Can A Judgment be Invalidated

(By K.Ramakumar, Senior Advocate, High Court of Kerala)

 

The answer can only be in emphatic affirmative in view of the march of law on the point from Madan Gopal Kabra, Karnataka (1954)  to (2018) 6 SCC 213.

 

The Supreme Court, in West Ramnad Electric Distribution Co. v. State of Madras (AIR 1962 SC 1753), has made it clear, as follows:

“The infirmity proceeding from lack of legislative competence as well as the infirmity proceeding from the contravention of fundamental rights lead to the same result and that is that the offending legislation is void and non est. That being so, if the Legislature can validate actions taken under one class of void legislation, there is no reason why it cannot exercise its legislative power to validate actions taken under the other class of void legislation. Hence, it is not correct to say that where the contravention of fundamental rights is concerned, the Legislature cannot pass a law retrospectively validating actions taken under a law which was void because it contravened fundamental rights.”

 

In holding so the Court followed its own earlier decisions in Sunder Ramaier (1958) and Deepchand (1959). In S.S.Bola v. B.D.Sardana ((1997) 8 SCC 522) the functions of the judiciary and the legislature were adumbrated with exactitude in the following words;

 

“The function of the judiciary is to interpret the law and to adjudicate the rights of the parties in accordance with the law made by the legislature. When a particular Rule or the Act is interpreted by a court of law in a specified manner and the law making authority forms the opinion that such an interpretation would adversely affect the rights of the parties and would be grossly inequitous and accordingly a new set of rules or laws is enacted, it is very often challenged as in the present case on the ground that the legislature has usurped the judicial power.  In such a case the Court has a delicate function to examine the new set of laws enacted by the Legislature and to find out whether in fact the legislature has exercised the legislative power by merely declaring an earlier judicial decision to be invalid and ineffective or the legislature has altered and changed the character of the legislation which ultimately may render the judicial decision ineffective.The legislature can always render a judicial decision ineffective by enacting a valid law on the topic within its legislative field fundamentally altering or changing its character retrospectively. What is really prohibited is that the legislature cannot in exercise of its plenary power under Articles 245 and 246 of the Constitution merely declare a decision of a court of law to be invalid or to be inoperative in which case it would be held to be an exercise of judicial power.  Undoubtedly under the scheme of the Constitution the legislature does not possess the same.”

 

See however, the word of caution in State of Tamil Nadu v. Shyam Sunder (2011 (3) KLT Suppl. 4 (SC) = (2011) 8 SCC 737).

“The legislature could change the basis on which a decision was given by the Court and, thus, change the law in general, which would affect a class of persons and events at large.  However, it cannot set aside an individual decision inter parties and affect their rights and liabilities alone. A judicial pronouncement of a competent court cannot be annulled by the legislature in exercise of its legislative powers for any reason whatsoever. The legislature, in order to revalidate the law, can reframe the conditions existing prior to the judgment on the basis of which certain statutory provisions had been declared ultra vires and unconstitutional.”

 

See also Ishwar Dutt v. Land Acquisition Collector (2005 (4) KLT SN 66 (C.No. 91) SC = (2005) 7 SCC 190:-

“A Writ of Mandamus is required to be obeyed unless a judgment is overruled or a legislation by way of a validating statute is brought into force.”

 

The Supreme Court has declared that a disqualification arising from a judgment can be removed by legislature. See Kanta Kathuria v. Manak Chand (1969 KLT SN 38 (C.No. 76)
SC = AIR 1970 SC 694:

“By enacting the impugned Act the appellant’s disqualification has been removed and the 1951 Act is, so to say made to speak with another voice.  But that is what the State Legislature is entitled to do, as long as it does not touch the wording of the 1951 Act. The answer given by the 1951 Act may be different but this is because the facts on which it operates have by valid law been given a different grab.”

 

This was recently reiterated in State of Karnataka v. Karnataka Pawn Brokers Association (2008 (2) KLT SN 24 (C.No.32) SC = 2018 (2) KLT OnLine 2032 (SC) = (2018) 6 SCC 363) in the following words:

 

“On analysis of the relevant judgments it can be said that the Legislature has the power to enact validating laws including the power to amend laws with retrospective effect.  However, this can be done to remove causes of invalidity. When such a law is passed, the Legislature basically corrects the errors which have been pointed out in a judicial pronouncement. Resultantly, it amends the law, by removing the mistakes committed in the earlier legislation, the effect of which is to remove the basis and foundation of the judgment.  If this is done, the same does not amount to statutory overruling.”

 

“A judicial pronouncement is always binding unless the very fundamentals on which it is based are altered and the decision could not have been given in the altered circumstances. The Legislature cannot, by way of introducing an amendment, overturn a judicial pronouncement and declare it to be a wrong or a nullity.  What the Legislature can do is to amend the provisions of the statute to remove the basis of the judgment.”

 

What doubt therefore, can there be whether the legislature can step in to express the mandate of the people, by enacting a new law in the place of an invalidated law in response to the aspirations of the people. This power cannot any longer be disputed as in a democracy it is the will of the people that is paramount and is supreme and even the courts act subordinate to it.  There therefore, cannot be any doubt that even a judgment can be altered by bringing in appropriate amendment even retrospectively, which in turn in some cases may have the effect of even nullifying judicial pronouncements.

 

The attempt to overturn a judgment, no doubt, has been frowned upon in cases where the Legislature lacks competence. For instance,  the cases relating to Kaveri Water Dispute and the Karuna Medical Case from Kerala.

 

The Supreme Court of United States however, has been circumspect on the power of the Legislature to upset the judgment of the Supreme Court (See Plant v. Spendthrift (1995 115 SC 1447) and PRA Dusadh v. R (1944 FCR 61).

 

In fact in India an amendment to the Constitution was made to efface out the judgment of the Allahabad High Court declaring the election of a political leader void on the ground of corrupt practice (See AIR 1975 SC 229). It is part of the history of our country that the judgments of a constitutional court in the Bank Nationalization case and the Privy Purse case were set at naught by subsequent legislations.

 

Indubitably people’s wishes can be taken note of and should be taken care of by the Legislature in the event it felt that legislation is needed and it can act even retrospectively.

 

How then could it be argued that a Legislature representing the will of the people in a democracy is utterly helpless in the event the Court steps in to invalidate a law? They sound jejune and puerile.

Just Grin and Bear it

(By K. Ramakumar, Senior Advocate, High Court of Kerala)

 

Some are more equal even in the eyes of law in a country in which the fourteenth Article of the Constitution is not merely a fundamental right but a charter of faith in equality. What is good for the goose need not be good for the gander always.

 

The Kerala Law Times, the premier Law Journal of the State deserves kudos for making available the full text of a significant judgment reporting it in 2018 (3) KLT 1087
(Uttarakhand).

 

A Judge of the Uttarakhand High Court Sri.Justice Lok Pal Singh on the 9^th of May, 2018 and on the 11^th as well while holding the Court used the following expression:- “unlike other Judges he is not in a habit of changing orders in his chamber”  and in Hindiabout a Senior Advocate and a former Judge of a High Court “yes, I know what kind of a Lawyer he is, and what kind of a Judge he was”.A practicing Advocate of the same Court brought action in contempt against the Judge after moving the Advocate General of the State.  The Advocate General rejected the application for sanction in the following manner:-

“I have gone through the contents of the contempt petition and the affidavit and I find that the instance of 11^th May,2018 occurred with myself and consequently the Hon’ble Judge has passed an order against me and the Government Advocate, hence, although the facts as mentioned do make out a case of sanction, yet in order to avoid any allegations of bias, I am not in a position to accord formal sanction.”

 

A Division Bench of the Uttarakhand High Court therefore had the unpleasant occasion to deal with the issue whether a Judge of a Court of Record can be proceeded in Contempt “of his own court”.  With great respect to the Judges constituting the Division Bench, the judgment no doubt makes brilliant reading. The Judges have prefaced the judgment:-

“We must record that this whole exercise has not been pleasant for us.  It is a very unusual case, to say the least.  Still we must give a decision and we do that ‘with malice towards none, with clarity for all, we must strive to do the right, in the light given to us to determine that right. (We found this reference of Abraham Lincoln’s speech in the seminal judgment of Justice Sabyasachi Mukharji in the case of P.N.Duda v. P.Shiv Shanker reported in (1998) 3 SCC 167), and that is to be taken as our source.”

On the merits of the matter the Judges have recorded as follows:-

“Intemperate comments and undignified banter, as the Hon’ble Apex Court refers above, also undermines the public confidence in a Judge, Public confidence, which is an absolutely essential condition for realizing the judicial role. (The Judge in a Democracy – Aharon Barak Princeton University Press).  Public confidence does not mean being popular in the eyes of the public or being pleasant. ‘On the contrary, public confidence means ruling according to the law and according to the Judge’s conscience, whatever the attitude of the public may be.  Public confidence means giving expression to history, not to hysteria’ (Aharon Barak (supra) page110). Public confidence is also the ultimate strength of a Judge.  Eugen Ehrlich, the noted sociologist had famously said ‘there is no guarantee of justice except the personality of the judge’.  This personality we must remember, is always under a close watch of a litigant, who quietly sits in a corner of a courtroom, judging the justice!”.

 

Yet the Court was compelled to reject the petition in these words:

“Although in the absence of a consent of the Advocate General, this Court can take action on its own motion, but presently this channel  is not open to us here, as proceeding of contempt cannot be initiated against a Judge of a Court of Record, on a charge of ‘committing a contempt of his own court’.”

In holding so, the Division Bench relied upon the decision of the Apex Court in Prakash Chand((1998) 1 SCC 1)in which the Apex Court held as follows:-

“Even otherwise it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against a Judge of a Court of Record for a judicial act done by the Judge.  The remedy of the aggrieved party against such an order is to approach the higher forum through appropriate proceedings.  Their immunity is essential to enable the Judges of the Court of Record to discharge their duties without fear or favour, though remaining within the bounds of their jurisdiction.  Immunity from any civil or criminal action or a charge of contempt of court is essential for maintaining independence of the judiciary and for the strength of the administration of justice”.

The Apex Court quoted from Salmond and Heuston  on the Law of Torts:-

“A Judge of one of the superior courts is absolutely exempt from all civil liability for acts done by him in the execution of his judicial functions.  His exemption from civil liability is absolute, extending not merely to errors of law and fact, but to the malicious, corrupt or oppressive exercise of his judicial powers.  For it is better that occasional injustice should be done and remain unaddressed under the cover of this immunity than that the independence of the judicature and the strength of the administration of justice should be weakened by the liability of judges to unfounded and vexatious charges of errors, malice, or incompetence brought against them by disappointed litigants - ‘otherwise no man but a beggar, or a fool, would be a judge’.”             (underlining supplied)

 

What then is the fall out of the judgment of the Uttarakhand High Court?  The Law is different for Judges of a Court of Record and other Judges?  Section 16 of the Contempt of
Court Act reads as follows:-

“16. Contempt by Judge, Magistrate or other person acting judicially – (1) Subject to the provisions of any law for the time being in force, a Judge, Magistrate or other person acting judicially shall also be liable for contempt of his own court or of any other court in the same manner as any other individual is liable and the provisions of this Act shall, so far as may be, apply accordingly.

 

Under that provision it is obvious to any reader that the expression ‘Judge’ includes all judges.  It is true that the expression ‘Judge’ is not defined in the Contempt of Courts Act.  But then there is no provision in the Contempt of Courts Act exempting Judges of the High Court or of a Court of Record from the purview of that Act.  If that was so, Justice
Sri .Karnan of the Madras High Court could not have been proceeded against in contempt.  Also because the Supreme Court held in Baradakanta v. Registrar AIR 1974 SC 710 that “a Judge can foul judicial administration by misdemeanour while engaged in the exercise of the functions of a Judge”.  How then can a Judge of a Court of Record misbehaving is exempt while a Judge of the Subordinate Court misbehaving likewise objectionably is answerable in contempt ?  A Lawyer misbehaving in a Court is also equally liable while the Judge of a Court of Record even if he misbehaves is not..

 

Is this justifiable in a country where equality of law is sacrosanct. From the podiums of Law Colleges and platforms in every judicial function it is proclaimed Lawyers and Judges are two sides of the same coin.  Can there be a different law to one side of the coin and the other ? Not according to the resounding words of the Supreme Court on equalizing principles.  Let me quote fromRoyappa:-

“It is a founding faith, to use the words of Bose. J., ‘a way of life’, and it must not be subjected to a narrow pedantic or lexicographic approach.   We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude.   Equality is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined and confined’ within traditional and doctrinaire limits.  From a positivistic point of view, equality is antithetic to arbitrariness.   In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch.  Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law.. . . . . . . . . . . .”

This equality clause has been elevated to high moral grounds recently in favour of the transgenders and the women in two moralistic judgments of the Supreme Court declaring invalid Sections 377 and 497 of the Indian Penal Code. Can the Subordinate Judges of our judicial system who bear the brunt of the onerous work be then subjected to discrimination in the matter of contempt ?

 

The different law concept cannot be supported with reference to the provisions of the Contempt of Courts Act or justified under the equality clauses of the Constitution of India.  After all a Court takes in Lawyers also as declared by the Supreme Court in Baradakanta:- 

The Apex Court approved the following view on ‘Court’ :-

“An organized body with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz., attorneys and counselto present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands, and secure due order in its proceedings.”     (underlining supplied)

 

The Counsel therefore, are an integral part of a Court.  How then can be discrimination in the matter of contempt jurisdiction in regard to some among the court omitting altogether a Judge ? Will it bear scrutiny of the proclaimed principles of equality in our Constitution ?  Prima facie, it will not, because contempt is not of the Judge but of the court. If the view of the Apex Court is that “the image and personality of the High Court as an integrated one” shall be protected in the contempt jurisdiction. A Judge’s impermissible conduct within the court room will undoubtedly debunk him as a Judge and cast a shadow of darkness on the image of the Court.  How can then it be anything other than contempt ?

 

The Apex Court in Prakash Chandsaid:- “It is a fundamental principle of our jurisprudence that no action can lie against a Judge of a Court of Law for a judicial act done by the Judge. (mark judicial act). Can this fundamental principle over-ride the supreme fundamental right under the Constitution of India to equality between Lawyers and Judges constituting together ‘the court’? Can there be one law for one functionary within it and another law for the other? The answer can only be ‘no’.

 

Look at the stark discrimination in that branch of law. The Allahabad High Court punished Sri. C.Y. Chinthamani and Sri K.D. Malaviya for publishing a criticism to the effect that comparatively undeserving lawyers were being frequently raised to the Bench. (See AIR 1935 All.1).  The same view was repeated recently, openly and frankly by a judge of the Hon’ble High Court of Kerala in his retirement speech.  Will that also therefore, constitute contempt ? If so, can there be a distinction between the persons who voice such views?.

Justice Sri Karnan, unjustifiably crossing the limits of decorum, decency and dignity, made wild accusations against various Judges. But, he was doing it as a Judge.  He was therefore, committing contempt of the other judges and also of his own court.  Still that Judge of a Court of record was found guilty by the Apex Court and sent to jail.

In the ultimate analysis therefore, Prakash Chandand the Patna High Court and the view echoed by the Uttarakhand High Court eminently require re-visitation and a clear enunciation of the law regarding ‘contempt of his own court’  needed.

 

Till then, dear learned friends, even if you are hurt, humiliated or insulted, just grin and bear it.

Far-Sighted Judicial Dissents

(By S.K.Premraj Menon, Advocate, High Court of Kerala)

 

‘A dissent in a Court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the Court to have been betrayed’, said Charles Evans Hughes - the 11^th Chief Justice of the United States Supreme Court during his second lecture at Columbia University. This locus classicuswas quoted with approval by two of the finest and scholarly Judges of the Supreme Court of India - Justice H.R.Khanna in A.D.M, Jabalpur v. Shivakant Shukla (AIR 1976 SC 1207) and Justice R.F.Nariman in Justice K.A.Puttaswamy (Retd.) & Anr. v. Union of India & Ors.(2017 (4) KLT 1 (SC) = AIR 2017 SC 4161), while overruling A.D.M, Jabalpur v. Shivakant Shukla(supra)

 

The classic dissenting judgments which are dealt with herein illustrates how the learned Judges expounded the nuances of law and expressed themselves, unconstrained by the need to persuade their adversary Judges, and their brilliant contrasts to the majority views, to open the shades of justice, pointing out those vitals facets on which the majority missed their marks. The ends of the Constitution – justice, liberty, equality and fraternity are sacrosanct as they reinforce our constitutional values. Being so, weren’t those majority opinions evil, as opposing the very Constitution, thwarting with the will of the people as being antithesis of our Constitution’s goals.

 

Till 1966, the Privy Council judgments (advices to the Monarch), never had a single dissent for the reason that the Judicial Committee could only give a unanimous opinion, with no differing voices, in accord with an order of Charles I during 1627. Due to this strange practice, Justice Mukund Ramrao Jayakar – a Judge of the Federal Court, who later become a Member of the Privy Council had to write a judgment, though he had an entirely different view. The Judicial Committee (Dissenting Opinions) Order, 1966, now permits dissenting
opinions in the Privy Council.

 

Article 21 of our Constitution which is said to be not merely a twinkling star in the high heavens to be worshipped and rendered vociferous lip-service only, but indeed an actually meaningful protective provision, was under consideration in A.K.Gopalan v. State of Madras (AIR 1950 SC 27), which was a case of habeas corpus in a case under the Preventive Detention Act, 1950, wherein, inter alia, the reach of Article 21 was deliberated at great length by a six Judge Bench of the Apex Court. The majority headed by Chief Justice H.J.Kania, propounding the doctrine of directness of legislature, took a narrow view holding that Article 21 had no relationship with Articles 14 and 19, observing that personal liberty has nothing to do with rights under Article 19, which talks about different type of liberty and also held that Article 14 which speaks about reasonableness too had no relationship with Article 21. The majority virtually made a literal interpretation of the words ‘procedure established by law’, appearing in Article 21. Voicing against five of his brother Judges, Justice Saiyid Fazl Ali, meaningfully examined and interpreted the fundamental rights, broadly construing the provision ‘procedure established by law’ in Article 21, holding to encompass higher principles of natural law and justice, and not just the statutory law as held by the majority. He went on to hold that the Indian Constitution intended to incorporate the same language as the relatively new Japanese Constitution and encompass ‘due process of law’ conception. He cited various foreign precedents to support a much more expanded view of the due process. He held that the principles of natural justice are part of the general law of the land and are required to be read into Article 21. The majority view held the field for around twenty years which led to anomalous results. In Rustom Cavasjee Cooper v. Union of India(1970 KLT SN 5 (C.No.9) SC = AIR 1970 SC 564), widely known as the Bank Nationalization case, in which the constitutionality of the Banking Companies (Acquisition of Transfer of Undertakings) Act, 1969 was under challenge, the eleven Judge bench of the Apex Court quashed the legislation as being violative of Articles 14, 19 and 31 of the Constitution, upholding the minority view expressed by Justice Saiyid Fazl Ali in A.K.Gopalan v. State of Madras(supra). This view was later reiterated in Maneka Gandhi v. Union of India & Ors.(1978 KLT OnLine 1001 (SC) = AIR 1978 SC 597) spelling out that the procedure prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary.

 

In Romesh Thappar v. State of Madras (AIR 1950 SC 124), the first important case on free speech, the constitutionality of Section 9(1-A) of the Madras Maintenance of Public Order Act, 1949 was challenged before the Supreme Court of India. This Section allowed the State Government, for the purpose of securing public safety and maintaining public order, to control and regulate the entry and circulation of any set of documents (primarily newspapers) in the State. The Apex Court, therefore, had to clarify the meanings of the terms ‘public order’, ‘public safety’ and ‘undermines the security of the State’. It defined ‘public order’ as that ‘state of tranquility which prevails among the members of a political society’. On technical grounds, it found that ‘public safety’ meant, in this context, the same thing. Undermining the security of the State – the Article 19(2) clause meant ‘nothing less than endangering the foundations of the State or threatening its overthrow’. Hence there was a clear difference in degree between the two clauses. The Court also cited the fact that the word ‘sedition’ in Article 13(2) of the Draft Constitution had been deleted and replaced by the present formulation of Article 19(2) and the narrow definition of sedition affirmed by the Privy Council in King Emperor v. Sadashiv Narayan Bhalerao (AIR 1947 PC 82) implied that there were very narrow and stringent limits enunciated in Article 19(2) as freedom of speech lay at the very foundation of all democratic organizations and without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible, thus holding that Section 9 (1-A) of the Madras Maintenance of Public Order Act which used the broader phrase ‘public order’, was unconstitutional. Justice Saiyid Fazl Ali dissented, and the reasons for his dissent were elaborated in Brij Bhushan v. State of Delhi (1951 KLT 1 (SC) = AIR 1950 SC 129), where the issue was essentially the same. In that case, Section 7(1)(c) of the East Punjab Public Safety Act, 1949 which allowed pre-publication scrutiny of material ‘prejudicial to public safety or the maintenance of public order’ essentially, pre-censorship was challenged. The majority followed the decision and reasoning in Romesh Thappar v. State of Madras (supra). Justice Saiyid Fazl Ali on the other hand held that ‘public order’, ‘public safety’, ‘sedition’ and ‘undermining the security of the State’ essentially amounted to the same thing. Applying somewhat convoluted logic, he held that because sedition undermines the security of the State usually through the medium of public disorder and therefore it is difficult to hold that public disorder or disturbance of public tranquility are not matters which undermine the security of the State. In the 1^st amendment to the Constitution during 1951, the words ‘undermines the security of, or tends to overthrow the State’ was replaced by ‘in the interests of public order’. Thus three of the dissents of Justice Saiyid Fazl Ali became law. Another dissent of Justice Saiyid Fazl Ali’s was in Kesavan Maadhava Menon v. State of Bombay (AIR 1951 SC 128), wherein a prosecution under the Press (Emergency Powers) Act, 1931 was under challenge. The core issue were whether Sections 15(1) and 18(1) read with the definitions contained in Sections 2(6) and 2(10) of the Press (Emergency Powers) Act, 1931 were inconsistent with Article 19(1)(a) and that assuming that they were inconsistent, whether the proceedings commenced under Section 18(1) of that Act before commencement of the Constitution could be proceeded with. Though the majority held that prosecution could be proceeded with, Justice Saiyid Fazl Ali, dissented holding that by operation of Article 13(1) of the Constitution, the law which is in conflict with the fundamental rights was never a good law after 26^th January 1950 and the prosecution cannot continue as the law which made the act an offence has itself become completely ineffectual and nugatory. Justice B.K.Mukherjee agreed with this view.

 

Justice K.Subba Rao’s legendary dissent in Radeysham Khare v. State of Madhya Pradesh(AIR 1959 SC 107) where the question arose as to the nature of the powers of the State Government to supersede the Committee of a Municipality and whether it was necessary to give a hearing to the Committee before superseding it, even though the Central Provinces and Berar Municipalities Act, 1922 did not provide for such an opportunity. The majority held that no such opportunity was obligatory. They held that merely because the Act required the Government to pass a reasoned order, it did not mean a duty to record a judgment judicially arrived at, though they recognized that an order of supersession does cast a slur upon the Committee and its members. Justice K.Subba Rao in his dissent, took a contrary view, stating that the duty to act judicially may not be expressly conferred but may be inferred from the provisions of the statute. It may be gathered from the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute. In short, a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inexorable rule of guidance. Applying the said principle, he held that the power under Section 53-A of the Central Provinces and Berar Municipalities Act, 1922 Act could be exercised only on the happening of three conditions viz., (i) incompetence of the Committee to perform its duties, (ii) formation of opinion by the State Government that appointment of a special officer would improve the working of the Municipality and (iii) obligation to pass a reasoned order. He held that these requirements called for a duty to act judicially which includes a duty to give a hearing to the Committee. This dissent ultimately found its fruition in A.K.Kraipak & Ors. v. Union of India & Ors.

(1969 KLT SN 15 (C.No.29) SC = (1969) 2 SCC 262) where it was held that the dividing line between administrative and quasi-judicial function has become quite indistinguishable and that the test is whether the action of the authority affects the rights or the interests of a person and if it does, he must be heard, whether you call it the principles of natural justice or the duty to act fairly. Justice K.Subba Rao’s next dissent soon followed in Basheshar Nath v. C.I.T., Delhi and Rajasthan(AIR 1959 SC 149), wherein a question was raised whether it was open to a citizen to waive the fundamental rights conferred upon him by Part III of our Constitution. Justice S.K.Das thought that that question did not really arise on the facts of that case while Chief Justice S.R.Das and Justice J.L.Kapur thought that whatever may be the position with respect to other fundamental rights, a citizen cannot waive a breach of Article 14. They were of the opinion that Article 14 was not a right conferred upon the citizens as such but a mandate to the State not to discriminate, and since the said mandate is based upon public policy, the citizen has no right to waive it. Justice K.Subba Rao took a more liberal view and held that the entire Part III and not merely Article 14 were conceived in public interest and that all of them confer rights upon citizens. He opined that it is not proper that the fundamental rights created under the various articles should be dissected to ascertain whether any or which part of them is conceived in public interest and which part of them is conceived for individual benefit and accordingly held that no citizen can waive any of his fundamental rights. Justice N.H.Bhagwati agreed to this view. Even today, Article 14 is known to have both a negative and an affirmative content - the view propounded by Justice K.Subba Rao. In Pandit M.S.M. Sharma v. Sri Krishna Sinha & Ors.(AIR 1959 SC 395), commonly known as the Searchlight case, Justice K.Subba Rao dissented again. The question was whether the Press has the fundamental right under Article 19(1)(a) to publish the speech of the members of a legislature, which was expunged by the Speaker. Justice K.Subba Rao in his strong and progressive dissent, demolished the claim of the majority and observed that the House of Lords asserted the privilege in 1801 when its proceedings were published mala fide, though they were expressly ordered to be expunged. He emphasized on the principles of democracy and said that the proceedings of the houses of Parliament or legislature should be made public. It would be in the interest of the nation that people must know what is happening inside the house. To support his point, he referred to Chief Justice Cockburn in Wasan v. Walter((1868) 4 QB 73), who effectively rejected the significance of the privilege claimed in modern democracy. Though amendments were made in Articles 105(3) and 194(3) of the Constitution, claiming transparency, the position remains basically the same as it stood earlier. Justice M.N.Venkatachaliah Commission had recommended that privileges should be defined and codified for the free and independent functioning of the legislatures. Thus denial on part of legislature is against the spirit of the Constitution. Another great dissent of Justice K.Subba Rao was in Kharak Singh v. State of Uttar Pradesh & Ors. (AIR 1963 SC 1295) which dealt with the validity of a provision in the U.P.Police Regulations, raising a question as to the meaning and scope of the expression ‘personal liberty’ in Article 21. While the majority took a restricted view, Justice K.Subba Rao took a more expansive view, with which Justice J.C.Shah agreed. He held that no doubt the expression ‘personal liberty’ is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression ‘personal liberty’ in Article 21 excludes that attribute. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person’s fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action. But that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned. In Maneka Gandhi v. Union of India(supra), Justice P.N.Bhagwati held that the majority judgment in Rustom Cavasjee Cooper v. Union of India(Supra) had the effect of overruling the majority opinion in Kharak Singh v. State of Uttar Pradesh & Ors.(supra) and of approving the minority opinion of Justice K.Subba Rao. The dissenting opinion of Justice K.Subba Rao in New Maneck Chowk Spinning and Weaving Co. Ltd., Ahmedabad v. Textile Labour Association, Ahmedabad(AIR 1961 SC 867) laid the foundation of the Payment of Bonus Act, 1965.

 

Chief Justice M.Hidayatullah is also known for his great dissents. In New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar(1963 KLT OnLine 1202 (SC) = AIR 1963 SC 1207),
dealing with a case under the Sugar and Sugar Products Control Order, 1946 and also with the aspect of sale, which could be taxed under the Bihar Sales Tax Act, 1947, the majority referring to the Sale of Goods Act, 1930 and held that there was no sale and hence there was no question of taxation. Justice M.Hidayatullah (as he was then), taking note of the sales tax imposed on goods assumed by different forms in different countries, which led to the recommendations of the Taxation Inquiry Committee for the entry in the Government of India Act 1935, went on to interpret the word ‘sale’ referring to the Roman Law of emptio venditioas well as the Indian Contract Act 1872 held that in the transactions there was a sale of sugar for a price and the tax was payable. This dissent was later upheld by a seven Judge bench of the Apex Court in M/s. Vishnu Agencies Pvt. Ltd. v. Commercial Tax Officer & Ors. ((1978) 1 SCC 520). In Bhagwandas Goverdhandas Kedia v M/s. Girdharilal Parshottamdas and Co. Ltd. & Ors.(AIR 1966 SC 543), the respondents/plaintiffs entered into a contract with the appellants by long-distance telephone. The proposal was spoken by the respondent at Ahmedabad and the acceptance was spoken by the appellants at Khamgaon. On the issue of jurisdiction, the trial Court found that the plaintiffs had made an offer from Ahmedabad by long distance telephone to the defendants to purchase the goods and that the defendants had accepted the offer at Khamgaon, that the goods were under the contract to be delivered at Khamgaon and that payment was also to be made at Khamgaon. The contract was, in the view of the Court, to be performed at Khamgaon and because the offer was made from Ahmedabad to purchase goods, the Court at Ahmedabad could not be invested with jurisdiction to entertain the suit. But, the Court held that when a contract is made by conversation on telephone, the place where acceptance of offer is intimated to the offeror, is the place where the contract is made and therefore the civil Court at Ahmedabad had jurisdiction to try the suit. A revision filed by the defendants against the order, directing the suit to be proceeded on the merits, was rejected in limineby the High Court of Gujarat, against which, an appeal was preferred to the Supreme Court of India. The majority preferred to endorse the rule laid down in Entores Ltd. v Miles Far East (1955 (2) QB 327) that where a contract is made by instantaneous communication, like by telephone, the contract is complete only when the acceptance is received by the offeror, since generally an acceptance must be notified to the offeror to make a binding contract. The Court upheld the judgment of the trial Court which took the view that a part of the cause of action arose within the jurisdiction of the City Civil Court Ahmedabad, where acceptance was communicated by telephone to the plaintiffs. Justice M.Hidayatullah (as he was then) expressed his dissenting opinion, painstakingly deducing that there are four classes of cases which may occur when contracts are made by telephone viz., (i) where the acceptance is fully heard and understood, (ii) where the telephone fails as a machine and the proposer does not hear the acceptor and the acceptor knows that his acceptance has not been transmitted, (iii) where owing to some fault at the proposer’s end the acceptance is not heard by him and he does not ask the acceptor to repeat his acceptance and the acceptor believes that the acceptance has been communicated and (iv) where the acceptance has not been heard by the proposer and he informs the acceptor about this and asks him to repeat his words. Considering the very language employed in Section 4 of the Indian Contract Act, 1872, he held that it covers the case of communication over the telephone, that contract was complete at Khamgaon and allowed the appeal with costs. The lone dissenting voice Justice M.Hidayatullah (as he was then) in Naresh Shridhar & ors. v. State of Maharashtra & Ors.(1966 KLT OnLine 1204 (SC) = AIR 1967 SC 1), challenging Justice V.M.Tarkunde’s oral order forbidding publication of what transpired in the Court during recording of evidence in a defamation case, adding that no written order was necessary and that he expected that his oral order would be obeyed, to be violative Article 19(1)(a) of the Constitution, as against a majority of eight learned Judges, he held that the Judges, both in their administrative as well as judicial capacity are not totally immune from the challenge of infringement of fundamental guarantees. He said that it is true that Judges, as the upholders of the Constitution and the laws, are least likely to err but the possibility of their acting contrary to the Constitution cannot be completely excluded. By way of illustration he says if a Judge, without any reason, orders the members of say one political party out of his Court, those so ordered may seek to enforce their fundamental rights against him and it should make no difference that the order is made while he sits as a Judge. Even if appeal lies against such an order, the defect on which relief can be claimed, is the breach of fundamental rights. He held that Judges could not prohibit publication of what transpired in open court because such proceedings were open to all Indian citizens as public hearing of cases before Courts is as fundamental to our democracy and system of justice as to any other country. Considering whether a Writ Petition under Article 32 can at all lie against a Judge in respect of any action performed by him while in the seat of justice, interpreting the definition of ‘State’ in Article 12, he held that the definition does not say fully what may be included in the word ‘State’ but, although it says the word includes certain authorities, it does not consider it necessary to say that Court and Judges are excluded. He also considered Article 20, which speaks of convictions for offences, punishments and testimonial compulsion is addressed as much to Courts as to executive and other authorities, venturing to think that the worst offenders would be the Courts if they went against this prescription. He thus quashed the order of Justice V.M.Tarkunde and declared that the forbidden testimony is capable of being reported in extensoin any newspaper in India. This outstanding dissent is fortified by remarkable reasoning.

 

Another great dissent was the one made by Justice H.R. Khanna in A.D.M, Jabalpur v. Shivakant Shukla(supra), popularly known as the Habeas Corpus case, decided by the Supreme Court on 28^th 1976, by a five Judge bench. In this case, Justice Khanna was the lone dissenter. The Additional District Magistrate of Jabalpur appealed against the Madhya Pradesh High Court’s verdict favouring the detenu Shivakant Shukla, which was the lead case. The Supreme Court set aside nine High Court judgments including the Madhya Pradesh High Court’s, which had ruled in favour of the enforcement of fundamental rights during the Emergency, upholding the Presidential Order dated 27^th June 1975. The majority concluded that the Presidential Order had declared that the right of any person to move any Court for any enforcement of the rights conferred by Articles 14, 21 and 22 of the Constitution and all proceedings pending in any Court for the enforcement of those rights would remain suspended for the period during which the proclamation of Emergency was in force. Justice H.R.Khanna, rejecting the majority view in the most righteous indignation, held that Article 21 cannot be considered to be the sole repository of the right to life and personal liberty. Sanctity of life and liberty was not something new when the Constitution was drafted and the principle that no one shall be deprived of his life and liberty without the authority of law was not the gift of the Constitution and that even in the absence of Article 21, the State has got no power to deprive a person of his life or liberty without the authority of law. He reasoned that even before the Constitution came into force, no one could be deprived of his life or personal liberty without the authority of law. Such a law continued to be in force after the Constitution came into force in view of Article 372. This lone dissent has after elapse of four decades ripened to law in Justice K.A.Puttaswamy (Retd) & anr. v. Union of India & ors.(supra). One can never forget that this dissent cost Justice H.R.Khanna the post of the Chief Justice of India, while overlooking his seniority, Justice M.H.Beg was appointed as the Chief Justice of India, as a result of which, Justice H.R.Khanna resigned.

 

Perhaps the greatest dissent of all, in my humble opinion is the one by Justice J.Chelameswar in Supreme Court Advocates-on-Record Association & Anr. v. Union of India(2016 (1) KLT 193 (SC) = (2016) 5 SCC 1)known as the NJAC case, which dissent drew a parallel between him and Justice H.R.Khanna. He was the lone Judge in the Bench to uphold the validity of the National Judicial Appointments Commission Act, 2014, which was the subject matter of challenge. He held that transparency is a vital factor in constitutional governance, which also was a facet of rationality. The need for transparency is more in the case of appointment process and proceedings of the collegium were absolutely opaque and inaccessible both to public and history, barring occasional leaks. He went on to boldly hold that assumption that primacy of the judiciary in the appointment of Judges is a basic feature of Constitution is empirically flawed, pointing out that there were cases where the Apex Court Collegium had to retrace its steps, after rejecting recommendations of a particular name suggested by the High Court Collegium giving scope for a great deal of speculation. He held that the present Collegium system lacks transparency, accountability and objectivity, which view was agreed by Justice Kurian Joseph. Justice J.Chelameswar went on to say that exclusion of the Government from the process of appointing Judges would be wholly illogical and inconsistent with the foundations of the theory of democracy and a doctrinal heresy, adding that Attorney General Mukul Rohatgi was right in his submission that exclusion of the executive branch is destructive of the basic feature of checks and balances - a fundamental principle in Constitutional theory.

 

These dissents strengthened the value of free speech and expression, and are based on effective and judicious considerations. In the recent past, there is a gradual decline in use of free expression of dissent. This declining trend of dissenting opinions raises several questions including the capability and credibility of the Indian judicial system as well. It is the inherent power of dissent that helps to build the very foundation of democracy. It is the power of dissent that keeps our nation afloat.

Legislations Against the Maxim “Actus Legis Nemini Facit Injurium”

(By H.Sajeer, Section Officer, Law Dept.,Govt.Secretariat,Thiruvananthapuram)

 

The title maxim means the act of law injures no one. But recent legislations pressing it to do some thing against this principle.

 

Now the Negotiable Instruments (Amendment) Act 2018 is on screen. As per the amendment a new section, Section 143 A was inserted in the Parent Act. It reads,

“143A. (1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant-

(a) in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and

(b) in any other case, upon framing of charge.

(2) The interim compensation under sub-section (1) shall not exceed twenty per cent, of the amount of the cheque.

(3) The interim compensation shall be paid within sixty days from the date of the order under sub-section (1), or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque.

(4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.

(5) The interim compensation payable under this section may be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973.

(6) The amount of fine imposed under Section 138or the amount of compensation awarded under Section 357 of the Code of Criminal Procedure, 1973, shall be reduced by the amount paid or recovered, as interim compensation under this section.”.

 

On going through the amendment it is literally clear that the court may, while trying an offence under Section 138 of the Act, order the drawer to pay interim compensation to the complainant either at the time of read over the accusation made in the complaint (in a summary trial or summons case) or upon framing of charge.

The first limb of the amendment itself clear that the interim compensation is to be given only at the mid period of the case and not at the beginning. That means the complainant cannot move a criminal miscellaneous petition praying for interim compensation at the time of filing the petition.

 

Sub-section (2) of the newly inserted Section, section 143 says that the interim compen-sation under sub-section (1) shall not exceed twenty per cent of the total cheque amount.

While going through the above section it is seen that the passing of the order is only the discretion of the court, which entertain the matter. But if we go through the next
sub-section i.e., sub-section (3) it is seen that the interim compensation shall be paid within sixty days from the date of the order or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque. Here it is clear that once the order is passed the drawer of the cheque has no option, than to pay the amount to the complainant within the time stipulated in the order. It is also seen from the amendment that after contesting case if the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.

Almost ninety five percent of the cheque cases are filed by the compalinants by filling amount on it, according to their whims and fancies. The drawer may borrow an amount from a money lender and issue a blank signed cheque, for the security of the amount. Though the interest had been paid regularly the unscrupulous money lender may fill an amount larger than that of the actual one and present before bank. Again he may send notice to the drawer demanding exorbitant amount. Atlast he may file a petition before court by shedding false and frivolous stories.

 

The unscrupulous money lenders are not poor persons who need to be given interim compensation like that of an injured in the motor accident case. In the latter, he is to be given interim compensation for meeting his daily medication and treatment. But on the other hand the financiers ,creditors, money lenders ,hirers etc., need not be compensated for
their enrichment.

 

Nowhere in the amendment states that the default payment caused any sentence to the drawer or the complainant.

When we move to the sub-section (5) it is seen that the interim compensation may be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973.

Section 421 of the Cr.P.C. says, when an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine, it may issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender or issue a warrant to the Collector of the district, authorising him to realise the amount as arrears of land revenue from the movable or immovable property, or both, of the defaulter. Suppose if the drawer has no movable or immovable property of his own the recovery can be effected as if it is a land revenue due to land.

 

It is seen that the term offender is neither defined in the Indian Penal Code, the Criminal Procedure Code nor in the Negotiable Instruments Act. Awarding of interim compensation cannot be construed as sentence. Then how can Section 421 of Cr.P.C. will apply for recovering an amount once awarded under the new amended Act.

Another feature of the amendment is that it inserted a new section, Section 148, which reads :-

“148. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,

(2 of 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court:

Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under Section 143A.

 

(2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant.

 

(3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:

Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the complainant.”.

 

Legislature says, if the accused was paid a compensation amount of twenty percent of the cheque amount in the trial court, as per the direction of it, then the trial court finds that the accused was guilty, and if the accused preferred appeal, then again he shall deposit twenty percent of the total amount of cheque before the appellate court, the appellate court then release the amount to the complainant.

 

From the above reading it is clear that the legislation is not complied with the basic principles of law. Suppose if the trial court or the appellate court finds that the accused is innocent or the prosecution could not establish a prima facie case against the accused, then who will compensate the accused for his mental agony and sufferings that he had faced in the trial court. If the complainant obtained the cheque in an unlawful manner and he presented the same for an exorbitant amount, then the accused has to drive the way which leads by the complainant look into the other side. If the case is a genuine one if the accused paid twenty percent of the amount to the complainant in the trail court and gain in the appellate court, suppose if the accused is acquitted, then the complainant has to find out the amount once again to repay it to the accused. If not the status of the complainant is to be transformed as accused.

 

In short enactment of SARFAESI Act had thrown of numerous poor persons into street from their homes. The bank got power as dictator for evicting poor creditors without the intervention of court, without giving even a mandatory notice from a Chief Judicial Magistrate court.

Hence the Negotiable Instruments (Amendment) Act, 2018 may cause exode of ligations in court and thereby the fraudulent creditors gain unlawful enrichment by utilising court interventions.

Secularism, Morality and Religion under Indian Constitution

(By M.K.S. Menon, Advocate, Supreme Court of India)

 

Entry of Women from ‘menarche’ to ‘menopause’ at “Sabarimala” a Public Hindu Religious Institution in Kerala has been deliberated upon by the Constitution Bench of the Hon’ble Supreme Court of India, in the case of Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors. Writ Petition (Civil) No. 373 of 2006 decided on 28th September, 2018 (2018 (4) KLT 373 (SC). Majority of 4 Judges headed by the Hon’ble Chief Justiceholding that discrimination is writ large on the face of religious practice of keeping the women away from entering the temple during the ticking of their biological clock and also that the tenets of the religion is not the final word when constitutional morality warrants intervention. Constitution Bench by a majority of four against one, struck down Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 for exceeding the limits of delegation under proviso to Section 4(1) read with Section 3 of Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, enacted on the strength of Article 25(2) read with Article 14, and 15(1) of the Constitution of India. Hon’ble Court also held that such a discrimination amounts to untouchability under Article 17
of the Constitution of India. This revolutionary Judgment deals with Constitutional Morality, Secularism and Religious practices in the light of ‘untouchability’, a term which is not defined either by the Constitution or by any enactment.

 

Before going into the constitutional interpretation of these terms a useful reference to the Oxford and Webster’s dictionary meaning of those words will be of some assistance.

Secular:

Oxford:                                                                                                

1. Concerned with the affairs of this world; not spiritual or sacred             

2.  Not concerned with religion or religious belief

3.   (a) Not ecclesiastical or monastic

      (b) Not bound by any religious rule

Webster: Worldly; Lay; not monastic; or occurring once in age-

Religion:   

Oxford:

1. The belief in a superhuman controlling power, esp. in a personal god or god’s, entitled to obedienceand worship.

2.The expression of this in worship

3.A particular system of faith and worship

Webster:System of faith and worship.

Untouchable:

Oxford : (adj) That may not or cannot be touched; (n) a member of a hereditary Hindu group held to defile members of higher castes on contact

Webster: Hindu below the caste level.

Simple meaning of the word ‘Untouchability’ was always understood around the world as something connected with cast system in India.

How Constitution of India conceived secularism and religion:

As per the earlier view of Hon’ble Supreme Court of India regarding the first two facets of Indian Constitution was, that both occupy different fields but are required to be blended and followed. That is why in the case of Pannalal Bansilal Pitti v. State of A.P. reported in 1996 (1) KLT OnLine 904 (SC) = (1996) 2 SCC 498 in para 20 Justice K.Ramaswamy observed as follows:

“20.  It would be thus clear that the right to establish a religious institution or endowment is a part of religious belief or faith, but its administration is a secular part which would be regulated by law appropriately made by the legislature.The regulation is only in respect of the administration of the secular part of the religious institution or endowment, and not of beliefs, tenets, usages and practices, which are integral part of that religious belief or faith.”

 

In The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt reported in (1954 KLT OnLine 1002 (SC) = (1954) SCR 1005) it was observed thus:

 “In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”

Then the question arises as to whether in every case allowing “Entry to a Religious Institution” is administrative in nature. It depends upon the nature of the religious institution in question. In a Muslim mosque a devotee can enter into the mosque and sit anywhere and pray, following the discipline of the mosque as prescribed. In a Hindu temple, in North India one can touch the Idol and pray. There are places like Badrinath where only priests from Kerala conducted the ‘pooja’ and Tantric system of Kerala was followed. ‘Right of entry’ on a different context was considered by the Hon’ble Supreme Court in the case of Badrinath temple. One of the earliest judgments dealing with religious freedom, namely, Nar Hari Sastri and Ors. v. Shri Badrinath Temple  Committee, reported in 1952 KLT OnLine 805 (SC) = (1952) SCR 849, in which Hon’ble Supreme Court was concerned with the “right of Entry” in the temple at Badrinath, which is an ancient temple, being a public place of worship for Hindus. At a time when public interest litigation was foreign to Indian judiciary, a representative suit was filed under Order I Rule 8 of the Code of Civil Procedure, 1908 on behalf of all Deoprayagi Pandas who, as guides or escorts of pilgrims, sought a declaration that they cannot be obstructed from entering the precincts of the temple along with their clients for darshan of the deities inside the temple.

Hon’ble Supreme Court held:

 

“ ........In law, it makes no difference whether one performs the act of worship himself or is aided or guided by another in the performance of them. If the Pandas claim any special right which is not enjoyed ordinarily by members of the Hindu public, they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise.”

Further observation runs like this:

 “......The public may also be denied access to certain particularly sacred parts of the temple, e.g., the inner sanctuary or as it is  said the ’Holy of Holies‘ where the deity is actually located. ....”

 

From the above discussion it is clear, that for administration of the temple, ‘regulation of entry’ is a secular act but at the same Constitution also recognizes religious practices of restricted entry in case there is any religious cause involved, provided it is not against ‘Public Morality, Order and Health’. The ‘Tantric Vidhi’ followed in the Badrinath Temple allow only the priest to enter the sanctum sanctorum and touch the idol. Hon’ble Court did not shut out the argument based on restrictions but held that there can be special right, provided one succeeds in proving a custom or religious practice. Right to touch the idol exercised at many other temples were not allowed in Badrinath Temple. Even though what logically follows from a judgment is not a precedent, there is a message, that once a religious custom or religious practice contrary to the secular principles stands proved, then it seizes to be a secular aspect justifying the democratic machinery to interfere with the said religious practice.

 

In a given situation where a secular government bring in a legislation by relying on Article 14 and 15(1) alone stating that in every religious place every Indian citizen irrespective of religion shall be permitted to enter, it can only create anarchy. That will affect public peace and tranquility and no sensible elected representative shall ever contemplate such an idea. However position found to be different in the case of Section 3 and Proviso to 4(1) of Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 alleged to have been enacted by invoking Article 25(2)(b) which enable the State to throw open a Hindu temple to “all classes and Sections” of the Hindus. Hon’ble Supreme Court held that the legislative intent of the said enactment is clear in using the words ‘all sections and classes’’ and the legislature definitely wanted to treat “menstruating women” as a class apart and included it in Section 3 and 4 of the Act.  In the present case ‘menstruating women’, since not permitted to enter the temple as per Rule 3 of Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 , Supreme Court held that they fall under the mischief of “ class or section” under the provisions and therefore Rule 3 is beyond the power delegated under Section 4 of the  Act .

 

The real problem lies somewhere else. People in Kerala respect each religion and they celebrate festivals together. Old concept of caste system vanished from the State long back. When anyone deliberates upon the social status of a woman in Kerala, there are many important aspects to be kept in mind. Kerala is the State which is following matriarchal system as well, in which woman is kept at the highest pedestal in a family, being the head of the family. Kerala is the State which gives right to property to a woman by birth from time immemorial and male is married and brought to the female’s house in the system known as ‘Marumakkathayam’ (Matriarchal system), followed in this part of the country. On the contrary in some of the States in India women are considered as ‘paraya dhan’ (another’s property). Articles of Diane Coffey dealing with discrimination against women as a class in some parts of India is referred to in the Judgment, states that even among the educated class in some part of the country, Women are facing discrimination.

 

Any Keralite can say with pride that the highest amount of female literacy is a feather on their cap. An average woman in Kerala is politically and socially literate. Majority among that class till date, did not come forward with a claim that they were discriminated on account of denying entry to Sabarimala Temple, because they strongly believe that going to a temple is not ‘holidaying’ but a ‘pilgrimage’. In 1991 when some women attempted to do trekking to Sabarimala, Kerala High Court applied a break to prevent a public outcry through a judgment in S.Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram and Ors. (1991 (2) KLT OnLine 1008 = AIR 1993 Ker.42). Said judgment is now declared as bad law.  In Kerala , women sacrificed their wish to go and see the deity at ‘Sabarimala’ by accepting the wish of the god ‘Ayyappa’ himself and also to enable her beloved husband, son, brother or father to avail an opportunity to embrace celibacy which is considered to be one of the most powerful medium enabling a man to merge with the ‘Omnipotent’. Just like ‘fasting’ practiced by the Muslims during Ramzan, for Hindus 41 days of penance by observing celibacy during ‘Mandalam’ (November-December) is a self-imposed discipline practiced by both men and women. It is a period for sacrifice of worldly pleasures.Highly literate Kerala women never felt that they belong to an oppressed class because they were not given entry to Sabarimala. They know that following tradition is part of discipline which is the first step under Bhakthi Marga. Questioning everything is another school of thought. Kerala Women are fully aware that religion is a code of conduct and temples are to be looked at as a place for following ‘Bhakthi marga’ and not for holidaying, excursion or trekking. In paragraph 1 of the descending judgment the locus standi claimed by the Petitioners are reproduced as follows:

 

“Petitioners have inter alia stated that they learnt ofthe practise of restricting the entry of womenin the age group of 10 to 50 years in the Sabarimala Temple in Kerala from three newspaper articles written by Barkha Dutt (Scent of a Woman, Hindustan Times; July 1, 2006), Sharvani Pandit (Touching Faith, Times of India; July 1, 2006), and Vir Sanghvi (Keeping the Faith, Losing our Religion, Sunday Hindustan Times; July 2,2006).”

 

Case was filed not by a ‘believer’, and therefore the locus standi of the petitioner itself is questionable. The so called information can be a matter of concern if there is an element of oppression, and then the democratic machinery is justified in stepping in, to correct that religious practice, reckoning socialistic values enshrined in our Constitution.

 

Every political system has good and bad elements. Democracy also has got its own darker sides. That is why there are checks and balances provided in our Constitution. In a large democracy like India there are innumerable religious practices co-existing and are also respected for its own reasoning’s. However Constitution protects only those beliefs and practices which are within the parameters of ‘Public order ,morality and health’. In India we proudly declare that there is ‘unity in diversity’. A person coming from South India may not be familiar with a religious practice prevalent in North, East or West India and vice versa. In Kerala women believe that going to temple or observing penance during their ‘menstrual cycle’ is against the religious tenets, since that may diminish the cosmic power of the deity/worshipped. May be this has become the practice knowingly or unknowingly by following the Tanthric principles adopted in this part of the country. Body is considered as a temple itself under this theory. In North India it is not much appreciated as part of a religious discipline. That does not mean that one is right and the other is wrong. It is their respective belief imbibed from childhood. Those who are working for the upliftment of women may feel that preventing a woman from entering the temple during menstruation is a violation of the constitutional morality including equality, but that will not justify forcing that revolutionary thinking on those who are not thinking in the same wavelength. What the minority revolutionary thought may not be acceptable for a group who still follow the so called orthodox values in life.

 

Forcefully introducing revolutionary thought without a referendum, is not a democratic way.  There are many beliefs which has no reasoning but are deep rooted. The very basic concept of religion, believing in a ‘supernatural power’ is not in consonance with logic. Can anybody physically demonstrate as to what is ‘GOD’ or a super natural power, so as to satisfy the logic by reasoning? Belief, Law and Logic has got its own boundaries. We are constrained to believe many things as suitable for one’s own wellbeing without disturbing the person next to you. We Indians believe in our Constitution as well as the functionaries under the Constitution because that is a basic necessity for an orderly society. Can we explain as to why, despite our belief in the system, crime and violence continue to exist. That does not mean one shall not strive for an orderly society. Constitutional morality is no doubt is the well accepted norm in  a democracy but the manner in which it is forced in by bulldozing the people with a particular belief is not suitable for a democracy, unless it poses an
imminent /impending danger to the democracy (Eg., ‘Sati, forceful conversion, untouchability’ etc). Any political party especially the ruling party can go in for a referendum through secret ballot. No doubt that Supreme Court judgment is not compelling anyone to go to Sabarimala Temple since it is only allowing those who want to go. Prima facie it appears to be an intelligent remark but the fact remains that the deity worshiped believed to be a permanent celibate and the regular worshipers (majority of women) in Kerala believe that the deity may lose its “Chaithanya” (cosmic power) once menstruating women are permitted to enter the Temple. However the tantric tenets followed in this part of the country prompted them to think in that manner. The same tenets do not permit a menstruating woman to go near the shrine and to touch it. The tenets once found to be sacred by the court are now found to be a stumbling block for the democracy to flourish and is giving way to the modern concept of constitutional morality/equality. For an absolute secularist, following the tenets may appear to be preposterous. However Judgment in Badrinath case (supra), did not say that every one shall be permitted to enter every nook and corner in the temple or to permit entry irrespective of sex, classes and sections of Hindus at the ‘sanctum sanctorum’. Said judgment is also quoted in the Sabarimala case for a different purpose. As per the new dimension of ‘equality’, put forward by the petitioners, women devotees shall be permitted to even ‘enter and touch the idol’ irrespective of her biological condition. There are temples in Kerala like ‘Attukal Bhagavathy Temple” at Trivandrum, allowing only women to perform certain religious offerings like ‘Pongala’. There are many other temples which permit the entry of women alone on certain occasions.  After the present declaration in the Sabarimala judgment, there is every possibility of all those temples loosing its historical importance of the practices followed there in. Can that be the legislative intent of Section 3 and 4 of Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 is a moot question?

 

Discipline is the core factor for every institution. Many practices may prima facie appear to be out of date by passage of time. In the temples of justice in India, we are wearing black coat and gown during summer. Even judges in lower courts sit in rooms with no air conditioning, beating the heat from morning till evening during summer. Even now we follow this because we believe in the practice of discipline. We are religiously following the practice of wearing gowns, a culture gifted by colonial regime, which has been abandoned by many advanced countries.

 

Any how the present judgmentprima facie dealing with constitutional morality, it is believed that bestowed tremendous heart burn to majority of Hindu women believers in Kerala. Since the women believers in Kerala as a class was not heard during the hearing of the main matter, any women organisation, which has no political or cast allegiance may go for a curative petition after following the procedure prescribed by the Supreme Court Rules.

 

RELEVANT CONSTITUIONAL  AND STATUTORY PROVISIONS:

A) ARTICLE 14 :

“The State shall not deny to any person equality before the law or the equal protection of the law within the territory of India.”

B) ARTICLE 15:

(I)The State shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them;

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) Access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public

(3) Nothing in this Article shall prevent the State from making special provision for women and children

(4)..........................

C)  Article 17 :

“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.” 

D)  Article 25 :

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law-

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with the religious practice;

(b) providing for social welfare and reform or throwing open of Hindu religious instituion of a public charactor to all classes of Hindus.

E)  Article 26:                                                                                     

Subject to public order, morality and health, every religious denomination or any section there of shall have the right-

(a) to establish and maintain institutions for religious and charitable purpose

(b) to manage its own affairs in matters of religion

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with  law.

Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965:

Section 3: Places of public worship to open to all sections and classes of Hindus.-Notwith-standing anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall  be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers there at, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform:

 

Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the  provisions of this  section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in matters of religion. ”

 

Section 4:  Power to make regulations for the maintenance of order and decorum and the due performance of rites and ceremonies in places of public worship:

(1) The trustee or any other person in charge of any place public worship shall have power, subject to the control of the competent authority and any rules which may be made by that authority, to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein:

 

Provided that no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class.

(2) The competent authority referred to in sub-section (1) shall be,-

(i) In relation to a place of public worship  situated in any area to which Part I of the Travancore-Cochin Hindu Religious Institutions Act, 1950 (Travancore-Cochin Act XV of 1950), extends, the Travancore Devaswom Board;

(ii) in relation to a place of public worship situated in any area to which Part II of the said Act extends, the Cochin Devaswom Board; and

(iii) in relation to a place of public worship situated in any other area in the State of Kerala, the Government.”

 

Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965:

Rule 3. The classes of persons mentioned hereunder shall not be entitled to offer worship in any place of public worship or bath in or use the water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to the place of public worship:

                                                                 x x x

(b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship

Section 4 provides for subordinate legislation/regulations/rule and reads.:

“to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies” on one hand  and also the proviso which says:

 

Provided that no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class.

The word ‘he belongs’ appearing in the proviso can be read as ‘he’ or ‘she’. However further classification based on ‘menstruation’ was visualized or not by the legislature at the time of enacting the law is an arguable point if a review of this judgment is sought. On the contrary regulation can be prescribed for the maintenance of order and decorum in the place of public worship and due observance of religious rites and ceremonies also are prescribed as per Section 3 and 4. Nowhere in the enactment there is ‘discrimination based on sex’ is described, included or discussed. Legislation was intended mainly to abolish the class system within the Hindu community prevailed in Kerala previously. Definition of “Section or class” appears in Section 2 will have to be understood in the light of the definition of ‘ place of public worship’ in Section 2(b).

 

“Section 2. Definitions:- In this Act, unless the context otherwise requires, - 

(a) “Hindu” includes a person professing the Buddhist, Sikh or Jaina religion; 

(b) “place of public worship” means a place, by whatever name known or to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for offering prayers therein, and includes all lands and subsidiary shrines, mutts, devasthanams, namaskara mandapams and nalambalams appurtenant or attached to any such place, and also any sacred tanks, wells, springs and water courses the waters of which are worshipped, or are used for bathing or for worship, but does not include a “sreekoil”;  

(c) “section or class” includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever.” 

 

The “section and class” will have to be understood to mean a class based on existing castes, division, denomination and sections or classes similar to that. Definition of ‘Untouchability’ in the Oxford and Webster Dictionaries are sufficient guideline. It is too far-fetching to bring in an interpretation totally foreign to the concept even remotely visualized by the legislature to mean that “section or class of Hindu women menstruating”. It leads to an anomalous interpretation. Hon’ble Supreme Court repeatedly held that the construction requiring addition or substitution of words, or leading to absurdity shall be avoided. In the case of Grasim Industries  v. Collector of Customs reported in 2002 (3) KLT SN 95 (C.No. 130) SC = (2002) 4 SCC 297 para 10, in para 10 it is observed as follows:

“ ...While doing so, what has been said in the statute and as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided.....”

In Harbachan Singh v. Press Council of India reported in 2002 (2) KLT SN 84 (C.No. 98)
SC =  (2002) 3 SCC 722 in para 7 it is observed as follows:

“7.........the legislature chooses appropriate words to express what it intends, and therefore , must be attributed with such intention as is conveyed by the words employed so long as this does not result in absurdity or anomaly or unless material- intrinsic or external- is available to permit a departure from the rule.”

 

Discrimination is specifically discussed in the proviso to Section 4.  What is sought to be eradicated through the legislation is the caste system which included lower castes or backward classes who are backward in the society. Special treatment sought by a denomination under Article 26 of the Constitution is coming in the proviso to Section 3 of the Act. Menstruating women are never treated as a class backward in the society at any point of time and discriminated in Kerala. More over ‘prevention’ can be reckoned as discriminatory shall be permanent in nature throughout the life only because the individual is a woman and not due to some biological condition detrimental to some religious reasonings. Women are not permanently prevented from entering the Sabarimala temple.

 

Most importantly, in Kerala there are many temples in which women alone are allowed to enter during certain periods. By applying this interpretation, one has to presume that the intention of the legislature was to take away the special rights vested in women as well. Something that was not even remotely visualized cannot be assumed.

The interpretation sought to be introduced by the petitioners is aiming to gather strength from Article 17 which describes ‘untouchability’ as a crime. At the time when Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 and the Rules were brought in to force in 1965, legislature never considered ‘menstruating women’ as untouchables. In that case Rule 3 of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 would not have remained in force during the ruling of Communist Party (Marxist) [considered as the champions of secularism] in the succeeding years.

 

Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 was not passed in furtherance of Article 17 so as to introduce the definition of ‘section or class” in Section2(c) of the Act so as to deemigly include “prevention of untouchability”. As long as Article 17 has got no bearing on the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965, the argument based on discrimination has no legs to stand.

 

As long as Article 25(2) is there in the Constitution, any State in India can bring in a legislation, “throwing open any Hindu Religious Institution of a public character to all classes of Hindus”. However the year in which Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 was passed, Rule 3 of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965 also came in to force. This also demonstrates the intention of the State Government, not to treat ‘menstruating women’ as a separate class or section. Even though Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, is a piece of subordinate legislation by the executive, none of the Government ever attempted to amend the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965.

 

‘ENTRY TO A PUBLIC PLACE’ UNDER ARTICLE 15 OF THE CONSTITUTION OF INDIA :

‘Entry to public place’ is coming in Article 15(2)(a) of the Constitution.  ‘Religion’, ‘Sex’ etc.,  found place in Article 15(2) but entry to religious institution was consciously excluded in the public places under sub-clause (a) of Article 15(2). More over the words “class or section” is also not appearing anywhere in Article 15.

Article 15(1) reads as follows:

Article 15 (1). The State shall not discriminate against any citizen on ground only of religion, race, caste, sex, place of birth or any of them.

Sub classification such as “Class or section” is not available in this Article. Therefore bring in a sub-classification of ‘class or section’ in any of the sex is a foreign argument so far as Article 15(1) is concerned. In case framers of the Constitution wanted to include sub-classification, they would have definitely added ‘class or section’ after the words ‘any of them like :

 “on ground only of religion, race, caste, sex, place of birth or any of them orany class or section thereof.”

As long as those words are not included in the Article, we cannot do injustice by adding those words to the Article.

 Article 15(2) reads as follows:

15(2). No citizen shall, on grounds only of religion, race, caste, sex,place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of  public resort maintained wholly or partly out of State funds or dedicated to the use of thegeneral public.

It is a moot question as to why ‘religious places/institutions‘ are not included in Article 15(2)(a)
which is starting with the preface “access to”. The words ‘general public’ appearing in the Article 15(2)(b) by itself shows that the said provision never intended to cover a religious place. If the argument of the petitioners based on Article 15(2)(b) is accepted, people of all religion should be permitted to enter every temple, church and mosque in India. It can also be argued that people irrespective of religion and sex shall be permitted to enter the sanctum sanctorum of a Temple in view of Article 290-A, since the Temple is utilizing the money from Consolidated Fund of India.

In ever so many judicial pronouncements it is held that when there is a specific provision, it excludes a general provision. We can’t forget the fact that Articles 14,15,16, 17, 25 ,26 and 30 are all falling under the same umbrella namely Part III of the Constitution, but cannot be stretched in such way so as to fit in a foreign argument not intended to be covered by the particular Article. Each one Article serves a different purpose even though appear to be overlapping. Mostly, inbuilt safeguards are provided with in the same Article itself.

 

BIOLOGICAL CONDITIONS OF WOMEN AND ‘UNTOUCHABILITY’   UNDER ARTICLE 17 OF THE CONSTITUTION:

While interpreting Article 25(2) it is doubtful as to whether the founding fathers of the Constitution, really wanted a sub-classification of sex on the basis of their biological condition which has got a bearing on a particular ‘religious belief and practice’. There are issues like untouchabilty under Article 17 which happened to be a social evil that drew the attention of the framers of the constitution and that is why a separate Article was brought in so as to make it an offence. Word used in Article 17 is untouchabilty ‘in any form’. No doubt the religious practice involving muslim women stated in Quran was brought to the notice of the Constituant Assembly but was not taken up for discussion by Dr. Ambedkar. Conscious deliberation on this aspect was avoided during the discussion on this subject, because what is an offence of untouchability was left to be deliberated by the respective legislature. This fact is reproduced in Paragraph 72 of the judgment in Sabarimala case as follows: 

“When the draft Article 11 came for discussion before the Constituent Assembly on 29 November 1948, one member, Naziruddin Ahmad, sought to substitute it by the following Article:

“No one shall on account of his  religion or caste be treated or regarded as an ‘untouchable’; and its observance in any form may be made punishable by law.”⁸⁵ 

The amendment proposed would obviously restrict untouchability to its religious and caste-based manifestations. Naziruddin Ahmad supported his contention by observing that draft Article11 prepared by the Drafting Committee was vague, as it provides no legal meaning of the term “untouchability”. Stressing that the term was “rather loose”, Ahmad wanted the draft Article to be given “a better shape”. Professor K.T. Shah had a similar concern. He observed: 

“… I would like to point out that the term ‘untouchability’ is nowhere defined. This Constitution lacks very much in a definition clause; and consequently we are at a great loss in understanding what is meant by a given clause and how it is going to be given effect to. You follow up the general proposition about abolishing untouchability, by saying that it will be in any form an offence and will be punished at law. Now I want to give the House some instances of recognised and permitted untouchability whereby particular communities or individuals are for a time placed under disability, which is actually untouchability. We all know that at certain periods women are regarded as untouchables.Is that supposed to be, will it be regarded as an offence under this article? I think if I am not mistaken, I am speaking from memory, but I believe I am right that in the Quran in a certain ‘Sura’, this is mentioned specifically and categorically. Will you make the practice of their religion by the followers of the Prophet an offence? Again there are many ceremonies in connection with funerals and obsequies which make those who have taken part in them untouchables for a while. I do not wish to inflict a lecture upon this House on anthropological or connected matters; but I would like it to be brought to the notice that the lack of any definition of the term ‘untouchability’ makes it open for busy bodies and lawyers to make capital out of a clause like this,which I am sure was not the intention of the Drafting Committee to make.”

 

Dr. Ambedkar neither accepted Naziruddin Ahmad’s amendment nor replied to the points raised by K.T.Shah.The amendment proposed by Ahmad was negatived by the Constituent Assembly and the draft Article as proposed by Dr. Ambedkar was adopted. Draft Article 11 has been renumbered as the current Article 17 of the Constitution.”

In para 81 of the judgment it is observed as follows:

 

“Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by women. Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values. As an expression of the anti-exclusion principle, Article 17 cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. Article 17 cannot be read in a restricted manner. But even if Article 17 were to be read to reflect a particular form of untouchability, that article will not exhaust the guarantee against other forms of social exclusion. The guarantee against social exclusion would emanate from other provisions of Part III, including Articles 15(2) and 21. Exclusion of women between the age groups of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity.  “

 

None of the authors like  Sujatha Gidla, Diane Coffey and Dean Spears (Articles written about castes system), whose works are quoted in the judgment had dealt with the status of a women based on menstruation, as equal to that of a lower caste. Sujatha Gidla is an Indian-American author. Gidla is known for her novel ‘Ants Among Elephants’: An Untouchable Family and the Making of Modern India. She was born in Andhra Pradesh and moved to the United States in 1990, when she was 26 years old. Wikipedia refers to the Book written by Sujatha Gidla and states , “’Ants Among Elephants’ is Gidla’s first book and was published in 2017. It is a family memoir that chronicles the life of her uncle, K.G. Satyamurty, a Maoist leader and the founder of a left-wing guerrilla movement called the People’s War Group (PWG). The book also described the personal history of her mother Manjula’s life, both of which are juxtaposed against the peasant revolt and the formation of a new State in newly independent India. Gidla classifies the book under the genre of ‘literary nonfiction’.”  In ‘Economic and Political weekly’ website (Evidence from a New Survey) (Explicit Prejudice Vol. 53, Issue No.1,06 Jan, 2018) deals with the ‘Special Articles’ by Diane Coffey, Payal Hathi, Nidhi Khurana, Amit Thorat which states “A representative phone survey to study explicit prejudice against women and Dalits in Delhi, Mumbai, Uttar Pradesh, and Rajasthan reveals widespread prejudice in several domains and discusses the consequences for women and Dalits, and society as a whole. The results suggest the need for a more robust public discourse and active approach to measuring and challenging prejudice and discrimination.” In this short video interview Dean Spears (Executive Director, RICE/Assistant Professor of Economics, University of Texas at Austin) talks about the key motivations behind the award-winning book he co-authored with Diane Coffey, ‘Where India Goes’: Abandoned toilets, stunted development, and the cost of caste.’ The book addresses a central puzzle: why is open defecation so persistently high in rural India? And what to do about it? It presents evidence showing that poor sanitation is an important determinant of the poor health outcomes of India’s children, and that the continuing relevance of the purity, pollution and untouchability norms of the caste system keeps open defecation alive today despite decades of government latrine construction programmes.

 

All these great authors who wrote their Articles mainly for social reforms and they had in fact considered women as a class subjected to discrimination mainly in 4 places ‘Delhi, Mumbai, Uttar Pradesh and Rajasthan’. Nowhere in their Articles ‘’menarche’ to ‘menopause’ pertaining to women is a subject matter and reckoned as a cause for untouchability. 

Para 76 of the majority judgment in fact contained the depth of the discussion in those Articles i.e., “Annihilation of Caste” but when it came to its application on the facts of the present case, landed in a slippery terrain. Para 76 of the judgment reads as follows:

“76. The practice of “untouchability”, as pointed out by the members of the Constituent Assembly, is a symptom of the caste system. The root cause of “untouchability” is the caste system.The caste system represents a (In his paper on “Castes in India: Their Mechanism, Genesis and Development” (1916) presented at the Columbia University,) Dr.Ambedkar wrote: “The caste problem is a vast one, both theoretically and practically. Practically, it is an institution that portends tremendous consequences. It is a local problem, but one capable of much wider mischief, for as long as caste in India does exist, Hindus will hardly intermarry or have any social intercourse with outsiders; and if Hindus migrate to other regions on earth, Indian caste would become a world problem”. (See Dr.Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol.1 (2014), at pages 5-6 ] hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. While the top of the caste pyramid is considered pure and enjoys entitlements, the bottom is considered polluted and has no entitlements. Ideas of “purity and pollution” are used to justify this distinction which is self-perpetuality. The upper castes perform rituals that, they believe, assert and maintain their purity over lower castes. Rules of purity and pollution are used to reinforce caste hierarchies.

96.The notion of “purity and pollution” influences who people associate with, and how they treat and are treated by other people. Dr.Ambedkar’s rejection of privileges associated with caste, in “Annihilation of Caste”,  is hence a battle for human dignity. Dr.Ambedkar perceived the caste system to be violative of individual dignity. In his last address to the Constituent Assembly, he stated that the caste system is contrary to the country’s unity and integrity, and described it as bringing “separation in social life”. Individual dignity cannot be based on the notions of purity and pollution. “Untouchability” against lower castes was based on these notions, and violated their dignity. It is for this reason that Article 17 abolishes “untouchability”, which arises out of caste hierarchies. Article 17 strikes at the foundation of the notions about “purity and pollution”.

Majority of the Constitution Bench accepted that women on account of their particular biological condition also fall under the mischief sought to be eradicated by Article 17, an offence under the law enacted in furtherance of Article 17 just because Dr. Ambedkar felt it unnecessary to answer Professor K.T.Shah, and also to ignore the amendment sought by Naziruddin Ahmad. In fact this interpretation leads to an irresistible conclusion that, all those who are instrumental for bringing in Rule 3 of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 and those who followed the said rule may also be liable for prosecution under Section 7(1)(c) of Protection of Civil Rights Act 1955 for encouraging and inciting the practice of untouchability in “any form whatsoever”.

Section 7(1)

(c) by words, either spoken or written, or by signs or by visible representations or otherwise, incites or encourages any person or class of persons or the public generally to practice” untouchability” in any form whatsoever;

Explanation II(1)  to Section 7(1)(c) stipulates as follows:

“[Explanation II.--For the purpose of clause (c) a person shall be    deemed to incite or encourage
 the practice of “untouchability”—

(i) if he, directly or indirectly, preaches “untouchability” or its practice in any form; or

Meaning in Webster English Dictionary for the word ‘incite’ includes ‘excite’, and the meaning of the word ‘excite’, also means ‘rouse up or set in motion, move to strong emotion etc’.

Definition of the word ‘place’ under Section 2 reads as follows:

“place” includes a house, building and other structure and premises; and also includes a tent, vehicle and vessel;

By accepting the logic in the judgment that a religious practice of prohibiting a woman from entering a religious Institution during menstrual cycle amounts to ‘untouchabilty’, we are faced with another intriguing question i.e., ‘ if the husband refuses to have intimate physical relationship with his wife during menstruation, that will also be reckoned as ‘untouchabilty’ so as to be punished for practicing untouchability under Section 7(1)(c) of the Protection of Civil Rights Act 1955 because neither Article 17 of the Constitution nor Section 7 of Protection of Civil Rights Act 1955 uses the word ‘ at a public place’ to qualify the term ‘untouchability’. On the other hand the definition of “place” under Section 2(b) of Protection of Civil Rights Act 1955 includes a ‘house’. Husband’s denial amounts to practice of or inciting ‘untouchability’ and can also be a valid ground for divorce since it is an offence. Section 7 of Protection of Civil Rights Act 1955 provides for punishment for other offences arising out of untouchability. Therefore this area could be a ground for review of the view expressed by the majority judgment as long as a proper definition for ‘untouchability’ is not brought in by a constitutional or statutory amendment.

Following observations in the Constitution Bench judgment regarding discussions before the Constituent Assembly also is worth reckoning:

 “The framers of the Constitution left the term “untouchability” undefined. The proceedings of the Constituent Assembly suggest that this was deliberate. B .Shiva Rao has recounted the proceedings of the Sub-Committee on Fundamental Rights, which was undertaking the task of preparing the draft provisions on fundamental rights. A clause providing for the abolition of “untouchability” was contained in K.M. Munshi’s draft of Fundamental Rights.

Clause 4(a) of Article III of his draft provided:

“Untouchability is abolished and the practice thereof is punishable by the law of the Union.”

Clause 1 of Article II of Dr.Ambedkar’s draft provided that:

“any privilege or disability arising out of rank, birth, person, family, religion or religious usage and custom is abolished.

While discussing the clause on “untouchability” on 29 March 1947, the Sub-Committee on Fundamental Rights accepted Munshi’s draft with a verbal modification that the words “is punishable by the law of the Union” be substituted by the expression “shall be an offence”. Reflecting on the draft, the constitutional advisor, B N Rau, remarked that the meaning of “untouchability” would have to be defined in the law which would be enacted in future to implement the provision. Bearing in mind the comments received, the Sub-Committee when it met on 14 April 1947 to consider its draft report, decided to add the words “in any form” after the word “Untouchability”. This was done specifically in order “to make the prohibition of practice of “untouchability”comprehensive” Subsequently, on 21 April 1947, the clause proposed by the Sub-Committee on Fundamental Rights was dealt with by the Advisory Committee, where Jagjivan Ram had an incisive query. While noting that ordinarily, the term “untouchability” referred to a practice prevalent in Hindu society, he queried whether the intention of the committee was to abolish untouchability among Hindus, Christians or other communities or whether it applied also to ‘inter-communal’ untouchability. Shiva Rao has recounted that the Committee came to the general conclusion that “the purpose of the clause was to abolish untouchability in all its forms— whether it was untouchability within a community or between various communities.” Panikkar elaborated the point by observing that the clause intended to abolish various disabilities arising out of untouchability, irrespective of religion.

On 30-31 October 1947, the Drafting Committee considered the “untouchability” provision and redrafted it as Article 11. It was proposed by Dr.Ambedkar before the Constituent Assembly as follows:

“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “untouchability” shall be an offence punishable in accordance with law.” 

Fortunately Section 7(1)(c) of Protection of Civil Rights Act 1955 will not make ‘denying entry for non-Hindu to any Hindu Religious institution’ an act of untouchability because Section 3(a) of Protection of Civil Rights Act 1955 makes it an offence only if it is “a place of public worship which is open to other persons professing the same religion or any section thereof”.and under Section 2 (d) :

“ place of public worship” means a place, by whatever name known, which is used as a place of public religious worship or which is dedicated generally to, or is used generally by, persons professing any religion or belonging to any religious denomination or any section thereof, for the performance of any religious service, or for offering prayers therein and includes ......”

Article 17 of the Constitution, left the previlege to define the term ‘untouchability’ to the wisdom of legislature. The legislation namely Protection of Civil Rights Act 1955 also does not define the terms “untouachbility”, “class of persons” or “section of person” . However Hon’ble Supreme Court in the Sabarimala case visualised a definition where by “ Menstruating women “ are termed as a ‘sub-class’. However there is no clause in the Act which is throwing light to define an action based on ‘sexual discrimination’, much less ‘untouchabilty based on Menstruation’ as an offence as required under Article 17 of the Constitution.

Section 2(a) states:

“civil rights” means any right accruing to a person by reason of the abolition of” untouchability” by Article 17 of the Constitution.

Section 3.:

“Punishment for enforcing religious disabilities.Whoever on the ground of” untouchability” prevents any person-

(a) from entering any place of public worship which is open to other persons professing the same religion or any section thereof, as such person; or

(b) from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in, or using the waters of, any sacred tank, well, spring or water- course,  river or lake or bathing at any ghat of such tank, water- course, river or lake in the same manner and to the same extent as is permissible to other persons professing or any section thereof, as such the same religion,  or any section thereof, as such person; shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees.

Explanation.- For the purposes of this section and Section 4 persons professing the Buddhist, Sikh or Jaina religion or persons professing the Hindu religion in any of its forms or developments including Virashaivas, Lingayats, Adivasis, followers of Brahmo, Prarthana, Arya Samaj and the Swaminarayan Sampraday shall be deemed to be Hindus.

Therefore, as long as the legislation namely Protection of Civil Rights Act 1955 is not defining “Untouchability” to include menstruating women in “class of persons” or “section of person”, Article 17 cannot be stretched to define an act of “Untouchability” beyond the scope of offenses under the ‘definition clause’ as well as Section 3 to 7A of Protection of Civil Rights Act 1955. Nowhere in the Protection of Civil Rights Act 1955 ‘sexual discrimination’, much less ‘untouchabilty based on Menstruation’ evidently visualised.

Concern of Profesor Shah assumes importance at this juncture :

“ .....Lack of any definition of the term ‘untouchability’ makes it open for busy bodies and lawyers to make capital out of a clause like this, which I am sure was not the intention of the Drafting Committee to make.”

At the cost of repetition following judgments are once again quoted:

Grasim Industries  v. Collector of Customs reported in2002 (3) KLT SN 95 (C.No.130) SC =(2002) 4 SCC 297 para 10, in para 10 it is observed as follows:

“ .....While doing so, what has been said in the statuteand as also what has not been saidhas to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided.....”

InHarbachan Singh v. Press Council of India reported in  2002 (2) KLT SN 84 (C.No. 98) SC = (2002) 3 SCC 722 in para 7 it is observed as follows:

“7.........the legislature chooses appropriate words to express what it intends, and therefore, must be attributed with such intention as is conveyed by the words employed so long as this does not result in absurdity or anomalyor unless material- intrinsic or external- is available to permit a departure from the rule.”

In fact the majority judgment finds support from earlier division bench judgment of the
Hon’ble Supreme Court while considering the right of non- brahmins to conduct poojas. In the case of N. Adithyan v. Travancore Dewaswom Board reported in 2002 (3) KLT 615 (SC) =
(2002) 8 SCC 106at para observed regarding the applicability of Article 17 observed as follows:

It is further observed as follows:

 “The legal position that the protection under Article 25 and 26 extend a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as parts of religion...”

In para 17 it is observed as follows:

  “17  .......There has been no proper plea or sufficient proof also in this case of any specific custom or usage specially created by the founder of the Temple or those who have the exclusive right to administer the affairs — religious or secular of the Temple in question, leave alone the legality, propriety and validity of the same in the changed legal position brought about by the Constitution and the law enacted by Parliament. The Temple also does not belong to any denominational category with any specialized form of worship peculiar to such denomination or to its credit. For the said reason, it becomes, in a sense, even unnecessary to pronounce upon the invalidity of any such practice being violative of the constitutional mandate contained in Articles 14 to 17 and 21of the Constitution of India.”

Primarily the above case was not decided within the framework of Article 17 of the Constitution. Even if it is pleaded that it was decided on the strength of Article 17, ‘untouchabilty’ based on ‘caste’, was the subject matter and not a sub-classification of women based on menstruation. In paragraph 5 of the Adithyan’sjudgment, it could be seen that the Senior Advocate who argued the matter took up a plea based on Article 17 and pointed out the fact there is no proper pleading and evidence regarding the religious practice, and also that ‘untouchabilty’ is an offence, but caste was  not decided on the strength of Article 17. It is highly necessary to point out at this juncture that a precedent is an authority for the subject matter and factual matrics of a particular case and what is decided in that case. What logically follows from a judgment is never considered as a precedent (2014) 5 SCC 75 para 47, (2004) 7 SCC 558, (2004) 3 SCC 75,  (1991) 4 SCC 139,
(1987) 1 SCC 213). This principle applies to all those judgments referred to in this article as well as the reasoning in the judgment under discussion.

As a penultimate point, it is necessary to point out that, the first attempt of the court ought to be that it shall save the legislation instead of striking it down. If possible a provision can be read down instead of striking it down. There are many judgments delivered by Hon’ble Supreme Court following this principle .

i) InMohd. Hanif Quareshi & Others v. The State of Bihar reported in 1958 KLT OnLine 1303 (SC) = AIR 1958 SC 731, 1959 SCR 629 observed as follows:                                                                      

“ ........ In any case, bearing in mind the presumption of  constitutionality attaching to all
enactments founded on the  recognition by the court of the fact that the legislature correctly appreciates the needs of its own people there appears to be no  escape from the conclusion that the petitioners have not discharged  the onus that was on them and the challenge under Art.14 cannot,  therefore, prevail.”

ii) Hon’ble Supreme Court in Shri Ram Krishna Dalmia v. Shri Justice S.R.Tendolkar
 and Ors. (1958 KLT OnLine 1302 (SC) = (1959) SCR 279 further laid down:

“ .............

(c) that it must be presumed that the legislature under stands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds;

(d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest,

(e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may  assume every state of facts which can be conceived existing at the time of legislation; and “

Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 required to be read down instead of striking down :

“Rule 3 (b) :

Women at such time during which they are not by custom and usage allowed to enter a place of public worship”

 

Word used in the rule is ‘women’. Prima facie it appears to be discriminatory which lead to the current hairsplitting exercise of interpretation. On the contrary, once we look at the Tantric practices adopted in Kerala, it could be seen that , not only the women but men also are subjected to this restriction. When death or birth takes place in a family, irrespective of the gender both male and female will have to avoid any spiritual activity or going to temple. During this period going to ‘Sabarimala’ is prohibited for the male member also. It applies to all temples. Even though repeatedly argued by all the contesting respondents that it is not possible for a woman to complete ‘41 days Vrutham’ and also that it is an integral part of the religious practice, Hon’ble Court thought it not necessary to formulate a question of law as to:

 

“Whether the religious practice of 41 days Vrutham/penance as claimed by the respondents is an integral part of the religious practice followed in the temple concerned ?.”

The judgment also did not categorically decide as to whether ‘41 days penance’ is an essential/ integral part of the religious practice. Judgment straight away proceeds to decide the validity of Rule 3(b) by taking support from Article 17. If these aspects would have been brought to the notice of the court probably Hon’ble Court would have read down Rule 3(b) in such a manner so as to include both men and women under Rule 3(b). In that case the rule itself could have been saved instead of striking it down. 

 

Conclusion:

Unique judgment in ‘Sabarimala Judgment’ is truely historic and revolutionary in nature by laying down the new parameters for gender equality by widening the scope of undefined term ‘untouchability’ (Undefined both in the Constitution and in the legislation).

 

Constituent Assembly avoided discussion on the objection raised by Professor K.T.Shah because the exercise of defining ‘Untouchability’ was left to the wisdom of the Legislature who may decide as to what constitute an offence of untouchability. None of the legislature till date felt it desirable to define the word ‘untouchability’ but only described various offences under Protection of Civil Rights Act 1955. Hon’ble Supreme Court thought it appropriate to decide the issue in Sabarimala case by giving a new dimension to ‘untouchability’ by bringing in Article 17 to enlarge the scope of  Article 25(2)(b) of the Constitution of India.