Recognition Not Reservation

(By K. Ramakumar, Senior Advocate, High Court of Kerala)
E-mail : ramakumarassociates@gmail.com                                     Ph. 0484 - 2376428

“By and large, 50% of the inflow into the first year of LLB class in law schools are women. Now that more and more women are entering law schools, the question is how do we ensure that these women don’t fall by the wayside in the profession because, all said and done, the legal profession, even today, is terribly patriarchal.”

Words spoken by a former Chief Justice of India in a legal seminar organized by a prominent newspaper. In the same venue, another former Chief Justice called for more representation for women, as according to him, there is a glaring under-representation of women in the judiciary, and he called it “a systematic issue that demands urgent redressal.” Significantly, the former Chief Justice also highlighted how individuals with influential connections often enjoy undue advantages in career progression. To quote from the former Chief Justice,

“In recent times, senior judges of the Supreme Court have also been highlighting this issue. It is the need of the hour to get away from this culture in the system. The struggle for bringing a level playing field is a long-drawn battle.”

Reading the two speeches together, both the former Chief Justices are in effect advocating reservation for women in a profession and ultimately in the judiciary. This, it has to be pointed out, is patently opposed to the mandate of Article 15, which forbids discrimination on grounds of religion, race, caste, sex or place of birth. Preference, either on the basis of sex, or place of birth, is prohibited under Article 15. Nevertheless, in recent times, the representative need is assessed not only on the basis of sex but also on the basis of place of birth. A Kolkata Judge was chosen openly to ensure adequate representation for the Kolkata High Court in the Chief Justiceship. What else is this other than a preference for place of birth, may one respectfully ask?

Day in and day out, the judiciary speaks of illegality, inequality, arbitrariness, discri-mination, etc. Nevertheless, a classic case of invidious discrimination is the totally unsupportable distinction made among the class of lawyers as senior advocates and others. Worse still is the right of pre-audience given to designated senior advocates, putting even litigants to inconvenience. The right of pre-audience is understandable in the case of the Attorney General or the Advocate General in view of the onerous responsibilities shouldered by them. Adding one more category of reserved and privileged sections in a profession like law, still called noble, will be totally anomalous and fall foul of the ethos of equality held sacred.

A profession unlike other avocations is far different, where equality of opportunity is available to all. Success in a profession quite often is achieved by the survival of the fittest. There cannot therefore be any reservation in professions like law, medicine, engineering, etc. Could it be argued that women are discriminated against in achieving success in a profession like law? Far from it. Many women have made a mark, though significantly, there are hardly any eminent or well-known trial lawyers among women, barring a handful in Delhi or Mumbai. Reservation, therefore, in a profession, cannot but be anathematizingequality, the sworn enemy of arbitrariness. In fact, it may even amount to belittling the tremendous potentialities exhibited by women in various fields.

Sunitha Williams reached outer space. Margaret Thatcher was one of the most powerful prime ministers of England. ChitraSubramaniam reached commanding heights in journalism. Indira Nooyi became one of the highest-paid executives in the world. None of them reached heights due to reservation. Reservation in a profession, therefore, is completely antithetical to the principles of equal opportunity. What is required is equal opportunity for women, which is available but not always availed of.

Women, as some portray them, are the most wonderful and beautiful creations of God. It is only they who are privileged with heavenly motherhood and blissful breastfeeding. What they need, therefore, is respect and not reservation. The land of Sita, Damayanti, and Draupadi cannot but respect its women.

One of the former chief justices in the same venue pointed out the underprivileged in the profession. See what the Supreme Court said about them as early as in Neil Aurelio Nunes (OBC Reservation) v. Union of India (2022 (1) KLT OnLine 1132 (SC) = (2022) 4 SCC 1).

“Special provisions (like reservation) enable such disadvantaged classes to overcome the barriers they face in effectively competing with forward classes and thus ensuring substantive equality. The privileges that accrue to forward classes are not limited to having access to quality schooling and access to tutorials and coaching centers to prepare for a competitive examination but also include their social networks and cultural capital (communication skills, accent, books, or academic accomplishments) that they inherit from their family. The cultural capital ensures that a child is trained unconsciously by the familial environment to take up higher education or high posts commensurate with their family’s standing. This works to the disadvantage of individuals who are first-generation learners and come from communities whose traditional occupations do not result in the transmission of necessary skills required to perform well in open examination. They have to put in surplus effort to compete with their peers from the forward communities. On the other hand, social networks (based on community linkages) become useful when individuals seek guidance and advice on how to prepare for examinations and advance in their careers even if their immediate family does not have the necessary exposure. Thus, a combination of family habitus, community linkages, and inherited skills works to the advantage of individuals belonging to certain classes, which is then classified as ‘merit’, reproducing and reaffirming social hierarchies.”

The Supreme Court recently, in Gaurav Kumar v. Union of India (2024 (4) KLT SN 58 (C.No.45) SC = 2024 KLT OnLine 1954 (SC) = (2025) 1 SCC 641), said as follows regarding lawyers from the marginalized sections:

“The lack of social capital and networks is acutely felt by advocates from marginalized communities. The marginalised sections of our society face insurmountable obstacles in navigating the Indian legal system. This is further compounded by their lack of representation in the legal profession. Greater representation of the marginalized communities in the legal profession will increase the diversity within the profession, enable the marginalized sections to trust the legal system, and facilitate the delivery of legal aid and services to unrepresented communities.”

Reservation, if at all, is for them and not for the elitist daughters and wives with endogenous growth potential.

See further on the insurmountable obstacles faced by novices in the legal profession, as observed in S. Seshachalam v. Bar Council of Tamil Nadu (2015 (1) KLT 192 (SC) = (2014) 16 SCC 72).

“The profession of law is a noble calling. The legal fraternity toils day and night to be successful in the profession. Although it is true that slowly working one’s way up is the norm in any profession, including law, but initially young advocates have to remain in the queue for a prolonged period of time and struggle through greater hardships. Despite being extremely talented, a number of young lawyers hardly get proper opportunity or exposure in their profession. New entrants to the profession in the initial stages of the profession suffer with the meagre stipend which young lawyers may receive during their initial years, coupled with the absence of legislation concerning this; they struggle to manage their food, lodging, transportation, and other needs. Despite their valiant efforts, they are unable to march ahead in their profession. It is only after years of hard work and slogging that some of the fortunate lawyers are able to make a name for themselves and achieve success in the profession. For the majority of the legal fraternity, every day is a challenge. Despite the difficult times, the lawyer who sets up practice straight after enrolment struggles to settle down in the profession. Some of the lawyers remain struggling throughout their lives yet choose to remain in the profession. It is something like ‘riding a bicycle uphill with the wind against one.”

Have the women lawyers a case that greenhorns among the men are better off than them?

The Plenary Powers of the Supreme Court under Article 142
of the Constitution -- Time to Draw the Fence :

(By Sridhar Rajagopalan, Chief Legal Officer, Automotive Robotics
                                                                India Pvt. Limited, Chennai)

The Hon’ble Supreme Court on 8th April 2025 has given a landmark judgement in the matter of the State of Tamilnadu v. The Governor of Tamilnadu & Anr. (2025 KLT OnLine 1733 (SC)), declaring the denial of assent to ten Bills by the Governor of Tamilnadu, with undue procrastination, as illegal in the eyes of law and not in consonance with Article 200 of the Constitution. The Apex Court anchored on the need to give respect to the will of the people as decided throughtheir elected representatives in the parliamentary democracy.

It may be pertinent to note that the Court has also provided a three-month deadline for the President of India whether to assent to Bills referred to by the Governor of any State.The Supreme Court has given a “recommendation” to the President to seek its “advice” on such Bills. The Court has also provided that if the Governor decided to withhold his assent or reserve a Bill for the President’sconsideration, such action needs to be taken not later than one month. Apart from this, if the Governor decided to hold back the assent in contra to the ministerial advice, the said Bill would have to be returned within three months along with his reasoning for the refusal. Assuming that, if the Legislative Assembly passes the Bill again after considering the Bill along with the reasoning sent by the Governor, the Bill should be granted assent within one month.

Article 200 of the Constitution, which was the subject matter of this case, reads as under:

“When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:

Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom:

Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.”

The important role of the Governor, inter alia, is to grant assent to the Bill. Once the assent is given, the Bill becomes a law. This power underscores the Governor’s role in the legislative process, acting as the final authority on whether a Bill should become a law.Since the Constitution does not specify a fixed time frame within which the Governor must return the Bill, the phrase “as soon as possible” is so vague and is susceptible to different interpretations. The latest judgement of the Supreme Court has provided the much-awaited clarity to remove the uncertainty regarding the Governor’s action on the Bills.

However, by invoking Article 142 of the Constitution,the Supreme Court deemed the ten Bills to have received the assent of the Governor, using the plenary powers as provided under the said Article.The Court found that the Governor had allowed the Bills to remain pending for an unjustifiably long period and had acted in a manner that was “not bona fide.” They also noted the Tamil Nadu Governor’s “scant respect” of the State of Punjab judgement. In light of this, in an important and perhaps controversial move, the Court held that they had “no choice” but to declare that the ten Bills are deemed to have received the Governor’s assent on the very date they were presented to him the second time.Justice Pardiwala justified this by invoking the Court’s discretionary powers under Article 142 of the Constitution, which allows the Court to pass any order necessary to do “complete justice”. (Supreme Court uses discretionary powers to effectuate 10 pending Bills in Tamilnadu–Advay Vora- Supreme Court Observer- 8th April 2025)

In Delhi Judicial Service Association v. State of Gujarat and Others (1991 (2) KLT OnLine 1007 (SC) = 1991 (4) SCC 406) ,the Supreme Court has Characterized its powers under Article 142 as “entirely of a different level and of a different quality and further stated that prohibitions or limitations contained under ordinary laws could not restrict its “constitutional power” under Article 142. In Vinay Chandra Mishra v. Supreme Court of India(1995) (1995 (1) KLT OnLine 958 (SC),the Apex Court reiterated this  constitutional power.

The objective of Article 142 is to ensure “Complete justice”.In Prem Chand Garg v. Excise Commissioner (UP)(1963 KLT OnLine 1238 (SC) = AIR1963 SC 996), the Court has cautioned that while Article 142 grants extensive powers, these cannot contravene constitutional provisions. The Court’s interpretation was restrictive, establishing that Article 142 cannot override the Constitution’s basic framework. In Shilpa Sailesh v. Varun Sreenivasan (2023) (2023 (3) KLT SN 19 (C.No.9) = 2023 KLT OnLine 1334 (SC) = 14 SCC 231), the Supreme Court has expanded the ambit of Article 142 and ruled that It could dissolve marriages based on irretrievable breakdown without adhering strictly to procedural laws.Criminal proceedings could be quashed under Article 142 in the interest of justice. and the Court’s discretion is paramount when a settlement between parties indicates that continuing the legal relationship is unjustified.

The important role of Article 142 is to bridge the legislative gaps. Article 142 does not provide a sweeping power and while invoking the said Article, what is expected of from the Apex Court is to ensure that justice is done without diluting or compromising constitutional principles.

In view of the above, there is a possibility of Constitutional experts considering the order of the Supreme Court directing that all the ten Bills would be deemed to have obtained the assent of the Governor without having them not to go back to the Governor again thus enabling them to become the Acts of Tamilnadu as “judicial overreach”. After all, the Court is expected to keep judicial powers separate from those of the other two branches of the government. This requirement provides the most basic structural parameter for the proper role of the Court.

It may be noted that theGovernor is a constitutional entity under Article 153 and is the constitutional Head of the state. The Bills passed by the State Legislative Assembly become the Law when it gets the assent of the Governor of the State. Against this Constitutional mandate, the pertinent question is whether this constitutional power of the Governor can be usurped by the Apex Court by invoking the plenary powers under Article 142 of the Constitution.

Since the Supreme Court has provided the timelines to the Governors and the President of India in the matter of giving the assent or otherwise to the Bills of the States, a view may emerge that the Supreme Court could have given a mandatory deadline say a week or so to the Governor of Tamilnadu to give assent to the ten Bills which were pending before him instead of resorting to “deemed assent”.This could have avoided the necessity of invoking Article 142 of the Constitution and consequently usurping the role of another constitutional authority.

This may pave way for deviating from long- held judicial traditions in the future. Judicial power in a constitutional democracy is not boundless. Following Jurist Robert Bork’s first modern theory of Originalism, an attempt to ascertain the constitutional debates on Article 142 in the Constitute Assembly to follow how it would have been understood or was intended to be understood at the time it was drafted, has not yielded any results as the said article was adopted by the Constituent Assembly without any debate at all.

As such, is it not the right time for the Chief Justice of India to set up a Constitutional Bench of the Supreme Court to clarify and demarcate the outer boundaries of the Court’s power under Article 142 of the Constitution?

Indian Parliamentary Democracy Further Fostered by
Supreme Court on 08.04.2025

(By Advocate (CS) John Vadassery, Ernakulam)

It is an elementary knowledge that the characteristic of Indian polity is Parliamentary democracy. In Parliamentary democracy voters elect their representatives to legislature, ie., to the parliament or state legislature as the case may be. The leader of the majority party in the parliament becomes the Prime Minster and the leader of the majority party in the state legislature becomes the Chief Minister. Even though the executive power of the Union is vested in the President, the de facto head of the Union Government is Prime Minister, for the President has to function in accordance with the aid and advise of Council of Ministers headed by the Prime Minister. Likewise in state(s), the executive power is vested in the Governor(s), but the de facto head of the State Government is Chief Minister(s) for the Governor(s), has to function in accordance with the aid and advise of Council of Ministers headed by the Chief Minister(s).

The President is elected by the members of an electoral college consisting of (a) the elected members of both Houses of Parliament; and (b) the elected members of the Legislative Assemblies of the States. The Governors of States are appointees of the President by warrant under his hand and seal. So, in the case of President and Governors of States, they are not directly elected by the voters. Since in democracy, government is ‘of’ the people, ‘by’ the people and ‘for’ the people, ‘the people’ can only be governed by the Council of Ministers formed from the people’s representatives. The corollary is that the office of President or the Governors of States assumes only a titular or decorative significance in Indian Constitutional context. But the persons occupying the highest offices , specially Governors of States, in the recent political history of India, forget this plain truth and behaves as monarchs or dictators in their realm of activities. This troubles Indian Parliamentary democracy by way of disputes between Governors of States and Chief Ministers leading to deadlocks in governance.

The Case at hand is that the Legislature for the State of Tamil Nadu, between 13.01.2020 and 28.04.2023, enacted and forwarded 12 Bills to the Governor for grant of assent as per Article 200 of the Constitution. The bills passed by any Sate Legislature can become law only after getting ascent of the Governor thereon. But the Governor did not take the necessary action on any of the said Bills forwarded to his office till October 2023 taking recourse to the fact that the Article 200 do not mention the time period for considering the bills for his ascent. The State of Tamil Nadu, being aggrieved by the inaction on part of the Governor, filed the Writ Petition (Civil) No.1239 of 2023 against The Governor of Tamil Nadu & Anr before Supreme Court . The same was filed on 31.10.2023.

The Supreme Court issued notice to the respondents on 10.11.2023. The Governor, forthwith, took a decision on the 12 Bills on 13.11.2023 by withholding assent simpliciter to 10 bills i.e., he did not convey any message to the State Legislature for reconsideration of the said Bills as prescribed under the first proviso to Article 200, and by reserving two Bills for the consideration of the President. The 10 bills for which assent was withheld were returned to the State Legislature by the Governor.

The State Legislature, on 18.11.2023, convened a special session and repassed the 10 bills which were returned by the Governor after withholding of assent. The bills were passed without any material change and were forwarded to the Governor’s Secretariat on the same day for his assent in accordance with the first proviso to Article 200.

On 28.11.2023, the Governor, without the aid and advice of the Council of Ministers of the State, in exercise of his discretion, reserved the said re-passed Bills for the consideration of the President.

The Governor, on 04.12.2023, clarified to the Supreme Court that the 10 Bills to which he had withheld assent simpliciter were not returned to the Legislature for reconsideration as stipulated in the first proviso of Article 200. Despite that, the State Government had placed the Bills before the legislative assembly again. After the Bills were repassed by the legislative assembly, the State Government sent the same back to the Governor for assent. The Governor further clarified that since the Bills suffered from repugnancy, he reserved the said Bills for the consideration of the President.

In view of the reservation of the 10 Bills for the consideration of the President, the petitioner filed the I.A.No.259020 of 2023 on 11.12.2023, seeking amendment of the prayers of the present Writ Petition and prayed for insertion of the following prayer: “Pass any writ/order or direction to declare that the action of the Governor of Tamil Nadu/ first Respondent of reserving the Bills as unconstitutional, illegal, arbitrary, unreasonable besides malafide exercise of power and/or to quash the being ultra vires Articles 14,19 and 21 read with Article 200 of the Constitution and direct the Respondent-1 to declare assent to the same.”

Upon the suggestion made by Supreme Court, the Governor, on 12.12.2023 wrote to the Chief Minister for the State of Tamil Nadu inviting him to a meeting in an attempt to resolve the deadlock. The Governor and the Chief Minister met on 30.12.2023, pursuant to which the Chief Minister submitted a representation summarising the following issues:

(i) The Bills could not have been reserved for the consideration of the President after the decision of this Court inState of Punjab v. Principal Secretary to the Governor of Punjab reported in (2023 (6) KLT 492 (SC) = 2024 (1) SCC 384), wherein it was held that once the Governor decides to exercise the power of withholding assent to a bill, the operation of the first proviso to Article 200 has to necessarily follow.

(ii) Article 200 does not confer any power upon the Governor to exercise the option of reserving a bill for Presidential consideration after a bill has been reconsidered and repassed by the State Legislature. Since, the 10 Bills in the present case were reconsidered and passed again by the State legislature, the only constitutionally permissible option for the Governor was to grant assent.

(iii) The Governor also acted in contravention of the aid and advice of the Council of Ministers that “the Bill repassed by the Legislative Assembly should be assented to by the Hon’ble Governor without withholding assent”, which is ultra vires of the Constitution.

In light of the above representation, the Chief Minister requested the Governor to:

(i) Recall the 10 Bills reserved for the consideration of the President and grant assent expeditiously;

(ii) In future, grant assent to Bills passed by the State Legislature within 30 days and avoid unnecessary reservation of the bills for the consideration of the President;

(iii) Act in accordance with the aid and advice tendered by the Council of Ministers.

But the Governor declined the suggestions of the Chief Minister and on his volition reserved the remaining 10 bills for consideration of the President.

At this juncture the Supreme Court had no option other than to adjudicate upon the disputes of Writ Petition (Civil) No.1239 of 2023 in the matter of State of Tamil Nadu v.The Governor of Tamil Nadu & Anr. (2025 KLT OnLine 1733 (SC).

The Supreme Court had ( a) a detailed hearing of the parties and (b) referred and analyzed (i) draft & provisional constitutions, (ii) Government of India Act, 1935, (ii) Debates of the Constituent Assembly on Article 200 & 201 of the Constitution, (iv) a catena of earlier supreme court decisions (v) reports of First Administrative Reforms Commission 1966, Rajamannar Commission 1971, Sarkaria Commission, Punchhi Commission etc. (vi) International Jurisprudence on assent to bills considering the actual practice in different countries of the world, and more. Then the Supreme Court in its judgment dated 08.04.2025 (2025 KLT OnLine 1733 (SC) - State of Tamil Nadu v. Governor of Tamilnadu (a) observed and reiterated that no constitutional office is above constitution and amendable to judicial review (b) interpreted how to read the Articles 200 & 201 of the Constitution and (c) prescribed a time frame in according ascent to bills of state legislatures under Articles 200 & 201 of the Constitution.

The Supreme Court held :

(1) ‘In discharge of his functions under Article 200, the Governor has three options to choose from when a bill passed by the State legislature is presented to him –

i.   First, to assent;

ii.  Secondly, to withhold assent; or

iii. Thirdly, to reserve the bill for the consideration of the President’.

(2) ‘ The first proviso to Article 200 should be read in conjunction with the option of withholding of assent provided in the substantive part of Article 200. It is not an independent course of action and has to be mandatorily initiated by the Governor in cases where the option of withholding of assent is to be exercised’.

(3) ‘Once the Governor exercises the option of withholding assent, he is under an obligation to follow the procedure prescribed in the first proviso “as soon as possible”.

(4) Neither the concept of ‘pocket veto’ nor that of ‘absolute veto’ finds place within the constitutional scheme and mechanism envisaged under Article 200 of the Constitution. The substantive part of Article 200 consciously uses the expression “shall declare” to signify that there is no scope of inaction, and whenever a bill is presented to the Governor, he is under a constitutional obligation to adopt one of the three courses of action available therein. Further, the expression “as soon as possible” in the first proviso permeates
Article 200 with a sense of expediency and does not allow the Governor to sit on the bills and exercise pocket veto over them. Similarly, by virtue of the first proviso being intrinsically and inextricably attached to the option of withholding of assent, there is no scope for the Governor to declare a simpliciter withholding of assent, meaning thereby that ‘absolute veto’ is also impermissible under Article 200’.

(5) ‘it is not open for the Governor to reserve a bill for the consideration of the President once it is presented to him in the second round, after having been returned to the House previously as per the first proviso’.

(6) ‘Despite there being no prescribed time-limit, Article 200 cannot be read in a manner which allows the Governor to not take action upon bills which are presented to him for assent and thereby delay and essentially roadblock the lawmaking machinery in the State’.

(7) ‘ Keeping in mind the constitutional significance of Article 200 and the role it plays in the federal polity of the country, the following timelines are being prescribed. Failure to comply with these timelines would make the inaction of the Governors subject to judicial review by the courts:

(i) In case of either withholding of assent or reservation of the bill for the consideration of the President, upon the aid and advice of the State Council of Ministers, the Governor is expected to take such an action forthwith, subject to a maximum period of one-month;

(ii) In case of withholding of assent contrary to the advice of the State Council of Ministers, the Governor must return the bill together with a message within a maximum period of three months;

(iii) In case of reservation of bills for the consideration of the President contrary to the advice of the State Council of Ministers, the Governor shall make such reservation within a maximum period of three months;

(iv) In case of presentation of a bill after reconsideration in accordance with the first proviso, the Governor must grant assent forthwith, subject to a maximum period of one-month.

(8) As the general rule, the Governor in exercise of his functions under Article 200 is required to abide by the aid and advice tendered by the Council of Ministers. The only exceptions to this rule can be traced to the second proviso to Article 200 and Article 163(1) of the Constitution. Thus, only in instances where the Governor is by or under the Constitution required to act in his discretion, would he be justified in exercising his powers under
Article 200 contrary to the advice of the Council of Ministers. Further, any exercise of discretion by the Governor in exercise of his powers under Article 200 is amenable to judicial review. (iii) Where the bill is of a nature that if allowed to take effect then it would undermine the Constitution by placing the fundamental principles of a representative democracy in peril’.

(9) ‘There is no ‘pocket veto’ or ‘absolute veto’ available to the President in discharge of his functions under Article 201. The use of the expression “shall declare” makes it mandatory for the President to make a choice between the two options available under the substantive part of Article 201, that is, to either grant assent or to withhold assent to a bill. The constitutional scheme does not, in any manner, provide that a constitutional authority can exercise its powers under the Constitution arbitrarily. This necessarily implies that the withholding of assent under Article 201 is to be accompanied by the furnishing of reasons for such withholding. We cannot say for a moment that the President would be allowed to not exercise the proviso to Article 201 and not communicate reasons for the withholding of assent to the State legislature, as doing so would make the very inclusion of the proviso in Article 200 redundant. Thus, the proviso to Article 201 could be said to attach with the option of withholding of assent’.

(10) ‘Whenever, in exercise of the powers under Article 200 of the Constitution, a bill is reserved for the consideration of the President on grounds of patent unconstitutionality that are of such a nature so as to cause peril to the principles of representative democracy, the President, must be guided by the fact that it is the constitutional courts which have been entrusted with the responsibility of adjudicating upon the questions of constitutionality and legality of an executive or legislative action. Therefore, as a measure of prudence, the President ought to make a reference to this Court in exercise of his powers under Article 143 of the Constitution’.

(11)’ Where the Governor reserves a bill for the consideration of the President in his own discretion and contrary to the aid and advice tendered to him by the State Council of Ministers, it shall be open to the State Government to assail such an action before the appropriate High Court or this Court’. Such a challenge can broadly be made on the grounds as enumerated in the judgment.

Some of the concluding remarks given in the judgment is also worthwhile to note:

‘We are in no way undermining the office of the Governor. All we say is that the Governor must act with due deference to the settled conventions of parliamentary democracy; respecting the will of the people being expressed through the legislature as-well as the elected government responsible to the people. He must perform his role of a friend, philosopher and guide with dispassion, guided not by considerations of political expediency but by the sanctity of the constitutional oath he undertakes. In times of conflict, he must be the harbinger of consensus and resolution, lubricating the functioning of the State machinery by his sagacity, wisdom and not run it into a standstill. He must be the catalyst and not an inhibitor. All his actions must be impelled keeping in mind the dignity of the high constitutional office that he occupies’.

‘The Governor before he assumes office undertakes an oath to discharge his functions to the best of his ability in order to preserve, protect and defend the Constitution and the rule of law, along with avowing to devote himself to the service and well-being of the people of the State. Therefore, it is imperative that all his actions be guided in true allegiance to his oath and that he faithfully executes his functions that he is entrusted with by and under the Constitution. There is a reason why a specific reference is made to the well-being of the people of the State in his oath, there is a reason why he is sworn in to pledge himself to the service of the same people; the Governor as the constitutional head of the State is reposed with the responsibility to accord primacy to the will and welfare of the people of the State and earnestly work in harmony with the State machinery, as his oath not only makes this mandate anything but clear but rather also demands it of the Governor owing to the intimate and delicate nature of the functions that he performs and the potency of the ramifications that could ensue or be unleashed upon the State. Due to this, the Governor must be conscious to not create roadblocks or chokehold the State Legislature in order to thwart and trade the will of the people for political edge. The members of the State Legislature having been elected by the people of the State as an outcome of the democratic expression are better attuned to ensure the wellbeing of the people of the State. Hence, any action contrary to the express choice of the people, in other words, the State legislature would be a renege of his constitutional oath’.

‘Before we part with the matter, we find it apposite to observe that constitutional authorities occupying high offices must be guided by the values of the Constitution. These values that are so cherished by the people of India are a result of years of struggle and sacrifice of our forefathers’.

‘When called upon to take decisions, such authorities must not give in to ephemeral political considerations but rather be guided by the spirit that underlies the Constitution. They must look within and reflect whether their actions are informed by their constitutional oath and if the course of action adopted by them furthers the ideals enshrined in the Constitution. If the authorities attempt to deliberately bypass the constitutional mandate, they are tinkering with the very ideals revered by its people upon which this country has been built’.

‘We hope and trust that the Governor and the State Government would work in tandem and harmoniously keeping the interests and well-being of the people as their paramount consideration’.

An objective analysis of the Judgment reveals that the Supreme Court has not said anything anew which is against or superseding the constitutional provisions of our country ‘India, that is Bharat’. The judgment rather reminds the overpoliticized- Governors to function and discharge their duties within the parameters laid down in the Constitution and promote the people’s will in law making.

Yes, Indian Parliamentary democracy further fostered by Supreme Court on 08.04.2025. The judgment is the law of the land now and will remain in the future, too.

Human Rights: Eternity and Universality

(By Kaleeswaram Raj, Lawyer, Supreme Court of India)

(Modified and edited version of the introductory speech delivered on the release of the book Human rights in Islam (Pharos Media, New Delhi,2025) written by Justice P.K. Shamsuddin, on 26th April 2025 at Bharat Tourist Home, Kochi).

Prof. Aravindakshan, who chairs this event, Justice K.M. Joseph, Justice Shamsuddin, Justice Alexander Thomas, Justice C.K.Abdul Rehim and the former judges off the dais, Father Anil Philip, Prof. M P Mathai, my dear friends, brothers, and sisters.

I am not an authority either on Islam or on Islamic jurisprudence. When the book authored by Justice Shamsuddin is being released here today by Justice K.M.Joseph, it might be on account of my proximity to both, rather than my intellectual entitlement, that instigated them to have me here to talk about the book! I am immensely grateful for this opportunity.

It was during my homework in connection with the cases challenging the Citizenship Amendment Act (CAA) that I came across Swami Vivekananda’s Chicago speech (1893). One might ask what is the connection between the CAA and Swami Vivekananda? As it is now well known, the amendment to the Citizenship Act is challenged inter alia on the ground that it discriminates people on the ground of religion, for granting citizenship. People from certain specified countries, barring the Muslims, are to get citizenship. Not only that the law discriminates on the ground of religion but rather it is this discrimination which is the very foundation of the law. This is the bone of contention in the case. In the historic speech Swami Vivekananda said- “I am proud to belong to a religion which has taught the world both tolerance and universal acceptance. We believe not only in universal toleration, but we accept all religions as true. I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth”.

No wonder, the book being released today authored by Justice Shamsuddin carries two remarkable passages from Swami Vivekananda’s complete works. Swami ji praised Islam and underlined its practical wisdom that supplements the “fine” and “wonderful” theories of Vedantism. Understanding religion is an effective device against religious fanaticism. This is what Justice Shamsuddin’s book also precisely does. And it is crucial to underline this proposition as we assemble here after hearing the shocking news about the massacre at Pahalgam on 22 April 2025 by the terrorists.

The book by Justice Shamsuddin is an excellent exposition of human rights in Islam. The language is clear, the propositions he put forward are authoritative. The book has altogether 24 Chapters. He gives a list of various rights described in the Holy Quran right in the first chapter and elaborates them by referring to the authoritative text in the Holy Quran, the commentaries on the Holy Quran and other foundational works by various scholars. These rights include, right to equality and equal protection of law(Chapter II &VI),right to life (Chapter III), right against arbitrary arrest or detention (Chapter), right to privacy and reputation (Chapter VIII), right to nationality (Chapter X), right to found family relations (Chapter XI), right to property (Chapter XII), right to freedom of thought (Chapter XIII), right to freedom of expression (Chapter XIV), right to freedom of Assembly and association (Chapter XV), right to take part in the country’s governance (Chapter XVI), right to social security(chapter XVII), right to work and equal pay for equal work (Chapter XVIII), right to education (Chapter XIX), right to participate in the cultural life (Chapter XX)etc. He examines many of these rights against the clauses in the Universal Declaration of Human Rights (UDHR), 1948. He has written extensively on gender justice in Islam in Chapter XXI and explained the Islamic textual approach towards minorities in Chapter XXII. The last chapter under the title “Bridging the gap between the UDHR and Shariah law” is elaborate and authentic.

Let me tell you honestly: I did not think that I would be able to read the book in its entirety before speaking to you, today. But, as a matter of fact, once I started it, I could not leave it unfinished, and I read it completely. Not because that I was required to do it as
I should introduce the book today, but rather, because the book was so captivating.

The work furnishes a great amount of knowledge to those who are not familiar either with the religion or with its right jurisprudence. There are many misconceptions about Islamic notions of polygamy, divorce etc. The author, however, says that “Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce” (Page 76). Yet the position of woman in modern constitutional schemes is fundamentally different from that in the Islamic view. This has been recognised even in certain Islamic countries, over a period. The author progressively pleads against blasphemy laws, which “in some Muslim-majority nations cast a long shadow, stifling freedom of expression and potentially leading to persecution” (Page173). Also he openly says that treating apostasy (leaving Islam) as a crime is against the spirit of the Holy Quran.

The book, in nutshell, speaks about the goodness of Islamic views related to human rights. There are certain interesting passages on maintenance of wives. When I started my independent practice in the 1990’s, one thing that I could notice was that the divorced Muslim women were getting higher quantum of maintenance under Section 3 of the Muslim Women (Protection of Rights) Act (1986), which was much more than what one would get under Section 125 of the erstwhile Cr.P.C. Yet, there was still a notion that Shah Bano Begum Judgment (1985) by the Supreme Court was radical and the1986 Act was reactionary. This has been one of the greatest superstitions in the Indian legal thought, which I had tried to expose about 35 years ago in an article. The provision was correctly interpreted by the Supreme Court holding that what is contemplated under the Act is a “reasonable and fair provision” to the divorced wife for her entire lifetime (and not only for the Iddah period). Justice Shamsuddin has thrown light into this aspect in Chapter XI, titled “Right to found family”.

It is not as if the book is beyond criticism. One can have disagreements with the author on several points. Justice Shamsuddin implies about the need to modernise and update the penal laws. He also indicates that countries like Turkey, Morocco and Tunisia have chosen secular legal system. He pleads for reinvigorating Islamic law by invoking the idea of ijtihad. He notes that “for various reasons, Muslims have sometimes strayed from (the) path of wisdom” and that “(the) faith has been reduced to mere rituals and formalities, devoid of the spiritual essence” (Page 186). He also notes that “some, in the name of defending religion, resort to cruelty, arrogance, and even violence” and “these actions contradict the wisdom and compassion embodied by Islam and its Prophet” (ibid). This sense of introspection is commendable. How far the principles in UDHR could be reconciled with Islamic ideas is a debatable point. Justice K.M.Joseph, in the foreword to the book has indicated the problematic issues underlying such ‘reconciliation’.

The book is written in simple prose with an excellent diction. It is well edited. The production is splendid. The editor and the publisher of the work also deserve encomium for the endeavour.

The book starts by saying “Islam is a misunderstood religion”. In a way, the entire work is an effort to erase this misconception. The author succeeds enormously in removing the wrong notions about the religion. At a time when the world in general and India in particular faces religious fanaticism from different sources, when religious terrorism poses serious threat to the country’s existence, the book reminds us about what Swami Vivekananda spoke in 1893, that I quoted in the beginning. A critical and organic reading of Justice Shamsuddin’s book is also a political imperative in contemporary India. However, it ultimately addresses a global audience.

The Constitution of India has tried to codify certain eternal values. Human rights, which are universal, transcend every individual religion and spread over the globe. To this, Islam has contributed immensely. The book also demonstrates this historical reality.

I wish the author and the book all the very best. Thank you!

Confidentiality – The Linchpin of the PoSH Law

(By Sridhar Rajagopalan, Chief Legal Officer, Automotive Robotics India Pvt. Limited, Chennai)
E-mail : Sri_raja62@yahoo.com                    Mob. 9940049221

The most important duty fastened on the employer under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (hereinafter referred to as PoSH Law) is to ensure and maintain confidentiality in sexual harassment matters at workplaces.

In this regard, Section 16 of the said law reads as under:

“ Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005),
the contents of the complaint made under Section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:

Provided that information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses”.

The phraseology employed in the above provision was constructed in such a way to provide emphasis on the importance of safeguarding the parties involved including the witnesses in terms of their privacy and safety both material and psychological keeping in view the sensitivities.

Further Section 17 reads as follows:

Penalty for publication or making known contents of complaint and inquiry proceedings.

“Where any person entrusted with the duty to handle or deal with the complaint, inquiry or any recommendations or action to be taken under the provisions of this Act, contravenes the provisions of section 16, he shall be liable for penalty in accordance with the provisions of the service rules applicable to the said person or where no such service rules exist, in such manner as may be prescribed”.

Rule 12:“Penalty for contravention of provisions of Section 16.- Subject to the provisions of Section 17, if any person contravenes the provisions of Section 16, the employer shall recover a sum of five thousand rupees as penalty from such person”.

What is prohibited under Section 16 and 17 of the Act is publication of the material information as indicated in the section and its knowledge being brought in the public domain by the press or media while the proceedings are held under the Act of 2013.

In the event of flouting the “confidentiality” by violating Section 16 of the PoSH Law, the aggrieved women will be reluctant to “speak up” as they are scared of the social stigma and the possible character assassination not only at the workplace but also in the society.

The Hon’ble Supreme Court has passed an order in the matter of XXXX v. Kancherla Durga Prasad & Ors. (W.P.(C) 3918/2021 which has directed its Registry that, personal information of a Petitioner and a Respondent in a sexual harassment case should be masked on the internet so that their details are not thrown up by search engines”

In a significant development in this segment of jurisprudence, the Bombay High Court has provided the Confidentiality Guidelines under the PoSH Law in P v. A & Ors. - Suit No: 142 of 2021 which read as follows:

1.   The names of the parties should not be mentioned in the orders and judgments. The orders and judgments are to read ‘A v. B’, or ‘P v. D’;

2.   In the body of the orders and the judgments, the parties are to be addressed as plaintiffs and defendants and not by their name;

3.   The orders and judgments should not mention any personally identifiable information, such as emails, mobile or telephone numbers and addresses.

4.   Similarly, witnesses’ names and addresses are not to be mentioned in the orders and judgments

5.   The orders and judgments passed on merits should not be uploaded on the internet but should be delivered in private; and

6.   no order should be pronounced in open court, only in judges’ chambers or in camera.

7.   Any form of recording of any part of the proceedings is strictly forbidden” and

8.   any attempt to record or transcribe any part of the proceedings will be treated as a contempt of court.”

In Thomas Antony v. State of Kerala (2025 KLT OnLine 1536 = O.P. (KAT) No.80 of 2025), the High Court of Kerala while delivering the judgment on 18th March 2025, has made the following observation:

   “During the course of hearing this petition, we noticed that at present there is no mechanism to anonymize the complainant, who alleges that she faced sexual harassment or other atrocities as envisaged by the POSH Act, in the various proceedings related to the enquiry. When the right to privacy is recognized as one of the important facets of the fundamental rights of a person, a complainant who raises such a grievance is also entitled to ensure that her whereabouts are anonymized from the public domain. That said, this should be done in such a manner not prejudicial to the rights of the employee against whom the complaint is made, while he defends the enquiry. For this purpose, we direct the first respondent to formulate necessary guidelines within a period off our months. We note that the Bombay High Court has issued certain guidelines in P v. A & Ors. (Suit No.142 of 2021 dated 24.09.2021.Though the said guidelines were framed mainly to ensure the privacy of the victim under the POSH Act during the court proceedings, if the government finds it appropriate to follow any part of the said guidelines with necessary variations, it can do so, irrespective of the fact that the Bombay High Court has later clarified that the said guidelines are not meant for general application”.

Gingerly steps:

a) The Corporate PoSh Policy designed in consonance with the PoSH Law should have a specific recital to lay emphasis on the importance of maintaining confidentiality, explaining the need for the same and also the repercussions of non-compliance by anchoring on Sections 16, 17 and Rule 12 of the PoSH Rules, 2013.

b) In addition to the General awareness programs to the employees of the organizations to sensitize them on the Posh Law, a well-designed esoteric training needs to be given to the IC members, the Department Heads and the Supervisors on the need to ensure and maintain confidentiality under this law. That is to say, they need to be trained not to discuss the sexual harassment complaint matters in public by using names of the parties, details of the complaint etc. They should be made to be hypersensitive in these matters to protect the reputation of the organization and the individuals’ image.

c) It would be advisable for the Internal Committee and the Management to be extra cautious and deal with the enquiry and the subsequent matters with abundant caution on the complaints under the PoSH Law to ensure protection of the privacy of the parties involved and as such proceedings are to be conducted in a secluded place away from the public view, right from the initial stages of the inquiry. 

d) Confidential information pertaining PoSH Law and the enquiry need to be stored with access control measures.