25 Landmark Judgments on Constitutional Law by the Supreme Court in 2022 [Part II]

Part I¹ of this article which is a roundup of all the 25-landmark constitutional law judgments delivered from January to June 2022. This part as a sequel takes forward and covers judgments from July to December 2022 inclusive of all the judgments that showcased consideration, interpretation, and evolution of important constitutional law principles.

The remaining judgments are as follows:

(1) Mohd. Zubair v. State (NCT of Delhi)²

(Delivered on July 20, 2022)

Coram: 3-Judge Bench of HM Justices D.Y. Chandrachud, Surya Kant and A.S. Bopanna

Authored by: HD Justice D.Y. Chandrachud

The writ petition preferred under Article 32 of the Constitution of India by the petitioner challenged the series of FIRs registered against him for allegedly inciting communal hatred and disrupting harmony allegedly through his tweets, registered by the Delhi Police as well as the U.P. Police. A relief of grant of bail in multiple FIR’s registered in multiple districts and multiple States was sought for in the petition. The Supreme Court, whilst referring to all the tweets held that the investigating authorities viz. police had violated the provisions of Section 41(b)(ii) CrPC, by not recording the reasons for the necessity of arrest of the petitioner. The Supreme Court came down heavily on police authorities for not following the law of the land especially the amended provisions of Chapter V, wherein it has been laid down that police cannot arrest any accused person, till and until necessary grounds subjecting him to custodial interrogation are made out. The court correlated the provisions of Sections 40 and 41 CrPC with Articles 19(1)(a) and 21 of the Constitution of India in the context of the petitioner, who is a journalist and relying upon the judgment of Arnab Ranjan Goswami v. Union of India,³ held that artistic and journalistic freedom under Article 19(1)(g) can only be exercised when there is freedom from arrest or interference of liberty is not there by the petitioner. It was further held that courts should be alive to both ends of the spectrum — the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment and the need to ensure proper enforcement of criminal law on one hand and ensuring the liberty, dignity and freedom of all its citizens on the other. It was further held that successive repetitive FIRs filed on the same subject cannot be lodged in the manner as has been done in the case. The Court further held that a prospective condition like a blanket ban on tweeting by the accused person cannot be made as a precondition for grant of bail, as it is not only disproportionate but also contravenes the fundamental tenets of fair trial, especially under Section 437 CrPC. In this regard, the Court relied on the judgment of Parvez Noordin Lokhandwalla v. State of Maharashtra.⁴ The court also passed a blanket order protecting the petitioner from arrest in relation to the FIR of a similar nature involving similar subject-matter likely to be registered anytime in future. Writ petitions were allowed.

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(2) X v. Health & Family Welfare Department⁵

(Delivered on July 21, 2022)

Coram: 3-Judge Bench of HM Justices D.Y. Chandrachud, Surya Kant and A.S. Bopanna

Authored by: HM Justice D.Y. Chandrachud

The issue before the Court arose in the context of inclusion of an unmarried women within the ambit of Rule 3(b) of the Medical Termination of Pregnancy Rules, 2003 (“MTP Rules”) for the termination of pregnancy in terms of Section 3(2)(b) of the Medical Termination of Pregnancy Act, 1971 (“MTP Act”). The petitioner was denied the opportunity of abortion of the fetus in her womb on the ground that she was an unmarried lady, and not covered by the provisions of Rule 3(b). The Court held that the High Court took an extremely restrictive and narrow pedantic view of Rule 3(b), excluding unmarried women from its ken. Referring to Explanation 1 and the phrase employed therein “women or her partner”, the Court held that the section intends to cover all categories of women within its purview, whosoever wants to get their fetus aborted for an unwanted pregnancy. The court compared the provisions of the pre-amendment and the post-amendment modifications to Section 3 of the MTP Act, wherein prior to the amendment the word “women or her partner” was not existing but was substituted through the amendment of 2021. Holding women’s rights to her reproductive choice as an insegregable and inseparable part of her personal liberty as under Article 21, it was held that women have a sacrosanct right to her bodily integrity. Referring to the longline of judgments of Suchita Srivastava v. Chandigarh Admn.,⁶ K.S. Puttaswamy v. Union of India,⁷ and High Court on its own Motion v. State of Maharashtra,⁸ the Court held that if the woman does not want to continue her pregnancy, then forcing her to do so violates her bodily integrity and aggravates her mental trauma which would be deleterious to her mental health. Engagement in premarital sex cannot be labelled as vicious or criminal in nature only because notions of social morality are totally subjective. The plea of the women accordingly was entertained, judgment of the High Court was set aside, holding that the rules read with Section 3(2)(b) of the MTP Act clearly envisages and encompasses unmarried women within their scope and purview. She was allowed to abort subject to the opinion of the Medical Board of AIIMS Delhi as an interim arrangement.

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(3) Vijay Madanlal Choudhary v. Union of India⁹

(Delivered on July 27, 2022)

Coram: 3-Judge Bench of HM Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar

Authored by: HM Justice A.M. Khanwilkar

Challenge was laid to various provisions of the Prevention of Money Laundering Act, 2002 (“PMLA Act”) and the various Rules framed thereunder, specifically the provisions relating to the following three heads:

(a) The registration of ECIR and procedures relating to disclosure of the same to the accused person.

(b) Powers of arrest and grant of bail in relation thereto.

(c) Attachment of property as proceeds arising out of crime/offence committed under the scheduled offences.

PMLA Act and objectives

The Court whilst referring to the parliamentary intent of PMLA Act observed that money laundering has become a means of livelihood for drug dealers, peddlers, terrorists, human traffickers, and host of white-collar criminals. Circulation of tainted money breeds discontent in the society and the country both, leading to more crime and civil unrest, consequentially obliging the Central Government to protect the people from such offences. The proactive steps taken towards checking such serious and deleterious offences for the society must always be facilitated and the interpretation of various provisions must also be in accord thereof.

The Court while adjudicating upon the constitutionality of the PMLA Act extensively referred to the international background, conferences and resolutions that compelled the enactment of such a strongly worded enactment viz. UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Basel Statement of Principles enunciated in 1989; the financial action task force (“FATF”) established therein in July 1989, later adopted by the UN General Assembly in February 1990, urging the State parties and signatories to enact comprehensive legislation for dealing with the serious threat of money laundering. The Court also examined and scanned the Preamble, legislative intent, parliamentary objective, and other provisions behind enactment of the PMLA Act, to arrive at a finding that the purpose of PMLA Act was as serious as the major design to remedy it viz. putting a lid on activities emanating, relating, perpetuating, or leading to money laundering.

Section 5: Attachment, adjudication and confiscation of property involved in money laundering

Whilst repelling the challenge to Section 5 the Court held as follows:

(a) The powers are vested in a senior responsible officer of the rank of Director (not below the rank of Deputy Director in any eventuality). Such authorised senior officer is expected to act only when there are reasons to believe “on the basis of material in his possession, recorded in writing” that when proceeds of crime (money laundering) are likely to be concealed, transferred, or dealt with in any manner resulting in frustrating, wiping out of the proceedings concerning confiscation, then he may order for immediate attachment of the property involved.

(b) The order of attachment is preceded by order of provisional attachment, only after approval by the Magistrate or Court competent to take cognizance of the scheduled offence (under the Schedule II, PMLA Act). This acts as another check on arbitrary attachment or confiscation of the subject property.

(c) The efficacy and urgency of prevention of money laundering demands an urgent, timely intervention by the authorised investigating agency, for which reason therefore, without registering FIR the power has rightly been conferred for provisionally attaching the apprehended proceeds of crime without formal registration of FIR.

(d) The provisional attachment is operative for a time-bound period of 180 days, within which it has to be approved by 3-member adjudicating authority of senior responsible judicial officers, failing which it ceases to exist. The orders of adjudicating authorities are subject to appeal before Appellate Tribunal constituted under Section 25 of the 2002 Act, thus not making the adjudicating authority the final arbiter on the said issue. The Appellate Tribunal can always decide on the validity of the same, which is further appealable before the High Court under Section 42 of the 2002 Act on both questions of fact and law.

Thus, Section 5 was held to be not arbitrary, unguided, or violative of Article 14 of the Constitution of India.

Validity of Sections 17 and 18 — Search and Seizure

The Court then examined the validity of Sections 17 and 18, whereupon it was argued that without registration of any FIR by the authorised officer, the powers of search and seizure could be resorted to. Holding the 2002 Act as a self-contained code and not influenced or affected by any of the provisions of Code of Criminal Procedure, 1973, especially relating to arrest, search and seizure, attachment, investigation, prosecution, etc., the Court held that CrPC cannot be made the basis for adjudicating upon the constitutionality of Section 17 of the PMLA Act. Even otherwise the pari materia provisions relating to such potent powers of search and seizure in other enactments viz. Income Tax Act, 1961, Customs Act, 1962 (Sections 105 and 136), Foreign Exchange Regulation Act, 1973 (Section 37), Court held that such powers and provisions are not new to PMLA Act but have been existing for many decades in other enactments, affirmed and upheld by the Constitution Benches of the Supreme Court.

Validity of Section 19 — Power to arrest

Considering challenge to Section 19, the Court declined to hold the same to be arbitrary or violative of Articles 14, 19 and 21 of the Constitution of India on the ground that powers of arrest are invested with high-ranking officials with strong inbuilt safeguards (reasons to be recorded in writing and grounds of arrest to be informed to the affected person at the earliest). Referring to other statutory safeguards guarding against arbitrary, immediate, or impulsive arrest, Court held that justifiably arrest can be effected under Section 19 without any formal FIR; such a practice and power has been provided in multiple other enactments, which have been governing the field for long and even held to be constitutional by the Supreme Court in the past.

Reference in this regard was made to the pari materia provisions under the other economic legislations affirming and upholding the wide powers of arrest viz. FERA Act (Section 35), Customs Act (Section 104). Referring to the Constitution Bench judgment in Ramesh Chandra Mehta v. State of W.B.¹⁰ and Union of India v. Padam Narain Aggarwal¹¹, on the powers of arrest, since the arrest could not be effected without “reasons to believe”, with immediate production before the Magistrate within 24 hours, it was stated that both measures ensure as a check over possibility of any arbitrary mechanical arrest. Referring to the judgments of Premium Granites v. State of T.N.¹², Sukhwinder Pal Bipan Kumar v. State of Punjab¹³ and Ahmed Noormohmed Bhatti v. State of Gujarat¹⁴, it was held that the requirement 0f giving specific reasons for exercise of powers vested with higher and senior officers leads to presumption that the discretion will not be ordinarily abused. Section 19 cannot be held unreasonable or arbitrary merely because the authority in power may abuse its authority.

Validity of Section 45 — Provisions relating to bail

Referring to the Constitution Bench judgment of M.P.V. Sundararamier and Co. v. State of A.P.¹⁵, the Court drew a fine distinction between the effects of unconstitutionality of the statute, arising firstly, because of incompetency of the legislature and secondly, because of some of its provisions infringing constitutional guarantees (fundamental rights). In the latter case, the law becomes effective without re-enactment, if the constitutionally offensive provisions are zipped, tailored, and deleted, but not in the former. Thus, holding that Amendment of 2018 as the validating Act, removed the defect retrospectively, the basis of Section 45 being declared unconstitutional in Nikesh Tarachand Shah v. Union of India¹⁶. The defect which had led to Section 45 being declared unconstitutional viz. the existence of the phrase “punishable for a term of imprisonment of more than three years” under Part A of the Schedule, stood substituted by words under this Act “through the 2018 Amendment”, and thus the effect of Nikesh Tarachand Shah¹⁷ judgment was undone. The twin conditions now stand associated with all the offences under the 2002 Act, and Section 45 becomes operative, constitutional, and enforceable. The Court also referred to reasoning in the Constitution Bench judgment of Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality¹⁸, wherein “the doctrine of taking away” for validating Acts was elaborated and discussed for reviving the validity of unconstitutionally declared provisions under a re-enacted law. For the same proposition, reference was also made to the judgments of Comorin Match Industries (P) Ltd. v. State of T.N.¹⁹, Indian Aluminium Co. v. State of Kerala²⁰, State of H.P. v. Narain Singh²¹, to reiterate and emphasise upon the said proposition. Accordingly, the challenge to Section 45 was repelled, in view of the 2018 Amendment and the defect being rectified by the Parliament.

On the aspect of the twin conditions being reasonable conditions per se, the Court referring to Constitution Bench judgments in Kartar Singh v. State of Punjab²², and Usmanbhai Dawoodbhai Memon v. State of Gujarat²³, held that twin conditions as imposed by Section 45 have been held to be justifiable in the cases of heinous and serious offences in case of other enactments. On this aspect, the reasoning, and observations of the previous judgment of Nikesh Tarachand Shah²⁴ were distinguished and held to be inconsonant with the judgments of the Constitution Bench in Kartar Singh²⁵ and Usmanbhai Dawoodbhai Memon²⁶. Holding that economic offences have a serious impact on the community, society, and the nation at large; they should not be viewed with any permissive eye, especially when the international community and State have felt the necessity of treating the offence of money laundering as a graver one, the twin conditions for grant of bail for under Section 45 can very well be held to be justifiable. The twin conditions do not impose absolute restraint on the grant of bail, but just restrict the discretion, vested in courts with judicial powers and judicial officers. On this aspect, the Court referred to the judgments of Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra²⁷, in case of pari materia provisions in other enactments like Maharashtra Control of Organised Crime Act, 1999 (MCOCA) [Section 21(4)]; Serious Fraud Investigation Office v. Nittin Johari²⁸, in the context of Section 212(6) of the Companies Act.

Referring to the mandate of Articles 38 and 39 of the Constitution of India, Court held that economic offences stand on far graver footing as they harm the society as a whole and lead to illicit accumulation of wealth. Being a serious offence affecting the society and country at large, therefore, the twin conditions for grant of bail introduce an effective proportionate mechanism for checking the commission of such serious economic offences. The court accordingly upheld and affirmed the twin conditions for grant of bail.

Validity of Section 50 — Powers to summon, seizure, eliciting evidence and prosecution for any false disclosure

On the aspect of validity of Section 50, the said provision was challenged as being violative of Article 20(3), the fundamental right against self-incrimination. The Court explaining the scope of applicability, relied on the judgments of Raja Narayanlal Bansilal v. Maneck Phiroz Mistry²⁹, State of Bombay v. Kathi Kalu Oghad³⁰, Ramesh Chandra Mehta v. State of W.B.³¹ and other host of judgments holding that Article 20(3) shall be attracted only if there is a formal accusation against any person in the capacity of an accused during an investigation. The proceeding contemplated under Section 50 is more in the nature of an inquiry and not investigation treating the person summoned as an accused in the proceedings, as the PMLA Act is also about prevention of the very activity and action of money laundering, which is a civil action per se. Thus, the constitutional bar under Article 20(3) or Section 25 of the Evidence Act cannot be resorted to as a sword for challenging Section 50, unless and until the person is arrested and such information contemplated under Section 50 is sought to be extracted after his arrest. The investigation under Section 50, even though titled as investigation, is more in the nature of inquiry which is not being undertaken “by a police officer” but by the authorities designated under the PMLA Act. Referring to the judgments of State of Punjab v. Barkat Ram³² wherein Customs Officer under Land Customs Act, 1924 that not every officer authorised with the power to issue summons, or inquiry can be treated as a police officer. Multiple other judgments on the same proposition as to when an officer in such circumstances be treated as “a police officer” to attract Constitution protection under Article 20(3) viz. Badaku Joti Savant v. State of Mysore³³ and Ramesh Chandra Mehta v. State of W.B.³⁴ were quoted to highlight the difference between police officers exercising powers of ensuring law and order for controlling crime vis-à-vis the officers conducting inquiry under specialised legislations like PMLA Act.

Validity of the Schedule Part A to the PMLA, Act (Providing for various offences under which the PMLA offences are said to have been commissioned)

On the validity of Schedule to the PMLA Act, especially Part A, (providing for various offences under which the PMLA offences are said to have been commissioned), the Court held that it is a matter of pure legislative policy, which the courts are not supposed to be interfering into. It is the Parliament’s prerogative to decipher which offences to be covered under the fold of PMLA Act, which prerogative cannot be declared to be unconstitutional till and until the legislative competence to do so exists under Schedule VII to the Constitution of India.

Accordingly, the challenge to various provisions and rules made under the PMLA Act was repelled by the Supreme Court.

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(4) State of M.P. v. R.D. Sharma³⁵

(Delivered on January 27, 2022)

Coram: 2-Judge Bench of HM Justices D.Y. Chandrachud and Bela M. Trivedi

Authored by: HM Justice Bela M. Trivedi

The judgments of the High Court of Madhya Pradesh dated 28-4-2017 and 17-9-2019 passed in the original writ petition and the review petition respectively were assailed before the Supreme Court. The High Court had set aside the view taken by Central Administrative Tribunal and held that the respondent, when he retired from the post of Principal Chief Conservator of Forest (“PCCF”) in 2001 was on the principles of “equal pay for equal work” (“EPEW”) entitled for the same pay scale as was fixed and was payable for Head of Forest Force in the State of M.P. whilst directing so, the High Court took into consideration and applied impliedly the provisions of amended Rules of 2008 for amending the Forest Service (Pay) Rules, 1968. Two issues arose before the Supreme Court:

(a) Maintainability of special leave petition under Article 136 before the Supreme Court against the order passed in the review petition, once the previous SLP against the main judgment in the original writ petition was withdrawn with liberty to approach the High Court, without any specific liberty for filing a fresh SLP against the judgment in review petition.

(b) The applicability of principle of “EPEW” under Article 14, when the person though retired before the introduction of amendment to the service pay rules, but was officiating on the same post, to which the upgraded pay scale was effected, and applicability of Article 14 in such circumstances.

On the first issue, the Court referring to the recent judgment of Sudhakar Baburao Nangnure v. Noreshwar Raghunathrao Shende³⁶ held that where SLP against the judgment of writ petition is withdrawn with the liberty to approach the High Court and the Supreme Court observes or refrains from expressing any opinion on merits, then SLP against order/judgment passed in the review petition is also maintainable, without any specific mention of liberty being granted to approach the Supreme Court again challenging the judgment passed in the review petition. The Court thus, held that it would lead to an egregious failure of justice if the SLP is withdrawn without the court expressing any opinion on the merits of the matter against the judgment in the original writ petition and review is made non-maintainable against the judgment in the review petition. The SLP against the review petition was thus, held to be maintainable.

On the second issue, the Court held that the Rules could not have been applied automatically and retrospectively in case of the respondent by the High Court who had retired in the year 2001, much prior to introduction of amended Rules in 2008. The upgraded posts, subsequently through the amended Rules, even if it was equivalent to the posts existing in 2001, for 2 fundamental reasons, firstly, of a different nomenclature and secondly, the post under amended Rules to be filled up through “selection” and not as a “matter of course”. Thus, the benefit of the pay scale of the upgraded post would have accrued only if the petitioner retired from the said post, not otherwise, even if he was serving and discharging the same duties of the Head of State of Forest Force. Explaining the concept of “selection post”, Court held that it involves the process of screening followed by shortlisting and eventual selection amongst many equally placed officers and therefore, the benefit of the upgraded “selection posts” cannot be granted automatically to the respondent writ petitioner.

Court distinguished the judgments of State of Punjab v. Jagjit Singh³⁷, holding that equation of posts and determination of pay scale is the primary function of the executive, not of the judiciary, an evaluation which is generally left to the expert bodies like the Pay Commissions to undertake. Referring beneficially on the said proposition to the judgments of Secy., Finance Deptt. v. W.B. Registration Service Assn.³⁸ and State of Haryana v. Haryana Civil Secretariat Personal Staff Assn.³⁹, it was held that EPEW is not a fundamental right vested in any employee, albeit a constitutional goal to be achieved by the Government.

Accordingly, reversing the judgment of the High Court setting aside the view taken by CAT, the Court held that the High Court had wrongly exercised the supervisory jurisdiction under Article 227 of the Constitution of India.

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(5) State (NCT of Delhi) v. Union of India⁴⁰

(Delivered on May 6, 2022)

Coram: 3-Judge Bench of HM Justices N.V. Ramana, Surya Kant, and Hima Kohli

Per Curiam (Full Court’s) Order of Reference

The batch of civil appeals and writ petitions was the third round of litigation between the parties viz. the Government of NCT of Delhi and the Central Government (UOI). The question related to the interpretation of Article 239-AA of the Constitution relatable to demarcation of exercise of legislative powers of the Legislative Assembly of the Union Territory of Delhi vis-à-vis the Parliament in respect of the National Capital Territory of Delhi; also, the power of the Parliament to annul the laws made by the Union Territory through the “doctrine of repugnancy”, in respect of which interpretation essentially turned upon Article 239-AA(3)(a). In the reference made to the Constitution Bench, there were thus three set of opinions, whilst answering references made to it. The matter was then sent back to the 2-Judge Bench, which on singular issue again tossed the matter back to larger Bench, insofar as the legislative competence of the Government of Delhi considering Entry 41, List 2 of VIIth Schedule was concerned. The matter was thus placed before the 3-Judge Bench, which was considering the application under Article 145(3) of the Constitution. The Union of India contended that the previously constituted Constitution Bench has not interpreted certain phrases occurring under Article 239-AA, owing to which pronouncement cannot be treated as conclusive on the aforesaid two phrases, which were as follows:

“(a) Insofar as any such matter is applicable to Union Territory.

(b) Subject to the provisions of this Constitution.”

However, the Court declined the reference again to the larger Bench as prayed for by the Union of India under Article 143(3), but agreed to examine the limited issue of interpretation of word/term “services“ occurring under Article 239-AA (3)(a), read with Entry 41 List 2, VIIth Schedule. In terms of the same, the matter was referred to Constitution Bench for answer to such limited issue and query.

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(6) Satyajit Kumar v. State of Jharkhand⁴¹

(Delivered on August 2, 2022)

Coram: 2-Judge Bench of HM Justices M.R. Shah and B.V. Nagarathna

Authored by: HM Justice M.R. Shah

The appeals were filed against the judgment of the Division Bench of the Jharkhand High Court dated 21-9-2020, through which notifications issued by the Governor, State of Jharkhand and the consequential advertisements notifying the vacancies and letter of appointment issued qua posts of trained graduate teachers ( “TGT”) in government schools of 13 Scheduled areas as illegal, ultra vires and unconstitutional. The Division Bench had quashed the notification and all the appointments consequently made, whilst accepting a challenge to the 100% reservation made for the posts of those 13 districts. The 13 districts in the scheduled areas are these areas notified through Presidential Notification dated 11-4-2007, in which whilst issuing the posts, 100% reservation was made for local residents of these local districts, which fell for challenge on various grounds of being violative of Article 13, 14, 16(2), 19 of the Constitution of India. The Court formulated the following three issues for resolution and consideration:

1. Whether in exercise of powers conferred under Para 5(1) of the Fifth Schedule to the Constitution of India, the Governor can provide for 100% reservation contrary to Part III of the Constitution of India, more particularly, guaranteed under Articles 16(1) and (2)?

2. Whether in exercise of powers under Para 5(1) of the Fifth Schedule to the Constitution of India, the Governor has the power to modify the relevant recruitment rules framed under Article 309 of the Constitution of India?

3. Whether the appointments that were already made against the notified vacancies and posts ought to be disturbed or left undisturbed?

The Court then examined Para 5 of the Vth Schedule of the Constitution titled as “law applicable to scheduled areas” and the previously passed Constitution Bench judgment of Chebrolu Leela Prasad Rao v. State of A.P.⁴² in the context of Andhra Pradesh. Relying on the judgment of Chebrolu Leela Prasad⁴³, the Court held that the Governor under Schedule V of Constitution of India does not have any inherent power to introduce any new law, but has a limited power, of urgent nature of exempting the application of any law enacted by the Parliament of the State over any scheduled area for any particular time. The Vth Schedule does not recognise or confer such positive power to enact, but such power is only for applying any “existing law” with exception of modifications. Further, the Court held that the rules framed under Article 309 cannot be amended in exercise of powers under Para 5(1) of Schedule V, as such rules cannot be treated as a parliamentary or the State enactment.

On the aspect of applicability to Part III of the Constitution to powers of the Governor available under Para 5 of Schedule V, Court held that Part III applies with full rigour and restricts the power of Governor from impinging upon or interfering with the fundamental rights available under Part III of the Constitution of India. It was further held that 100% reservation is impermissible under the Constitution and is inherently violative of Articles 14, 15 and 16 as opportunity of public employment against public posts cannot be denied unjustly to the incumbents and made a prerogative of a few. The total exclusion of citizens by creating an opportunity for one class or few selected people without any proper classification with objective and justification cannot be treated as constitutionally justifiable. Accordingly, the Court affirmed the judgment of the High Court, holding the notifications and the appointments carried out to be unconstitutional and illegal. However, on the question of balancing of equities and protecting those already appointed against the posts, Court held that since the process right from its inception and beginning had been under challenge before the High Court which made its subject to final outcome of the same, therefore it could not be said that equities were created and third parties right were created prior to passing of the judgment. However, on the plea of not disturbing hundreds of appointment of local residents made on the post of TGTs that had already taken place, as a one-time arrangement, the Court modified the judgment of the High Court directing that instead of a fresh/de novo recruitment process being undertaken by quashing the appointment already made in scheduled/district areas, the State shall revise the merit list based on already published cut-off obtained by the last selected candidates in each TGT’s subject again the respective categories with respect to entire State and candidates from non-scheduled areas and scheduled areas/districts. The aforesaid directions were issued holding limited to the peculiar facts of the case under Article 142 of the Constitution of India and in the larger public interest of smooth running of schools and educational set-ups in the scheduled areas/districts.

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(7) Deepika Singh v. Central Administrative Tribunal⁴⁴

(Delivered on August 16, 2022)

Coram: 2-Judge Bench of HM Justices D.Y. Chandrachud and A.S. Bopanna

Authored by: HM Justice D.Y. Chandrachud

The matter travelled to Supreme Court from CAT Chandigarh, Punjab and Haryana High Court, which had both denied the advantage of the maternity leave to the appellant, who gave birth to a child whilst working on the post of Nursing Officer in Post Graduate Institute of Medical Education and Research, Chandigarh. The appellant was married to a person, who had 2 children from his prior marriage and was married to the appellant on the death of his previous wife. The first biological child of the appellant was born on 4-6-2019, when she in terms of Rule 43 of the Central Civil Services (Leave) Rules, 1972 (“Leave Rules”) applied for the grant of leave. The application for grant of maternity leave of 180 days and resultant allowances were denied to her on the ground that she already had two children from her marriage (which were, otherwise from the previous marriage of the person whom the appellant was married), owing to which maternity leave for the third child cannot be granted for the sanctioned period i.e. 2 yrs (730 days) during the entire service. The CAT Chandigarh and High Court both held the denial of leave in terms of Rule 43(1) to be just and fair, against both of which the matter travelled to the Supreme Court. Scanning the anatomy of Rule 43, specifically referable to “maternity leave”, the Court held that the wording of the rules in question requires beneficial and liberal construction having nexus with a purpose-oriented approach. If the little construction of the provision of such beneficial legislation leads to difficulties and absurdities, then the legislation should not be put in “procrustean beds or shrunk to Lilliputian dimensions”. The principle of beneficial interpretation was aptly applied by referring to judgments of US Courts, as also the precedents of the Supreme Court. Referring to the longline of judgments of K.H. Nazar v. Mathew K. Jacob⁴⁵ and Badshah v. Urmila Badshah Godse⁴⁶, it was held that it is the bounden duty of the courts to advance the cause of “social justice” and it is the bounding duty of the court to bridge the gap between law and security. The Court underscored the necessity of “social context judging” by a fruitful application of equality jurisprudence evolved by the Parliament and Supreme Court over the passage of time, which is also known as social justice adjudication. The role of the court was stated to be primarily helping the law achieve its purpose. Thereafter, interpreting Section 3(c) of the Maternity Benefit Act, 1961 and correlating the definition of “delivery” with the same, the Court held that the Act of 1961 is aimed at securing women’s right to pregnancy, maternity leave and to afford reasonable flexibility to live both as a mother and as a worker. Referring further to Universal Declaration of Human Rights, 1948, and the Convention on the Elimination of All Forms of Discrimination Against Women, the Court advised interpretation of Central Civil Services (Leave) Rules, 1972 from the perspective of Article 15 and other relevant constitutional rights and provisions. Referring extensively to the international documents, treaties, and the declarations to which India has been a signatory to, the Court held that it is necessary to align ourselves by interpreting our local and domestic laws in tune with the international conventions and documents. Since in the present case, the appellant never had any biological children, except the two which were born from the previous marriage of the husband, the appropriate interpretation shall be applicability of Central Civil Services (Leave) Rules, 1972 to those contingencies when there is a biological childbirth. Thus, the appellant was entitled to the grant of maternity leave provided for any other category of employees (i.e. for a period of 2 years).

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(8) Ashwini Kumar Upadhyay v. Union of India⁴⁷

(Delivered on August 26, 2022)

Coram : 3-Judge Bench of HM Justices N.V. Ramana, Hima Kohli and C.T. Ravikumar

Per Curiam (Full Court’s) Order of Reference

The questions arose in the batch of writ petitions relating to promises made by the political parties for the distribution of free goods (freebies) as part of their election manifesto or during election speeches. Such “freebies” were challenged as having a large-scale impact on the economy of the State, which are made invariably without any assessment of the financial implications on the State but simply for attracting the vote bank. A request was made for reconsideration of the judgment of S. Subramaniam Balaji v. State of T.N.⁴⁸ wherein the Supreme Court held whilst interpreting Section 123 of the Representation of People Act, 1951 that such pre-poll promises for “freebies” do not fall within the ambit of corrupt practices. The Court in S. Subramaniam Balaji⁴⁹ had issued directions to the ECI for framing of certain guidelines in the absence of any legislative enactment covering the field. The aforementioned reasoning of the Supreme Court in the aforementioned judgment was challenged as having serious ramifications over the State policies and that directive principles of State policy override fundamental rights is a proposition erroneously stated in the aforementioned judgment.

Accordingly, the issue and the batch of writ petitions were referred to 3-Judge Bench for consideration.

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(9) Ahmednagar Mahanagar Palika v. Kamgar Union⁵⁰

(Delivered on September 5, 2022)

Coram: 2-Judge Bench of HM Justices M.R. Shah and B.V. Nagarathna

Authored by: HM Justice M.R. Shah

The issue that arose before the Supreme Court was about the validity of the scheme of erstwhile Ahmednagar Municipal Council (later converted to Ahmednagar Municipal Corporation in 2003), through which the legal heirs/successors of all the retiring/superannuating employees were automatically considered for the appointment on the on the retirement. The question that arose was the validity and legality of implementation of such a scheme on the superannuation of the outgoing retiring employee, vis-à-vis Articles 14 and 16 of the Constitution of India. Erstwhile Ahmednagar Municipal Council had a scheme in place approved by its apex body, through which the legal heirs of retiring/outgoing employees were given compassionate appointments on their retirement, for ensuring the economic dependence and balance of the family. However, the question arose about implementation of the said scheme and the rights of the legal heirs of employees who continued after the upgradation of the Municipal Council, Ahmednagar to Municipal Corporation, Ahmednagar.

The Court examined the said aspect, especially the award passed by the Industrial Tribunal in favour of the employees and held that the scheme of the erstwhile Municipal Council, Ahmednagar shall not be binding on the newly transformed Municipal Corporation, Ahmednagar, which shall be governed by the arrangement, scheme, and provision fixed by the State Government. Referring to the recent judgment of the Supreme Court in Secy. to Deptt. of Education v. Bheemesh⁵¹, the Court opined that the employees of newly constituted Municipal Corporation shall be governed by the scheme of State Government at par with the government employees, which does not provide for appointment on compassionate grounds to the legal heirs of employees on their retirement/superannuation.

Further, appointment on compassionate grounds, in view of the equality doctrine provided under Articles 14 and 16 is an exception and should not be incorporated or followed by way of a rule, since it leads to crusading and sacrifice of merit, which cannot be accepted. If such a scheme is allowed to continue, then it leads to denial of equality of opportunity of appointment to more meritorious, well-educated and qualified aspirants to the post. Therefore, the interpretation must be in accord with the constitutional spirit of Articles 14, 15, and 16 and eventually, the Court held the scheme of automatic compassionate appointment to be not applicable to the legal heirs of the outgoing/retiring employees.

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(10) Pharmacy Council of India v. Rajeev College of Pharmacy⁵²

(Delivered on September 15, 2022)

Coram: 2-Judge Bench of HM Justices B.R. Gavai and P.S. Narasimha

Authored by: HM Justice B.R. Gavai

The petitioners laid a challenge to the validity of executive departmental resolutions passed by the Pharmacy Council of India “PCI”), through which a five-year moratorium (ban) was imposed on opening of new colleges in the country. The special leave petitions were preferred by the PCI before the Supreme Court against the judgments passed by various High Courts such as Delhi, Chhattisgarh, and Karnataka High Court, which had all quashed PCI Regulations, holding the same to be beyond jurisdiction and ultra vires the PCI Act. The broad issues and arguments before the Court revolved around the following contentions:

(a) Right to open, operate and run educational institutions being a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India, the same could have never been taken away through executive instructions passed by way of resolution/departmental orders by the PCI.

(b) The PCI could have introduced any such moratorium or ban only by way of a regulation notified in the Official Gazette and not otherwise. For want of proper notification, therefore the government resolutions (GRs) imposing ban by the PCI were unconstitutional.

(c) The GRs imposing ban were discriminatory and violative of Article 14 on the ground that they exempted identically situated colleges/societies running existing colleges from opening a new institution, when societies who were opening maiden institutions were debarred from doing so.

(d) The PCI could not have abdicated its statutory powers and duties of examining and scrutinising each and every application vested in it by virtue of Sections 12, 13 and 15 of the PCI Act, 1948.

(e) The ban imposed by the PCI were creating a monopoly and anti-competitive environment, favouring the existing colleges and players in the field of pharmacy education, whilst restraining the new players from entering the field and proving their competence and capabilities.

The Supreme Court examined the essential contentions of the petitioner about infringement and impairment of fundamental rights through executive instructions. Relying on the longline of judgments from TMA Pai Foundation v. State of Karnataka⁵³, and Islamic Academy of Education v. State of Karnataka⁵⁴, and P.A. Inamdar v. State of Maharashtra⁵⁵ (all Constitution Bench judgments) Court held that running, setting up and operation of educational institutions can safely be inferred and labelled as fundamental rights under Article 19(1)(g) of the Constitution of India and a citizen cannot be deprived of the said right except in accordance with law. Referring to the judgment of State of Bihar v. Project Uchcha Vidya Sikshak Sangh,⁵⁶ the Court further held that the requirement of law for putting restrictions under Article 19(6) of the Constitution can by no stretch of imagination be achieved by issuing a circular or a policy decision in terms of Article 162 of the Constitution otherwise, but such law must be duly enacted by the legislation. Accordingly, on the second issue of authorisation and delegation by the PCI Act to impose a moratorium-cum-ban on opening of new institutions, the Court referred to a host of judgments viz. Hira Devi v. District Board, Shahjahanpur⁵⁷, V.T. Khanzode v. RBI⁵⁸, to hold that statutory corporations can do only such acts and take decisions as authorised by the statute creating it and the powers of such corporations cannot extend beyond what statutes provide expressly or by necessary implications. If an act is neither expressly or impliedly authorised by the statute which creates the corporation, it must be taken and presumed to be prohibited. Accordingly, referring to the Halsbury Law of England, 4th Edn., the Court held that such a power of imposing a ban cannot be read into PCI Act, more so being issued through an office memorandum in the form of executive instructions. Accordingly, the Supreme Court affirmed the views taken by the Karnataka, Delhi, and Chhattisgarh High Courts as a correct position of law setting aside the ban.

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(11) Aishat Shifa v. State of Karnataka⁵⁹

(Delivered on October 13, 2022)

Coram: 2-Judge Bench of HM Justices Hemant Gupta and Sudhanshu Dhulia

Authored by: HM Justice Hemant Gupta

The Government of Karnataka had issued a Circular dated 5-2-2022 mandating all government schools in the State to abide by official uniform. Vide the said order, restricted the wearing of hijab, which was challenged to be violating liberty, equality, and fraternity as well as the primary idea of secularism as is enshrined in Preamble to the Indian Constitution. The Karnataka High Court upheld the said government order and the same was under challenge and decided by the Supreme Court. The Supreme Court was confronted with the following issues in the present case:

(i) Whether the case should be referred to a Constitution Bench and if present case should be heard along with the Kantaru Rajeevaru (Right to Religion, In re-9 J.) (2) v. Indian Young Lawyers Assn.⁶⁰

(ii) Whether prohibition or restriction or otherwise by the College Development Committee (“CDC”) on headscarves is violative of Section 143 of the Karnataka Education Act, 1983 (“Education Act”) and whether State Government can delegate its decision to implement its decision of wearing uniform by the College Development Committee or the Board of Management?

(iii) What is the scope of freedom of “conscience” and “religion”, and its ambit under Article 25?

(iv) What is essential religious practice and its scope and ambit under Article 25 of the Constitution?

(v) Whether fundamental rights to privacy under Article 21 and freedom of expression under Article 19(1)(a) are mutually exclusive or complementary to each other; whether the government order for the purposes of Articles 21 and 14 fulfills the mandate of reasonableness?

(vi) Whether wearing hijab can be considered to be an essential religious practice and if so, does a student have the right to wear a headscarf in a secular school?

(vii) Whether the students are expected to give up their fundamental rights under Articles 19, 21, and 25 to access education in a State institution?

(viii) Whether the State is obligated to provide “reasonable accommodation” to its citizens?

(ix) Whether the government order goes against the legitimate State interest of promoting literacy and education as outlined in Articles 21, 21-A, 39(f), 41, 46 and 51-A of the Constitution?

(x) Whether the government order achieves equitable access to education, promotes secularism, and aligns with the objectives of the Karnataka Education Act?

The Court whilst delving into the various issues, delivered a split verdict, wherein the 2-Judge Bench of HMJ Hemant Gupta and HMJ Sudhanshu Dhulia gave opposing opinions on the matter. While deciding the appeal, Justice Hemant Gupta held as follows:

1. Deciding on whether the present case to be referred to a larger Bench for joint hearing with Kantaru Rajeevaru (Sabrimala Temple Review-5J) v. Indian Young Lawyers Assn.⁶¹, to determine what is to be considered “essentially religious” in terms of practice and being an innate and indispensable part of the religion. Justice Hemant Gupta noted that the questions in Kantaru Rajeevaru (Right to Religion, In re-9 J.) (2) v. Indian Young Lawyers Assn⁶² deal with questions that are much wider in their scope. Thus, the issue at hand was not referred to a larger Bench (Constitutional Bench) since the issue being dealt by the Court was not one where the power of judicial review is examined rather, the Court was presented with the issue of deciding whether a secular institution in a State can regulate religious practices which are essential to the said religion. Justice Gupta relied on the 9-Judge Bench judgment in K.S. Puttaswamy v. Union of India,⁶³ in which it has been held that only the Supreme Court has the power to decide whether a substantial issue of interpretation of the Constitution be referred to a Constitution Bench under Article 145(3) or not.

2. Deciding on the second issue, Justice Gupta held that the scope and ambit of the powers exercised by CDC are well within their own Constitution (CDC Constitution) and that it is a body that serves to raise and maintain the academic standards. The CDC thus, was not acting against any of the provisions of the Act or Rules made thereunder or that prescribing the uniform was beyond their scope. Justice Hemant Gupta further held that the government order establishes a link with the powers delegated to the executive and the States rule-making power under Section 133 of the Education Act and Article 162 of the Constitution of India respectively. Reliance was place on the judgment of Sant Ram Sharma v. State of Rajasthan,⁶⁴ wherein the Supreme Court held that while the Government cannot supersede statutory rules vide administrative instructions, it can however supplement the statutory rules to fill in the gaps where the rules are silent. Further reliance was placed on Union of India v. Ashok Kumar Aggarwal⁶⁵ in which the Supreme Court held that instructions cannot be issued to supplant the statutory rules but can be issued to supplement it.

3. Deciding on the third issue, Justice Gupta examined the freedom of religion and conscience with special reference to Article 25(1) of the Constitution. Reference was made to the judgment of TMA Pai Foundation⁶⁶ in which the Supreme Court held that Article 25(1) of the Constitution is not only concerned with public order, morality, and health, rather the Article 25(1) is also subject to “other provisions of Part III of the Constitution”. Thus, the right provided under Article 25(1) is not an absolute right, it is liable to be curtailed in view of violations occurring in “other provisions of Part III”. Justice Gupta further clarified that the object of the government order issued, mandating the government schools to follow the prescribed uniform was to encourage a secular environment and uniformity, and could not be said to be in violation to Article 14 of the Constitution. The right to religion is not absolute but should be read in conformity and with reasonable restrictions along with other rights given in Part III of the Constitution. Also, the rights provided are not to be compartmentalised into one but to read all in conformity and aid with each other, as a whole. It was held that Articles 19(1)(a) and 21, are complementary to each other and not mutually exclusive.

4. Deciding on the fourth issue, Justice Gupta examined Muslim law and its sources. The reference was made to the Constitutional Bench judgment in M. Ismail Faruqui v. Union of India⁶⁷ wherein the Supreme Court held that offering of prayer could be a religious practice however doing the same at any and every possible place will not be considered as an essential religious practice or an integral part of religion. This Court in Commr. of Police v. Acharya Jagadishwarananda Avadhuta⁶⁸ opined that the core beliefs on which the religion is founded and without which the religion will not be religion, are the essential religious practices. Justice Gupta while deciding this issue held that the appellants were not claiming to perform their practices at religious places, but to wear hijab in educational institutions. It was also held that wearing of headscarf is not allowed only in the school or during school hours and the students can wear it outside schools. Beliefs or marks such as tilak which demonstrate a person’s religious identity should not be allowed in educational institutions funded by the Government. Hence, directing the schools which are run and funded by the Government to prescribe uniforms is not beyond the jurisdiction of the Government. A host of other judgments such as Sri Venkataramana Devaru v. State of Mysore⁶⁹, Durgah Committee v. Syed Hussain Ali⁷⁰, Ratilal Panachand Gandhi v. State of Bombay⁷¹, Shayara Bano v. Union of India⁷² were also referred in this context for concluding that Article 25(2) is a negatively worded enabling provision allowing/providing the State to act in the matters mentioned therein. The case of Bijoe Emmanuel v. State of Kerala⁷³ was referred however was not of much importance since the circular in question was applicable to all schools and not just secular schools.

5. Deciding on the fifth issue, Justice Gupta referred to the landmark judgment of this Court, Bachan Singh v. State of Punjab⁷⁴ and observed that the object of the impugned government order and the State Act and Rules under which it was issued, was to encourage and provide for the better and holistic environment and discipline the student. Mandating the uniform is one of the facets to fulfil the object of the said Act and Rules thereunder. Justice Gupta held that since, the right to religion is not an absolute, while there is reasonable restriction the right guaranteed under Article 19(1)(a) and keeping Bachan Singh⁷⁵ in view, the incidental effect on freedom of speech and expression, and right to privacy cannot be said to be unreasonable restriction.

6. Deciding on the sixth issue, Justice Gupta examined the values enshrined in Part III of the Constitution and referred to Prathvi Raj Chauhan v. Union of India⁷⁶ wherein 3-Judges Bench of the Supreme Court held that the values such as liberty, equality, dignity, and fraternity are assured by the Preamble. The State must treat everyone alike and it is also expected that the citizens treat each other alike. Arguments of the plaintiff that the said government order was in antithesis to the constitutional values of unity in diversity. Justice Gupta while disregarding this argument observed that the aim of our Constitution is to assimilate unity in diversity⁷⁷ and the said government order does not harm the aim of the Constitution, “unity and diversity”.⁷⁸ Fraternity, as it is understood, should not be seen through the prisms of community but should be for all irrespective of caste, creed, religion, and sex. Justice Gupta found the argument stating that wearing of headscarf gives dignity to the girl students as not tenable. It was observed that at the pre-university level, all students should feel, look, and think alike and cultivate their minds in a cohesive and cordial environment. The constitutional aim for fraternity would be harmed if the students of a particular community were allowed to use their religious marks in schools. Hence, with this reasoning, Justice Gupta held that the said government order promotes a healthy environment to encourage fraternity in the true sense and does not infringe constitutional values. Landmark judgments of Indra Sawhney v. Union of India⁷⁹ and K.S. Puttaswamy v. Union of India⁸⁰ were also referred to by the Court in deciding this issue.

7. Deciding on the seventh issue, Justice Gupta held that as a matter of secular schools, the students are required to oblige the discipline mandated by such schools run and funded by the Government. The reference was made to M. Ajmal Khan v. Election Commission of India⁸¹ wherein the Madras High Court disregarded the argument that wearing of purdah by Muslim women is mandated by the holy Quran and interference with this practice by direction of the Election Commission is in violation of their fundamental rights. It was held that to curb the bogus voting and improve transparency in the process, the directions to put photographs in the electoral roll is not violative of Article 25 of the Constitution. Justice Gupta held that, though the said judgment relates to the elections, however, the ratio can be used in the present case as the State-run schools should provide education without discrimination. Hence, the students are not allowed to wear hijab in schools as a matter of right.

8. Deciding the eighth issue, Justice Gupta examined and referred to Nar Singh Pal v. Union of India⁸² observed that the fundamental rights provided in Part III of the Constitution are not to be bartered. The reliance was also placed on Ahmedabad St. Xavier’s College Society v. State of Gujarat⁸³ in that effect. The Court also referred to HMJ D.Y. Chandrachud’s discussion on “decisional autonomy” in K.S. Puttaswamy⁸⁴ Justice Gupta held that the students of a particular community should not put conditions that unless and until they are permitted to wear hijab, they will not attend the classes. The right to education is available to all irrespective of their castes and religions, but in the end, it is the choice of the students whether to avail the right or not. The decision to attend the classes or not is of the students and not of the school while the right to education under Article 21 continues to be available.

9. Dealing with the ninth issue, where the appellant argued that they should be allowed to attend school wearing headscarves matching the school uniform. Even the Kendriya Vidyalaya across the country allows the wearing of hijab to Muslim girls so the State-run schools should also allow the same. Tackling this argument, Justice Gupta held that, in the case of Kendriya Vidyalayas falls under the Ministry of Education under the Government of India, and an autonomous body, and the purpose behind the same is that the Central Government employees are transferred regularly to meet the educational needs of their children by providing the same kind of education. The concept of reasonable accommodation is a special treatment meant for a special child or person. Justice Gupta while taking the argued foreign judgments in view held that, if a reasonable accommodation is allowed in the present case, it would be in contrast to equality provided in Article 14 as it would be a different or special treatment to the students belonging to a particular community. Constitutional values such as liberty, equality, dignity, and fraternity are for all, and no one should get preference in that.

10. While dealing with the tenth issue, Justice Gupta referred to the Commission of Protection of Child Rights Act, 2005, international treaties, and the Convention on Child Rights to which India is a signatory. The judgment of the Supreme Court in Society for Unaided Private Schools of Rajasthan v. Union of India.⁸⁵ was referred to and observed that the right to education falls under Article 21, right to life. It is widely acknowledged that those who are deprived of education are deprived of the dignity and freedom of speech and expression under Article 19 of the Constitution. Also, only the students at the pre-university colleges are mandated to follow the prescribed uniform so that the values of equality and fraternity be imbibed in them. The students at university/college are not mandated and are open to carry on their religious faiths and practices. For the reasons mentioned above, HMJ Gupta held that the government order is not against the legitimate State interest of promoting literacy and education as outlined in Articles 21, 21-A, 39(f), 41, 46, and 51-A of the Constitution. There is also a question about the applicability of Article 21-A as all the students concerned are over the age of 14 years of age. Thus, it was held that while there is a right to education, there is no such right to wear additional clothes (under the garb of essential religious practice) to the uniform in a secular school.

11. Deciding the eleventh issue, Justice Gupta observed that creating a friendly and healthy environment of education for students is the duty of the State. Having a uniform promotes oneness, and equality fades the differences in terms of social and economic status, and the values of fraternity among the young minds of the nation. It also helps to improve discipline and spirit among the students. Constitutional values are provided and available for all irrespective of any grounds, therefore allowing a particular community to wear hijab, a religious symbol, would be against equality and secularism. Therefore, the impugned government order is in accordance with the ethic of secularism and the objectives of the Karnataka Education Act, 1983. The Court referred to Indibly Creative (P) Ltd. v. State of W.B.⁸⁶ holding that every citizen being entitled to wear their religious symbols would be antithesis to the doctrine of secularism, the government order cannot be stated to be going against the doctrine of secularism.

HMJ Sudhanshu Dhulia dismissed all appeals and writ petitions on the grounds mentioned above. He, while disagreeing with Justice Gupta held as follows:

1. Dealing with the essential religious practice issue, Justice Dhulia referred to the famous case of Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt⁸⁷ and Ratilal Panachand Gandhi v. State of Bombay⁸⁸ and observed that the essential religious practice is to be left to the specific religion to which it belongs. However, the issue of determining the essential religious practice is not involved in this dispute. Meaning that the case concerns Article 25(1) and not Article 25(2) or Article 26 of the Constitution of India.

2. It was observed that discipline is required in schools, but it cannot be equated with jail or military camp. Also, it should not be seen at the cost of freedom and dignity provided by the Constitution. To ask a school girl to take off her hijab at the gate of the school is, certainly, an invasion of her privacy and dignity, and a clear violation of her fundamental rights. She carries her right to dignity and privacy in her person whether it be at the school gate or the classrooms. The Puttaswamy⁸⁹ judgment and some foreign judgments were referred to by HMJ Dhulia. Then, HMJ Dhulia referred to the case of Bijoe Emmanuel⁹⁰ stating it to be one which is the closest in facts to the present case.

3. Justice Dhulia observed that the school administration and the State should prioritise what they want, the education of girl child or mandating school dress code. Specifically, it is for girl children, for whom it was difficult from the start. The Karnataka High Court failed to answer some important questions such as how the wearing of hijab is against public morality, order, or health. The decision of the High Court saying that the rights become derivatives inside the classroom is not correct.

4. Justice Dhulia while dealing with the values of religious tolerance, equality, reasonable accommodation, and “unity in diversity” of culture has referred to Aruna Roy v. Union of India⁹¹ and Navtej Singh Johar v. Union of India⁹².

5. It was observed that the impugned government order dated 5-2-2022, putting restrictions on the wearing of headscarves in the schools violates the basic and fundamental tenets of the Constitution. The Preamble provides for the liberty of thoughts, beliefs, expression, and worship. Also, the trinity, liberty, equality, and fraternity is to go hand in hand. One cannot survive without the others. The wearing of hijab is purely a matter of choice. It is secondary whether it forms an essential religious practice or not, but it is a matter of conscience, beliefs, and expression, provided by Part III of the Constitution. If a girl wants to wear a headscarf inside the classroom by her own choice, she should not be stopped. Wearing a hijab should according to Justice Dhulia is simply a matter of choice.

6. The impugned government order issued, unfortunately, restricting girls of a particular community from entering the schools, hence, depriving them from education, and consequently, from the right to dignity. The question that needs to ponder over is whether the Government is making the life of a girl child better by depriving her from education because of hijab or headscarves.

7. Justice Dhulia while allowing the appeal held that the impugned government order issued by the Government is an invasion on the privacy, attack on the dignity, and denying the secular education to the girls of a particular community.

The 2-Judge Bench of the Supreme Court has delivered the split judgment. Justice Hemant Gupta while dismissing all appeals and writ petitions on the abovementioned grounds held that the government order cannot be said to be against the idea of secularism or the objective of the Karnataka Education Act, 1983.

On the other hand, Justice Dhulia while allowing the appeal held that there shall be no restriction on the wearing of hijab anywhere in schools and colleges in Karnataka. Justice Dhulia extensively relied on the landmark judgment of the Supreme Court in Bijoe Emmanuel v. State of Karnataka⁹³.

Since the views taken by the Bench were different, the matter has been referred to a larger Bench of 3 Judges.

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(12) Janhit Abhiyan v. Union of India⁹⁴

(Delivered on November 7, 2022)

Coram: 5-Judge Bench of HM Justices Uday U. Lalit, Dinesh Maheshwari, S. Ravindra Bhat, Bela M. Trivedi and J.B. Pardiwala

Authored by: HM Justice Dinesh Maheshwari

The subject of reservation has always been a hotly contested one in the constitutional canvas of the country. It was found with the intention of giving the backward members of society opportunities they were unable to get because of their social standing or institutionalised oppression. For the ST, SC, and OBC, the First Amendment created a constitutional clause that gave the Government the authority to implement reservation laws. People have embraced and rejected the ideas of reservation over time, with there being sharp divisions in public opinion. Then the 103rd Constitutional Amendment was passed, adding 10% reservation to the already existing layer of reservations for the economically weaker sections (“EWS”). The validity of this reservation was questioned since it exceeded the 50% threshold established previously in Indra Sawhney v. Union of India⁹⁵. There were multiple other grounds of challenge to the same.

The three main issues before the Supreme Court essential to the discussion surrounding this case were as follows:

1. Whether the 103rd Constitutional Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions including reservation, based on economic criteria?

2. Whether the 103rd Constitutional Amendment can be said to breach the basic structure of the Constitution by permitting the State to make special provisions in relation to admission to private unaided institutions?

3. Whether the 103rd Constitutional Amendment can be said to breach the basic structure of the Constitution in excluding the SEBCs/OBCs/SCs/STs from the scope of EWS reservation?

While the main points for a determination as noted by the Supreme Court were:

(a) As to whether the reservation is an instrument for the inclusion of socially and educationally backward classes to the mainstream of society and, therefore, reservation structured singularly on economic criteria violates the basic structure of the Constitution of India?

(b) As to whether the exclusion of classes covered under Articles 15(4), 15(5), and 16(4) from getting the benefit of reservation as economically weaker sections violate the equality code and thereby, the basic structure doctrine?

(c) As to whether reservation for economically weaker sections of citizens up to ten per cent in addition to the existing reservations results in violation of basic structure on account of breaching the ceiling limit of fifty percent?

Broad points of the judgment of the majority and the minority are as follows:

HMJ Dinesh Maheswari discussed the impact of Kesavananda Bharati v. State of Kerala⁹⁶ on Article 368, which now starts with a non obstante clause further stating that any amendment that is made under Article 368 would not come under the purview of Article 13 of the Constitution. In this case, sub-clause (4) ensures that any amendments made to the Constitution of India under Article 368 would not be subject to Article 13. Furthermore, it was decided that the challenge to the constitutional amendment pertains only to the notion that the amendment in question is violative of the basic structure of the Constitution, and thereby constitutional amendment to Articles 15 and 16 needs to be examined through the doctrine of basic structure. Vide the judgment of 13-Judge Bench of Supreme Court in Kesavananda Bharati,⁹⁷ it was held that the Constitution can be amended by the Parliament however, the basic structure of the Constitution cannot be damaged. A longline of judgments such as the Indira Nehru Gandhi v. Raj Narain⁹⁸, Minerva Mills Ltd. v. Union of India⁹⁹, Waman Rao v. Union of India¹⁰⁰, P. Sambamurthy v. State of A.P.¹⁰¹, Kihoto Hollohan v. Zachillhu¹⁰², Raghunathrao Ganpatrao v. Union of India¹⁰³, L. Chandra Kumar v. Union of India¹⁰⁴, Supreme Court Advocates-on-Record Assn. v. Union of India¹⁰⁵ and many other such judgments were discussed to infer that there is no fixed formula for determining whether a constitutional amendment violates the basic structure or not. Further, discussing the topic of economic disabilities and affirmative action, the Court observed that economic and social inequalities form part of a real and substantive problem, that a mere formal action for equality cannot deal with. The Court further observed that the US Supreme Court has also made some strides to ensure that economic considerations are considered, due to which economic backwardness becomes a ground for providing reservation. The Court observed that Article 14 and the concept of equality in India follow a similar principle as well.

Addressing the concerns surrounding the sole criterion of economic backwardness being violative of the basic structure of the Constitution, HMJ Maheswari observed while relying on judgments of M.R. Balaji v. State of Mysore¹⁰⁶, R. Chitralekha v. State of Mysore¹⁰⁷, Janki Prasad Parimoo v. State of J&K¹⁰⁸, State of Kerala v. N.M. Thomas¹⁰⁹ and other such judgments, stated that the argument, while the State is free to adopt any measure to alleviate the economic backwardness, at the same time, State cannot make provisions for affirmative action on the reservation as it can only do so for SEBCs/OBCs/SCs/STs is invalid and suffers from grave incompatibility with our constitutional scheme. Thus, it was observed that there is a reasonable classification between the “other weaker sections” and “economically weaker sections” thereby holding that the constitutional amendment under challenge is not violative of the basic structure and that classes already receiving the benefit under Articles 15(4), 15(5) and 16(4) would not be entitled to this reservation as it would open the floodgates to whole other issues of unconstitutional and invalid situations.

Discussing the impact of the constitutional amendment on the 50% ceiling of reservations and the basic structure, the Court referred to the following judgments in M.R. Balaji v. State of Mysore¹¹⁰, T. Devadasan v. Union of India¹¹¹, Akhil Bharatiya Soshit Karamchari Sangh v. Union of India,¹¹² M. Nagaraj v. Union of India¹¹³ and many others, observing that while 50% is the desirable ceiling limit in matters of education and public employment, it is not inflexible and inviolable at all times, in light of the affirmative action taken against harm done due to preferential treatment qua other innocent class of competitors.

Justice Maheshwari speaking for the majority concluded by observing:

“Reservations for EWS of citizens up to 10% in addition to the existing reservations does not result in violation of any essential feature of the Constitution and does not cause any damage to the basic structure of the Constitution of India on account of breach of the ceiling limit of 50% because, that ceiling limit itself is not inflexible and in any case applies only to the reservations envisioned by Articles 15(4), 15(5) and 16(4) of the Constitution of India.”(Para 233).

HMJ Bela M. Trivedi (concurring opinion) observed that differential treatment is not violative of the concept of equality, however, unjustified distinction/classification is violative of the concept of equality. Referring to the judgments of Ashoka Kumar Thakur¹¹⁴, State of Kerala v. N.M. Thomas¹¹⁵, it was held that reasonable classification is vital to the concept of equality and that such a classification permeates the distinction between vertical and horizontal classification. The EWS reservation is its own vertical classification, while the other reservations as provided under Articles 15 and 16 are vertical as well, though this would mean that a particular class of people belonging to a vertical reservation classification cannot take benefit of the other vertical classification. Thus, agreeing with the majority reasoning of Justice Maheswari, Justice Trivedi stated that the exclusion of other classes from the 103rd Constitutional Amendment is not violative of the basic structure since it creates a separate class with a reasonable nexus to the object sought i.e. “economically weaker sections” seeking EWS reservation which does not impede or overlap the other reservations provided for other classes under Articles 15(4), 15(5) and 16(4). Justice Bela M. Trivedi referred to K.C. Vasanth Kumar v. State of Karnataka¹¹⁶ in this regard and observed that reservation must have a time span; however, after 75 years of independence, it is imperative that we revisit the whole system of reservation in the larger interests of the society.

Justice Bela M. Trivedi thus concluded by observing:

“The SC, ST, and the backward class for whom the special provisions have already been provided in Articles 15(4), 15(5) and 16(4) form a separate category as distinguished from the general or unreserved category. They cannot be treated at par with the citizens belonging to the general or unreserved category. The 103rd amendment creates a separate class of ‘economically weaker sections of the citizens’ from the general/unreserved class, without affecting the special rights of reservations provided to the SC, ST, and backward class of citizens covered under Articles 15(4), 15(5) and 16(4). Therefore, their exclusion from the newly created class for the benefit of the ‘economically weaker sections of the citizens’ in the impugned amendment cannot be said to be discriminatory or violative of the equality code. Such amendment could certainly be not termed as shocking, unconscionable, or unscrupulous travesty of the quintessence of equal justice as sought to be submitted by the learned counsels for the petitioners.” (Para 257)

HMJ J.B. Pardiwala concurring with the judgment of Justice Maheswari stated that while classification under Constitution is permissible, it has to be based on certain factors as envisaged under Articles 15 and 16. Referring to the judgments of State of Madras v. Champakam Dorairajan¹¹⁷ and Kathi Raning Rawat v. State of Saurashtra¹¹⁸, it was held that if State wanted to take affirmative action with respect to classes mentioned in Article 15(4), such an action cannot always be challenged under Article 15(1) of the Constitution.

Further referring to Constitution Bench judgment of Pramati Educational and Cultural Trust v. Union of India,¹¹⁹ wherein the Court held that the 93rd Constitutional Amendment inserting clause (5) of Article 15 of the Constitution is not violative of the basic structure of the Constitution Justice Pardiwala held that Article 15(6) cannot be held as unconstitutional since it also does not alter the basic structure of the Constitution. Justice Pardiwala further expounded on the aspects of constitutional interpretation; referred to the American Supreme Court judgment of United States v. Classic¹²⁰ and stated that while interpreting the Constitution, it is imperative that certain other social considerations are to be taken into account when interpreting the Constitution.

Justice J.B. Pardiwala in his concurring opinion with Justice Maheshwari opined that:

“103rd Amendment signifies the Parliament’s intention to expand affirmative action to hitherto untouched groups — who suffer from similar disadvantages as the OBCs competing for opportunities. If economic advance can be accepted to negate certain social disadvantages for the OBCs (creamy layer concept) the converse would be equally relevant. At least for considering the competing disadvantages of EWS.” (Para 336).

He also believed that reservation for certain weaker sections other than SCs/STs and socially and educationally backward classes. He was of the view that the amendment in question was meant for economically weaker sections who are unable to afford basic education for their children or unable to secure employment in the services of the State. (Para 348)

HMJ S. Ravindra Bhat dissenting from the majority opinion held against the validity of the 103rd Constitutional Amendment. According to Justice Bhat, while the addition or insertion of an “economic criterion” furthering the objective of Article 46 is not per se unconstitutional or invalid, it is the manner of its implementation that has proved to be questionable. Exclusive exclusion of classes covered under Articles 15(4) and 16(4) from EWS reservation violates the basic structure of the Indian Constitution and the fundamental rights of the classes so concerned. Referring to judgments such as the National Legal Services Authority v. Union of India¹²¹, Indian Young Lawyers Assn. v. State of Kerala¹²², and Charu Khurana v. Union of India¹²³, it was held that none of the materials that were placed on record showed any reasonable explanation as to why SCs/STs/OBCs are being excluded from the 103rd Constitutional Amendment. According to Justice Bhat, it is unreasonable to exclude 82% of the country’s population from the scope of the amendment to further advance the object of economically weaker sections of the society. Thus, the poorest of people (tribals) would also be exempted from an amendment meant for the economically weaker sections. Justice Bhat however agreed that classification based on “economic criteria” is permissible under Article 15, however the same is not true for Article 16. It was held that economic emancipation is an objective and purpose that is enshrined in our Constitution in Articles 38, 46, and even the Preamble. Ensuring economic well-being and economic justice to everyone through amendments shines a new light on the concept of upliftment of economically backward/weaker sections of society.

Justice Bhat further held that Article 16(4) is there to ensure that there is equality in opportunities in public employment however, there is no way of knowing if the “economically weaker sections” of the society belong to a “forward” class or caste which already enjoys the benefit of not being classified as “socially backward”. Thus, the constitutional amendment violates the basic principle of equality of opportunity in public employment under Article 161(1).

Justice Bhat penned the dissenting opinion operatively as follows:

“‘Economic factors’ are appropriate for the purposes of Article 16 (reservation in public employment). He stressed that it was specifically stated in Indra Sawhney¹²⁴ that reservations cannot be issued merely on the basis of economic concerns.”

According to Justice Bhat, the basis for the reservation imposed in accordance with Article 16(4) is “adequate representation”. The economically disadvantaged sections are not qualified for the reservation sought under Article 16, since they do not lack representation. Granting reservations to a section that is not socially backward and whose community is represented in public employment would be in violation of the Preamble and Article 16(1). Justice Bhat further referred to o the National Crime Records Bureau Report titled “Crime in India 2021” and the Sinho Commission Report to back up the claim that the poorest of the poor are being denied the benefits of reservation under the said amendment. Further, on the issue of 50% cap for reservation, it was observed that the decision of this Court in this particular judgment might have a bearing on the pending litigation in the matter of the 76th Constitutional Amendment 1994. There might be a negative effect on the said pending litigation viz. the parties might not be heard accordingly. It is also observed that such compartmentalisation of the percentage cap on the reservation might create issues in the future, which stem from providing 10% reservation over and above the 50% cap. However, Justice Bhat left this question open for answering.

The verdict was rendered with a majority of 3:2. This ruling has removed all restrictions and increased the scope for constitutional interpretation, sustaining the 10% EWS quota reservation. As society develops, social and economic norms also change over time. Flexibility is essential to fostering adaptation to changing circumstances and providing various opportunities to all social strata. With this decision, the Supreme Court has gone beyond its original guidelines, overturning the ceiling limit, and allowing for a more liberal interpretation, stating that adding 10% to the existing reservations of a different nature does not violate any fundamental feature of the Constitution or harm its basic structure.

Brief points of majority opinion

1. On the point of basic structure, the Court highlighted that the provisions for providing reservation to the weaker section by way of affirmative action do not form a part of the basic feature of the Constitution, as it is merely enabling in nature.

2. On the point of exclusion of SCs/STs/OBCs/SEBCs, Court opined that the exclusion of other classes in the EWS reservation is not an abrogation of the basic structure and the fundamental rights of the weaker section of society. Since SCs/STs/OBCs/SEBCs are already getting the benefit of affirmative action under the Articles 15(4), 15(5), and 16(4).

3. EWS reservation does not impact the benefit already accorded to the socially and educationally backward classes, as it does not encroach upon their ambit of quota provided to them.

4. On the point of economic criteria as the sole criterion of deciding for reservation, State is empowered to make provisions for the economically disadvantaged section of the society under Articles 38 and 46 of Part IV of the Constitution. Restricting affirmative action to SCs/STs/OBCs/SEBCs would defeat the purpose of the concept of substantive justice as espoused in the Constitution.

5. On the point of the 50% ceiling limit on reservations, the Court took the stance that the 50% reservation is not inviolable. The limit could be breached in extraordinary situations. The basis of this 50% ceiling limit is that reservation should not be such that it adversely affects another section of society.

Brief points of minority opinion

HMJ Ravindra Bhat collectively held that the 103rd amendment is violative of the basic structure of the constitution on the following grounds:

1. The exclusion of SCs/STs/OBCs/SEBCs is against the equality code which is essential to the nature of the Constitution. Such an exclusion is furtherance of discrimination against historically disadvantaged and deprived communities.

2. Economic factors cannot be the sole criteria for giving reservations therefore, it is not appropriate for the purposes of Article 16(1) which deals with reservation in public employment.

3. There is a considerable body of past judgments enunciating the principle that any exclusionary basis should be rational, and non-discriminatory.

4. The basis of classification in the impugned amendment, enacted in furtherance of Article 46 is economic deprivation. Applying that criterion, it is either income, or landholding, or value of assets or the extent of resources controlled, which are classifiers thus, social origins or identities of the target group are irrelevant.

5. The question pertaining to the 50% cap/limit on the reservation is left open since there can be negative repercussions of this judgment on the pending litigation in the matter of the 76th Amendment 1994.

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