rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.

(iii) All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

Judicial review to check violation of Basic Structure of the Constitution:

(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the “rights test” and the “essence of the right” test taking the synoptic view of the Articles in Part III as held in Indira Gandhi’s case. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such a law(s) will not get the protection of the Ninth Schedule.
This is our answer to the question referred to us vide Order dated 14th September, 1999 in I.R. Coelho v. State of Tamil Nadu [(1999) 7 SCC 580].

Prospective operation of judgement:

(v) If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder.

(vi) Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge.

[Full judgement source: I.R.Coelho v. State Of Tamil Nadu.]


Liability of Internet intermediary under Indian Law

Legal obligation of Intermediary

Information Technology Act, 2001; Section 79 is as under:

Exemption from liability of intermediary in certain cases— (1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if—
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not—
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if—
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation— For the purposes of this section, the expression “third party information” means any information dealt with by an intermediary in his capacity as an intermediary.

Intermediary is under an obligation to remove unlawful content if it receives actual notice from the affected party of any illegal content being circulated/published through its service.

Intermediary is bound to comply with Information Technology (Intermediaries Guidelines) Rules 2011. Rule 3(3) of the said rules read with Rule 3(2) requires an intermediary to observe due diligence or publish any information that is grossly harmful, defamatory, libelous, disparaging or otherwise unlawful.

per Manmohan Singh, J. of Delhi High Court in Vyakti Vikas Kendra, India Public Charitable Trust v. Jitender Bagga, in CS(OS) No.1340/2012 decided on: 09.05.2012.

Failure of intermediary to comply:

An intermediary is liable for third party if despite actual knowledge, it fails to remove such illegal information, then the court can ask the party to disclose the identity of the person who is involved therein.
Per Manmohan J. of Delhi High Court in Nirmaljit Singh Narula v. Indijobs, in CS (OS) No.871/2012  decided on 30.03.2012.

Death sentence.

Considerations to award death sentence

Where possibility of reformation can not be ruled out, death sentence commuted to life imprisonment.

Death SentencePenal Code 1860, Section 360.

The appellant was the State President of the Youth Congress in Delhi. The deceased was a qualified pilot and she was also the State General Secretary of Youth Congress (Girls Wing), Delhi. She was an independent lady, who was capable of taking her own decisions. From the evidence on record, it cannot be said that she was not in touch with people residing outside the four walls of her house. Evidence discloses that even on the date of incident at around 4.00 p.m. she had contacted PW-12 Matloob Karim. She was not a poor illiterate hapless woman. Considering the social status of the deceased, it would be difficult to come to the conclusion that the appellant was in a dominant position qua her. The appellant was deeply in love with the deceased Continue reading “Death sentence.”