Right of speedy trial

No person shall be deprived of his life or his personal liberty except according to procedure established by law.

Life and liberty, the words employed in shaping Article 21, by the Founding Fathers of the Constitution, are not to be read narrowly in the sense drearily dictated by dictionaries; they are organic terms to be construed meaningfully. Embarking upon the interpretation thereof, feeling the heart-throb of the Preamble, deriving strength from the Directive Principles of State Policy and alive to their constitutional obligation, the Courts have allowed Article 21 to stretch its arms as wide as it legitimately can. The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial in short everything commencing with an accusation and expiring with the final verdict the two being respectively the terminus a quo and terminus ad quem of the journey which an accused must necessarily undertake once faced with an implication.

Is it at all necessary to have limitation bars terminating trials and proceedings?

Is there no effective mechanisms available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Continue reading

History of evolution of Constitution of India.

The history of Constitutional development in India.

THE CONSTITUTION OF INDIA is the supreme law of the land.

Constitution of India is invaluable to students of Political Science in that it is amongst the latest of federal constitutions and embodies features suitable for the working of federal governments under modern conditions.

Constitution of India has drawn largely from federal constitutions in foreign countries, but at the same time, it is not an artificial patchwork of heterogeneous bits scissored from different sources, and pieced together. There was in force, previously to the Constitution, a federal form of Government established by the Government of India Act, 1935, which, in turn, was evolved from a system of Government which was unitary in character. To understand aright the true scope of the provisions of the Constitution, therefore, it is necessary to have knowledge of the working of the Government of India prior thereto. By the expression Government of India is meant Government of British India, that is, of India excluding the territories ruled by Indian rulers and by other European powers such as France and Portugal.

1600 AD: East India Company.

2. On 31st December 1600, the East India Company obtained a Charter from Queen Elizabeth granting it a monopoly of trade in the East and pursuant thereto, it established factories at Fort William, Bombay and Madras. In the beginning, its activities were purely commercial but in the unsettled conditions that prevailed on the break-up of the Mogul Empire on the death of Aurangazeb in 1707, the Company drifted into the sea of politics and after the battle of Plassey in 1757, it assumed the role of a ruling power in this country. The acquisition of political power by a trading corporation led to abuse and corruption on the part of its officials on an unprecedented scale and evoked widespread criticism in England. When the Company which was in financial difficulties at this time applied for a loan to the British Government, the latter seized the opportunity to intervene and acting on the doctrine that acquisition of sovereignty by a subject could only be on behalf of the sovereign, brought the administration of the territories acquired by the Company under the authority and control of the British Parliament. With this object, Parliament enacted first the Regulating Act of 1773, and then again Pitt’s Act in 1784. Three Presidencies were constituted with Fort William, Bombay and Madras as their capitals. The administration of the Presidency of Bengal was entrusted to a Governor-General assisted by a Council which had authority to enact laws. Likewise, the Presidencies of Bombay and Madras were to be administered each by a Governor assisted by a Council which had independent power of legislation but the Governors were to some extent subordinate to the Governor-General. The Charter Act of 1813 took away the monopoly rights of the Company to trade in India and the Act of 1833 stripped it of all its commercial activities in India, leaving to it only its political vestments. One notable feature of this Act was that it divested the Governors of Bombay and Madras of the power to enact laws which had been granted to them by the Acts of 1773 and 1784. Thus, the Governor-General stood as the sole legislative authority for India.

Preamble of Constitution of India

1857 AD: Great Indian Mutiny.

Continue reading

Right to free Education under Constitution of India

Free education to all: A reneged constitutional objective of India!

Article 45 of Constitution of India providing objective of free education to all:

Article 45 of the Constitution of India as originally enacted had a promise to provide free education to all children until they reach the age of 14 years. This objective remain unfulfilled with no steps taken to achieve this objective which was in the nature of a directive principle to the governance of State. In 2002 this directive was modified and the obligation was changed to provide free education to children upto the age of six years. Thus the executive fainaiguer was constitutionally accepted.

Recent amendments in Constitution of India to provide free education:

Constitution (Eighty-Sixth Amendment) Act, 2002 reduced the age of children entited to free education to six years and inserted an article 21-A in the Constitution with the following objective:

“The Constitution of India in a Directive Principle contained in article 45, has ‘made a provision for free and compulsory education for all children up to the age of fourteen years within ten years of promulgation of the Constitution. We could not achieve this goal even after 50 years of adoption of this provision. The task of providing education to all children in this age group gained momentum after the National Policy of Education (NPE) was announced in 1986. The Government of India, in partnership with the State Governments, has made strenuous efforts to fulfil this mandate and, though significant improvements were seen in various educational indicators, the ultimate goal of providing universal and quality education still remains unfulfilled. In order to fulfil this goal, it is felt that an explicit provision should be made in the Part relating to Fundamental Rights of the Constitution.

Article 21A of the Constitution of India:

“21A. Right to education.: The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.”

Constitution (Ninety-third Amendment) Act, 2005 (with effect from 20.01.2006) was enacted to provide following object:

“Greater access to higher education including professional education to a larger number of students belonging to the socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes has been a matter of major concern. At present, the number of seats available in aided or State maintained institutions, particularly in respect of professional education, is limited in comparison to those in private unaided institutions.”

This Constitution (Ninety-third Amendment) Act inserted clause (5) of Article 15 in the Constitution of India:

“Nothing in this article or in sub-clause (g) of clause (1) of article 19 shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.

Challenge to provision for free education to backward classes:

The Clause (5) in Article 15 of the Constitution, vested a power on the State, independent of and different from, the regulatory power under clause (6) of Article 19, and question raised was whether this new power vested in the State which enables the State to force the charitable element on a private educational institution destroys the right under Article 19(1)(g) of the Constitution. Thus Supreme Court of India was called upon to decide the following two substantial questions of law:

    1. Whether by inserting clause (5) in Article 15 of the Constitution by the Constitution (Ninety-third Amendment) Act, 2005, Parliament has altered the basic structure or framework of the Constitution of India
    2. Whether by inserting Article 21A of the Constitution by the Constitution (Eighty-Sixth Amendment) Act, 2002, Parliament has altered the basic structure or framework of the Constitution India.

Reasoning of Supreme Court while upholding the above Constitutional Amendments:

In India by Constitution (Eighty- Sixth Amendment) Act, a new power was made available to the State under Article 21A of the Constitution to make a law determining the manner in which it will provide free and compulsory education to the children of the age of six to fourteen years as this goal contemplated in the Directive Principles in Article 45 before this constitutional amendment could not be achieved for fifty years. This additional power vested by the Constitution (Eighty-Sixth Amendment) Act, 2002 in the State is independent and different from the power of the State under clause (6) of Article 19 of the Constitution and has affected the voluntariness of the right under Article 19(1)(g) of the Constitution. By exercising this additional power, the State can by law impose admissions on private unaided schools and so long as the law made by the State in exercise of this power under Article 21A of the Constitution is for the purpose of providing free and compulsory education to the children of the age of 6 to 14 years and so long as such law forces admission of children of poorer, weaker and backward sections of the society to a small percentage of the seats in private educational institutions to achieve the constitutional goals of equality of opportunity and social justice set out in the Preamble of the Constitution, such a law would not be destructive of the right of the private unaided educational institutions under Article 19(1)(g) of the Constitution.

Under Section 12(1)(c) read with Section 2(n)(iv) of the Act, an unaided school not receiving any kind of aid or grants to meet its expenses from the appropriate Government or the local authority is required to admit in class I, to the extent of at least twenty-five per cent of the strength of that class, children belonging to weaker section and disadvantaged group in the neighbourhood and provide free and compulsory elementary education till its completion. We further find that under Section 12(2) of the 2009 Act such a school shall be reimbursed expenditure so incurred by it to the extent of per- child-expenditure incurred by the State, or the actual amount charged from the child, whichever is less, in such manner as may be prescribed. Thus, ultimately it is the State which is funding the expenses of free and compulsory education of the children belonging to weaker sections and several groups in the neighbourhood, which are admitted to a private unaided school. These provisions of the 2009 Act, in our view, are for the purpose of providing free and compulsory education to children between the age group of 6 to 14 years and are consistent with the right under Article 19(1)(g) of the Constitution

The width and amplitude test:

A plain reading of clause (5) of Article 15 would show that the power of a State to make a law can only be exercised where it is necessary for advancement of socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes and not for any other purpose. Thus, if a law is made by the State only to appease a class of citizen which is not socially or educationally backward or which is not a Scheduled Caste or Scheduled Tribe, such a law will be beyond the powers of the State under clause (5) of Article 15 of the Constitution. A plain reading of clause (5) of Article 15 of the Constitution will further show that such law has to be limited to making a special provision relating to admission to private educational institutions, whether aided or unaided, by the State. Hence, if the State makes a law which is not related to admission in educational institutions and relates to some other aspects affecting the autonomy and rights of private educational institutions as defined by this Court in T.M.A. Pai Foundation, such a law would not be within the power of the State under clause (5) of Article 15 of the Constitution. In other words, power in clause (5) of Article 15 of the Constitution is a guided power to be exercised for the limited purposes stated in the clause and as and when a law is made by the State in purported exercise of the power under clause (5) of Article 15 of the Constitution, the Court will have to examine and find out whether it is for the purposes of advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes and whether the law is confined to admission of such socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to private educational institutions, whether aided or unaided, and if the Court finds that the power has not been exercised for the purposes mentioned in clause (5) of Article 15 of the Constitution, the Court will have to declare the law as ultra vires Article 19(1)(g) of the Constitution. In our opinion, therefore, the width of the power vested on the State under clause (5) of Article 15 of the Constitution by the constitutional amendment is not such as to destroy the right under Article 19(1)(g) of the Constitution.

A law made under clause (5) of Article 15 of the Constitution by the State on the ground that it treats private aided educational institutions and private unaided educational institutions alike is not immune from a challenge under Article 14 of the Constitution. Clause (5) of Article 15 of the Constitution only states that nothing in Article 15 or Article 19(1)(g) will prevent the State to make a special provision, by law, for admission of socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes to educational institutions including private educational institutions, whether aided or unaided by the State. Clause (5) of Article 15 of the Constitution does not say that such a law will not comply with the other requirements of equality as provided in Article 14 of the Constitution.

Exclusion of minority institutions from obligation to provide free education:

Minority educational institutions, by themselves, are a separate class and their rights are protected under Article 30 of the Constitution, and, therefore, the exclusion of minority educational institutions from Article 15(5) is not violative of Article 14 of the Constitution. By excluding the minority institutions referred to in clause (1) of Article 30 of the Constitution, the secular character of India is maintained and not destroyed.

[Source: Pramati Educational & Cultural Trust v. Union of India, (Supreme Court of India)]

Legal Rights of Transgender Community

Transgender Rally demanding legal rights.Difficulties of Transgender Community:

Seldom, our society realizes or cares to realize the trauma, agony and pain which the members of Transgender community undergo, nor appreciates the innate feelings of the members of the Transgender community, especially of those whose mind and body disown their biological sex. Our society often ridicules and abuses the Transgender community and in public places like railway stations, bus stands, schools, workplaces, malls, theatres, hospitals, they are sidelined and treated as untouchables, forgetting the fact that the moral failure lies in the society’s unwillingness to contain or embrace different gender identities and expressions, a mindset which we have to change.

A petition by Transgender Community:

A Petition was filed by National Legal Services Authority under Legal Services Act, for the benefit of Transgender Community seeking legal declaration of their gender identity than the one assigned to them, male or female, at the time of birth and their prayer is that non-recognition of their gender identity violates Articles 14 and 21 of the Constitution of India. Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.

Legal rights of Transgender Community:

per K.S. Radhakrishnan, J

“74. Article 21, as already indicated, protects one’s right of self- determination of the gender to which a person belongs. Determination of gender to which a person belongs is to be decided by the person concerned. In other words, gender identity is integral to the dignity of an individual and is at the core of “personal autonomy” and “self-determination”. Hijras/Eunuchs, therefore, have to be considered as Third Gender, over and above binary genders under our Constitution and the laws.

75. Articles 14, 15, 16, 19 and 21, above discussion, would indicate, do not exclude Hijras/Transgenders from its ambit, but Indian law on the whole recognize the paradigm of binary genders of male and female, based on one’s biological sex. As already indicated, we cannot accept the Corbett principle of “Biological Test”, rather we prefer to follow the psyche of
the person in determining sex and gender and prefer the “Psychological Test” instead of “Biological Test”. Binary notion of gender reflects in the Indian Penal Code, for example, Section 8, 10, etc. and also in the laws related to marriage, adoption, divorce, inheritance, succession and other welfare legislations like NAREGA, 2005, etc. Non-recognition of the
identity of Hijras/Transgenders in the various legislations denies them equal protection of law and they face wide-spread discrimination.

 76. Article 14 has used the expression “person” and the Article 15 has used the expression “citizen” and “sex” so also Article 16. Article 19 has also used the expression “citizen”. Article 21 has used the expression “person”. All these expressions, which are “gender neutral” evidently refer to human-beings. Hence, they take within their sweep Hijras/Transgenders and are not as such limited to male or female gender. Gender identity as already indicated forms the core of one’s personal self, based on self identification, not on surgical or medical procedure. Gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as third gender….”

per A.K. Sikri, J.:

“…….The role of the Court is to understand the central purpose and theme of the Constitution for the welfare of the society. Our Constitution, like the law of the society, is a living organism. It is based on a factual and social realty that is constantly changing. Sometimes a change in the law precedes societal change and is even intended to stimulate it. Sometimes, a change in the law is the result in the social realty. When we discuss about the rights of TGs in the constitutional context, we find that in order to bring about complete paradigm shift, law has to play more pre-dominant
role. As TGs in India, are neither male nor female, treating them as belonging to either of the aforesaid categories, is the denial of these constitutional rights. It is the denial of social justice which in turn has the effect of denying political and economic justice….”

Declaration of rights of Transgender Community by Supreme Court of India:

Supreme Court of India after deliberating upon various aspects of human rights, has given following specific directions to restore the status and dignity of Transgender (Hijra/Kinner/Eunuch) Community:

We, therefore, declare:
(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.
(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.
(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission
in educational institutions and for public appointments.
(4) Centre and State Governments are directed to operate separate HIV Sero-survellance Centres since Hijras/ Transgenders face several sexual health issues.
(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.
(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.
(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.
(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.
(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.

[Source: National Legal Services Authority v. Union of India (Supreme Court of India)]

Civil suit and writ jurisdiction

Dismissal of plaint in writ jurisdiction:

Scope of writ jurisdiction:

Undoubtedly the High Court, under article 227, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well-known adage that greater the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well-recognised constraints. It can not be exercised like a “bull in a china shop”, to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

[Source: Jai Singh v. Municipal Corporation of Delhi, ((2010) 9 SCC 385)]

Dismissal of Civil Suit in writ jurisdiction:

The only question which was required to be determined in this case was whether the High Court while exercising its power under Articles 226 and 227 of the Constitution of India is competent to set aside the plaint ?


A petition under Article 226 or Article 227 of Constitution of India can neither be entertained to decide the landlord-tenant dispute nor it is maintainable against a private individual to determine an intense dispute including the question whether one party harassing the other party. The High Court under Article 227 has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi-judicial tribunals, exercise the powers vested in them within the bounds of their authority but it was not the case of the 1st respondent that the order passed by the Munsiff Court was without any jurisdiction or was so exercised exceeding its jurisdiction. If a suit is not maintainable it was well within the jurisdiction of the High Court to decide the same in appropriate proceedings but in no case power under Articles 226 and 227 of Constitution of India can be exercised to question a plaint.

[Source: Jacky v. Tiny @ Antony (Supreme Court of India)]

Scandal, Defamation and injury to Reputation

Right to Good reputation is part of 

Fundamental right of life and freedom of expression

A forged letter used to make defamatory complaint:

A letter dated 22.4.2011 purported to have been written by Shri M.A. Khan, M.P., suggests that various properties had been purchased by respondent no.2 as benami and the copies of the sale deeds etc. filed alongwith the said letter fortify the same. The Government of India wrote a letter to the Chief Secretary, Govt. of A.P. on 5.5.2011 to conduct an enquiry in respect of alleged disproportionate assets Continue reading

Constitution of India is quasi federal in nature.

Constitution of India:

Federal of Unitary?

Debate about federal or unitary Constitution:

When the Constitution of India which came into force on January 26, 1950, Mr. Wheare [author of Federal Government, 4th Edition, pages 26-27.], said “Constitution of republic of India, has federal features though it does not in fact claim that it establishes a Federal Union………It seems clear that after allowing for the federal features of the Indian Union, it can only be concluded that the Constitution is ‘ quasi-federal.’

Supreme Court of India agrees that Constitution of India is quasi federal:

India is not a federal State in the traditional sense of the term. Continue reading

Doctrine of necessity and Bias

Doctrine of necessity overrides
the principle of apprehended bias

J. Jayalalithaa (cropped) Facts of the case:

Ms. J. Jayalalitha was elected to the Legislative Assembly of Tamil Nadu on or, the AIADMK ticket in the General Elections held in June 1991 and on being elected as the leader of the party she was sworn-in as the Chief Minister of the State. On 2.10.1992, Dr. Subramanian Swamy preferred a petition to the State Governor under Article 192 of the Constitution of India alleging that the Chief Minister had incurred a disqualification of being a member of the Legislative Assembly of the State, in that, she being a partner in the partnership firm run in the name and style of Messrs Jaya Publications had entered into a contract with the State Government and which contract was subsisting on the date of the petition, in view of sub-clause (e) of clause (1) of Article 191 of the Constitution read with Section 9A of the Representation of the People Act, 1951

The question was whether the Chief Election Commissioner against whom she had expressed her apprehension of Bias, should be recused from the proceedings or he has to act in an advisory capacity, in case of dead lock, on the basis of Doctrine of Necessity. Continue reading

Death Sentence and Mercy Petition: Balancing the Justice.

Death SentenceBalancing between the Death Sentence, Mercy and Speedy Justice.

Execution of death sentence by hanging: Validity.

[T]he State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by Section 354(5) of the CrPC does not violate the guarantee right contained in Article 21 of the Constitution. The material shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner’s apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. Continue reading

Original Jurisdiction of Supreme Court of India under article 131 of Constitution of India.

Original Jurisdiction of Supreme Court of India

Article 131 of the Constitution of India defines the original jurisdiction of Supreme Court of India.

The Supreme Court of India has Original jurisdiction in respect of following matters:

  1. between the Government of India and one or more States; or
  2. between the Government of India and any State  or States on one side and one or more other States on the other; or
  3. between two or more States,

if, and in so far as, the dispute involves any question (whether of law or of fact), on which the existence or extent of a legal right depends.

Suit against Railway over a commercial dispute: Continue reading