PRESIDENT RULE UNDER ARTICLE 356: RETAIN OR REPEAL (MAHARASHTRA DEVELOPMENTS)

 

Should President rule be imposed in Maharashtra 

Anurag deep

Associate Professor

The Indian Law Institute, New Delhi

 

Kangana Ranaut incident

In Maharashtra there is demand to impose President rule which has gathered momentum after the Bombay Municipal Corporation (BMC) has demolished a part of the office of Kangana Ranaut, an Indian actress on sept 9, 2020. She commented on the functioning of the Maharashtra government on Sushant Singh Rajput suicide case. The twitter war between her and Shiv Sena leaders turned into abusive exchanges and inappropriate expressions. The Shiv Sena/Congress are in power and they could not tolerate the voice of Kangana Ranaut. To teach her a lesson and silence her voice the govt misused legal machinery, ie BMC which has tried to complete the process of natural justice (giving notice) in haste and demolished a part of office with rocket speed, that too when the writ was pending before the court and the proceeding was going on Sept 9, 2020. It is rightly said that जब नाश मनुज पर छाता है, पहले विवेक मर जाता  है. The HC on Sept 9, 2020 has termed the demolition of Kangna property as prima facie mala fide and issued an interim stay. This approach of Maharashtra govt was against all element of rule of law. Rule of law is the basis of the constitution. If rule of law is violated the constitution is also breached. Shiv Sena leaders have also threatened Kangana not to come to Mumbai. This was against the fundamental right of a citizen under article 19 (d) where every citizen has right “to move freely throughout the territory of India.” Moreover she is a resident of Mumbai. Mere case of Kangana Ranaut indicates violation of article 14 (arbitrariness), art 19 (freedom of speech, expression and movement) and art 21 (due process). Maharashtra government is being criticized for not focusing on Covid19 but on other political issues. Shiv Sena goons are also found involved in beating common citizen, veteran army person on VDO, though the goons have been arrested. There was lynching of two saints in Maharashtra. Multiple FIRs are registered against media persons like Arnab Goswami. He and his wife were also attacked.

In the light of this, members of political parties, Governor of Maharashtra, some columnists, intellectuals have started exploring the possibilities of the President rule in Maharashtra under article 356. Despite these incidents, time is not ripe for article 356.

Not a case for Art 356

Art 356 needs breakdown of constitutional machinery. Break down is different from law and order problem. It is also different from stray abuse of power by Govt. Kangana Ranaut case is shameful abuse of legal process to intimidate some one who expresses against the government. Similarly other incidents indicate the weakness of the govt on the front of law and order or public order. It is failure of governance but it is still not breakdown of constitutional machinery. The situation under art 356 needs more serious conditions because a democratically elected govt cannot be dismissed on law and order problem even if it is serious some time.  

The legal course open to the central govt is that it may issue a warning to Maharashtra govt, if it feels the things are going beyond control. Under article 355 “it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.” Under article 365 it is stated that 365. “Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.” If the Maharashtra govt fails to address the concern of the central government, this can be a ground for article 356. Otherwise, the State govt commands the confidence of the house. It is yet to be established that the State govt is deliberately involved in illegal activity though there are violations of rule of law. Rule of law is a part of basic feature of the constitution. More such violations on consistent basis will attract art 356.

The SC check through Bommai and other precedents

The central govt is also aware that in 1994 in SR Bommai case the SC has held that art 356 is the last measure. The action of central govt can be challenged and the central govt will be required to establish that there was no other alternative. Central govt is also aware of what happened in Arunachal Pradesh and Uttarakhand case.

On July 13 2016 a constitution bench of the Supreme Court has declared the President rule imposed in Arunachal Pradesh as unconstitutional. It has restored the previous Congress government. In Uttarakhand also Harish Rawat government was restored few months before Arunachal judgement. These incidents and decisions often reignite the debate on the retention of article 356 in a federal set up.  

When can article 356 be applicable 

कब ३५६ लागू हो सकता है --

१. Political crisis-राजनैतिक संकट --

अ. The CM has no confidence of the house. दल या नेता को बहुमत का समर्थन नहीं प्राप्त है, या उसे खो दिया है, (केवल इसकी संभावना मात्र से ३५६ लागू नहीं कर सकते, बहुमत नहीं है यह सदन के पटल पर स्थापित होना चाहिये No confidence shall be proved only on the floor of the house). 

 

आ. Post election, the government cannot be formed. चुनाव के बाद सरकार का गठन नहीं हो पा रहा है, क्योंकि त्रिशंकु विधानसभा बनी है या एनी गतिरोध है 

२. Government either engaged in anti national activity or fails to stop the activities सरकार राष्ट्र विरोधी कार्य में लगी है या उनके खिलाफ समुचित कदम नहीं उठा रही है 

३. The government is supporting unlawful activity or the administrative machinery is being used to some how support it. सरकार की पूरी प्रणाली अवैध कार्यों में लगी है या उसे लगातार प्रत्यक्ष समर्थन दे रही है,  प्रणाली का खुल कर दुरुपयोग हो रहा है, या उसे रोकने के लिए समुचित कदम नहीं उठा रही है. पंथनिरपेक्षता के विरुद्ध काम कर रही है, जैसे -१९९२ में अयोध्या में विवादित ढांचे के विध्वंस के क्रम में भाजपा की सरकारों को बर्खास्त कर दिया गया था. 

४. The State government declines to implement central laws or executive direction validly given under article 255/365. केंद्र के क़ानूनों को, उसके  विधिक निर्देशों को मानने से मना कर रही है, जैसे अन्वेषण संस्था सीबीआई, एन आई ए को सहयोग नहीं कर रही या अनुच्छेद  २५५, ३६५ के निर्देशों को नहीं मान रही 

५. The orders of the court are not followed deliberately on consistent basis न्यायालय के निर्देश नहीं जान बूझकर नहीं मान रही 

६. etc आदि 

The constituent assembly wanted article 356 as ded letter box. But it was misused like anything. However after SR Bommai judgement followed by other precedents article 356 seems to be in sleep mode. संविधान सभा में ३५६ को टेड मैटर बॉक्स जैसा कहा गया था.

Desirability of art 356

In a federal democracy such provision prima facie raises various questions. That too when the framers of the Constitution of India after studying all the known constitutions of the world and after many marathon discussions reached to the conclusion that India must not be a unitary state but a federal State (ie. power shall be distributed between Centre and State).  The cultural historical, geographical and political reasons played key role in reaching to this conclusion.  But, there were certain causes and circumstances which compelled the constitutional experts to think and decide whether the unitary system (where there is one power center) should be totally avoided?  They could not make up their mind in affirmative and the majority was of the opinion that any federal system especially India cann’t neglect all the characteristics of a unitary state. Emergency provisions in the constitution of India which gives sweeping power to center over state should be understood in that context.

Background of 356

When the Constituent Assembly commenced its deliberations (9^th December, 1946) on a written constitution for India, it was a period of great political upheaval. India was passing through a deep and unforgettably shocking experience of at least three incidents. One, partition, carnage and destruction of people as well as property; Two, the persistence of some erstwhile rulers of Indian states to remain outside the union (India)and to fight for their independence. Third incident is less known which can be found in the work of Fali S. Nariman, “ Protection of Human Rights during emergencies, The Review, International Commission of Jurist. N56/1996, P-3. He quotes the assassination of U Aung San and most of his cabinet colleagues in neighbouring Burma(now Mayanmar) in July 1947.  This hydraulic pressure of significant events had their effect. They greatly influenced the draftsmen of the constitution of India; to structure the basic document so as to provide the strong centre armed with special powers. Part XVIII “Emergency provisions: Art 352 to 360 was incorporated with this idea, of which Art 356 is most disputed one. Other three compelling factors which also gave force to the incorporation of Art 356 were the past experience in the U.S. A (viz Pullman Strike case (1894). Due to strike by labours in the State of Illinois railway lines were jam. Cleveland,  the President of the USA sent federal troops ‘against the will and without consent’ of the Governor of Illinois State. In a challenged before the US Supreme Court, one of the arguments was the federal government has no authority to encroach the jurisdiction of State government in a federal system.  The US Supreme Court in the case of Re Debs (1895), however rejected this argument and decided in favour of federal government. Framers of the constitution of India were aware that similar exceptional situations might arise in India. And central government must be constitutionality and expressly empowered to face those exceptional situations. Second reason was the fact that in 1950 ‘democratic rule based on adult franchise was being introduced for first time.  Almost one-third of the country under princely rule had never known elections.  Rule of law was a novelty in those areas.  The infant democracy required careful nurturing. Many a hiccup was expected in the days to come.’  This perhaps explain the need for a provision like the one in Art 356 that time. Lastly the diversity in India and the strong passion and obsession of people for their sect, language, cast, religion, or region etc could not be overlooked. These were the major factors which helped in the incorporation of Art 356 under which President’s rule can be imposed in any state. The executive and legislative powers of the state is assumed by the Central government and the Parliament in the event of breakdown of the constitutional machinery in the concerned state.

Change in Background

Now the back ground is changed. We have almost forgotten the unfortunate incidents of partition. Electoral democracy is very matured, thanks to election commission and electronic media. Post 1993 we have now four tier system of elections with huge increase in voting percentage. Post Bommai(1994), Rameshwar Prasad(2005), and Arunachal Pradesh case(2016) it is not an easy task for party in power to impose president rule. There are chances that article 356 may go at least in ‘sleep mode’ if not in ‘dead letter’ box. Therefore, the demand that article 356 should be deleted from the constitution. The supporters of federal principles forget that though situations have changed, new situations have arisen. In our country there are at least three States (Punjab, Jammu and Kashmir and Tamil Nadu) which passed almost unanimous resolution in favour of convicted terrorists. A few powerful political parties have shown sympathy for separatist organisations. For States some time, the narrow regional interest is more important than national interest. State titans some time foment fissiparous  tendencies on the basis of language, region, caste etc. These      are   anti-national   and   anti-democratic tendencies. If any  State  will  be engaged in  exciting emotion  on these grounds, ‘such provocation has to be           nipped in  the    bud’.  Therefore Dr Ambedkar always wanted a strong center. In a recent case of Union of India V Sriharan @ Murugan (decided on 2 December, 2015), the constitution bench has also reiterated that the original intent of the constitution is to give greater say to central government. Due to coalition politics the central government, most of the time, is dependent of regional titans, who are more concerned to their electoral issues even at the cost of national interest. Coalition, three constitution bench judgements referred above, more active judiciary, vibrant media and more effective civil society, therefore, are sufficient checks on the abuse of president rule.

The office of the President should also be more assertive to exercise their power under article 74(1) proviso where ‘President may require the Council of Ministers to reconsider such advice’. As the likelihood of misuse of article 356 is reduced to considerable extent, it should be retained to deal with exceptional situations. Ultimately our constitution is not federal in traditional sense but it is a Uni-federal constitution, ie a federal constitution with leading unitary features to suit exceptional situations. 

In case of Maharashtra the risk reward ratio to impose president rule does not favour the central govt. 

 

 One can see a discussion in Hindi here --

 https://www.youtube.com/watch?v=C5tDOHCU2dQ&feature=youtu.be

राष्ट्रीय (नई) शिक्षा नीति 2020 NATIONAL (NEW) EDUCATION POLICY 2020

 उच्च शिक्षण संस्थाएं न केवल ज्ञान के मंदिर हैं अपितु वे न्याय के अन्वेषण, अध्ययन और क्रियान्वयन की प्रयोगशाला भी हैं, जहाँ शैक्षिणिक न्याय प्रदान किया जाता है. सत्य असत्य की पहचान, नैतिक अनैतिक का परिचय, गलत सही का बोध, अधिकार और कर्तव्य की जानकारी, शिक्षक अपनी कक्षा में और अपने आचरण से देता है.

शिक्षण संस्थाओं से जुड़े लोग शिक्षा धर्म का पालन करते है. जैसे आग का धर्म है जलना और पानी का धर्म है शीतलता प्रदान करना वैसे ही शिक्षक का धर्म है शिक्षा देना, विद्यार्थी का धर्म है शिक्षा ग्रहण करना और इससे जुड़े लोग जैसे गैर शिक्षण कर्मचारी बंधु, अन्य शैक्षणिक अधिकारियों  का धर्म है इस आदान प्रदान में सहयोग करना. इस प्रकार शिक्षण संस्थाएं विशेषकर महाविद्यालय और विश्वविद्यालय ज्ञान, न्याय और धर्म तीनों का एक संगम निर्मित करते हैं. शासन और उसकी इकाइयों का धर्म है इस पूरे संव्यवहार के लिए  कानूनी आधार, उचित संरचना, उत्साहजनक  माहौल, उपयुक्त आर्थिक सम्बल और प्रभावी संवाद स्थापित करना.

नई शिक्षा नीति इसी शिक्षा धर्म के पालन का एक आवश्यक कदम है. यह ज्ञान, न्याय और धर्म की इस त्रिवेणी को स्वीकार करती है. यह शिक्षा संस्थानों और अध्यापकों को ज्यादा स्वायत्ता दे उसे  सशक्त करती है , आर्थिक दृष्टि से ज्यादा संपन्न बनाने का प्रस्ताव करती है, और प्रयोगमूलक बनाती है. इस कारण अनेक विद्वानों और शीर्षस्थ टिपण्णीकारों का भी यह मानना है कि  नई  शिक्षा नीति  भारत की युवा ऊर्जा को नवीन आयाम देगी, समृद्ध बौद्धिक सम्पदा और सांस्कृतिक  विरासत की वाहक बनेगी।  यह एक ओर ग्रामीण जगत की आवश्यकता को आत्मसात करेगी तो दूसरी ओर यह नीति विश्व पटल पर भारत को एक वृहद्  शिक्षा आंदोलन का प्रणेता बनाने की क्षमता  रखती है, जिसका लाभ विकसित और विकासशील दोनों देशों को मिलेगा.

NATIONAL EDUCATION POLICY AND LANGUAGE

NAVTEJ SINGH JAUHAR V. UNION OF INDIA(2018) : TWO YEARS OF HOMOSEXUALITY JUDGEMEMT

 

  Possible Impact of Navtej Singh Jauhar v. Union of India(Sept 6, 2018) [(2018) 1 SCC 791]:[1]A Futuristic Analysis

Anurag Deep, LLM (BHU) PhD (Gorakhpur)

Associate Professor, The Indian law Institute 

Democracy does not mean rule by majority only. While elections based on vote shares is an essential tool to decide who will move the chariot of a democratic country, democracy based on constitutionalism is judged by the enforcement of democratic values of equality, liberty and dignity of “we the people” and not “we the majority.”   These values enshrined in the preamble of the Constitution of India are not only educative or persuasive in nature but also decisive for present and future of India some time. People who display alleged deviant behaviour cannot be deprived of dignity.

Navtej Singh Johar case (popularly called as 377 or LGBT or homosexuality judgement) reflects the decisive dominance of constitutional values over intentions of the majority. Section 377 of the Indian Penal Code, 1860 criminalised “carnal intercourse against the order of nature with any man, woman or animal” irrespective of the conduct being consensual or non consensual, among adults or non adults and in private or in public. The constitutional validity of a part of this provision which made consensual sex under section 377 penal was challenged before the Delhi high court mainly by LGBT community in the case of Naz Foundation v. Government of NCT of Delhi.[2] The Division Bench led by AP Shah, J. (with S Murlidhar) declared the consensual part of section 377 as partially unconstitutional and violative of article 14, 15 and 21. The high court judgement was challenged before a Division Bench of the Supreme Court in the case of Suresh Kumar Koushal  v. Naz Foundation,[3] where the high court verdict was set aside. A review petition was also filed before the Supreme Court which was rejected. Then a curative petition was filed which was finally heard by a Constitution Bench in the case of Navtej Singh Jauhar. In a unanimous verdict, section 377 of IPC was partially declared as unconstitutional for violation of article 14, 15, 19 and 21. Suresh Kumar Koushal was overruled and Naz Foundation was restored. The judgement was unanimous where Deepak Misra, CJ (with A.M. Khanwilkar, J.), delivered the lead opinion to which RF Nariman, DY Chandrachud, Indu Malhotra, JJ. concurred in their a four separate opinion. 

 Consequently, alleged ‘unnatural sex’ between male to male, female to female and male to female has been decriminalized provided the conduct qualifies three elements; if it is between adults; it is voluntary and if it is in private. In other words, actus reus of unnatural sex is recognised as criminal in three situations, (i) any sexual conduct described under section 377 between non-adults (below the age of 18 years) even if it is voluntary and consensual, [maturity rule] (ii) If such conducts are forceful, non-consensual, or involuntary; they are still penal, [harm rule] (iii) Any sexual conduct with animal is still penal even if an adult is involved in it, [manifestly unnatural rule] 

The judgement of the Supreme Court received mixed reactions. While LGBTQ community was elated, intellectuals in general and media have hailed the decision as the restoration of democratic values. Legal community is sharply divided. Many politicians are generally neutral. Most of the religious leaders and those who feel very passionate for traditions and culture are disappointed by the judgement. There is a feeling that the Supreme Court has imported the western idea of liberty and sexual autonomy in Indian jurisdiction, which is not suitable for this country. This author has interacted with many critics of the judgement and found that most of the criticism is because of ignorance as to natural sexual orientation. Many among us used to believe that homosexual relationship was a departure from normal human conduct which was controllable like conspiracy, theft, or bigamy. We wrongly believed that any sexual attraction between same sexes is unnatural and is product of some devils desire while science established long back that there is no un-naturality in an attraction towards same sex. Most of us wrongly presumed that same sex attraction is a disease which can be cured or is something out of choice which can be checked by inflicting pain. Therefore, they rush to an incorrect inference that medical and legal measures are essential remedy. Since 1860 we religiously followed an uninformed hypothetical misplaced moral norm and supported criminalisation with closed eyes. That is why Nariman, J. In Navtej Singh Jauhar rightly directed the government to give wide publicity of the judgement so that the cloud of ignorance and wrong believes be removed as early as possible. I have doubts if the government has discharged this obligation of wide publicity because I have not seen enough government advertisement on media channels or hardly received any sms in my cell phone nor my friends have experienced differently.   

Possible impact of the decision may be manifolds. A few hypothetical cases may be taken as illustrations.

(I) H1 and H2 are Hindu male. They want to marry. They go to a temple with friends. The pandit declines marriage on the ground that Hindu marriage is a sacrament. Customary and traditional Hindu law permits marriage between two opposite sex only. Moreover, section 5(iii) of the Hindu Marriage Act, 1955 states that “ the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage.” Bridegroom necessarily indicates a male and bride necessarily indicate a female. Therefore, neither custom, nor statute allows him to solemnize any marriage between same sexes. Aggrieved by such denial, H1 approaches the high court under article 226 for necessary directions or writ. H2 approaches the Supreme Court under article 32. They argue that pandit is duty bound to solemnize marriage and a writ of mandamus be issued. They also argue that this duty of pandit is a mandatory public duty. A pandit cannot deny this public function on the ground that both parties are of same sex. The Hindu Marriage Act, 1955 does not use the word male or female. They are also not covered under prohibited degrees or sapindas. They also move a contempt petition against pandit for willful disobedience and virtual denial of Navtej Singh Jauhar judgement. They also challenge the constitutional validity of section 5(iii) of the Hindu Marriage Act, 1955. They request the constitutional courts to read down section 5(iii) so that bridegroom or bride covers person of same sex also. Literal or dictionary meaning will negate the judgement. Therefore, new and liberal interpretation is required to give effect of the (377) judgement.

(II) H3 and H4 are female. They apply to get their marriage contracted under the Special Marriage Act, 1954. The concerned officer rejected their application referring section 4(c). According to this section, one of the necessary conditions is that “the male has completed the age of twenty-one years and the female the age of eighteen years.” H3 and H4 approach the Supreme Court under article 32 of the Constitution of India. They challenge the constitutional validity of section 4(c) of Special Marriage Act, 1954. They argue that this provision goes against the Constitution Bench judgement of Navtej Singh Jauhar as well as NALSA. NALSA has already recognised a third category. The provision violates articles 14, 15(1), 19 (1)(a) and 21. 

(III) Suppose H1 and H2 ( both males) gets married by pandit with Hindu rituals and saptpadi. After two month of marriage, H1 dies with self acquired properties. H2 applies for succession certificate. The authorities refuse granting a succession certificate because H2 is not female and not wife. The validity of the refusal order and related provision is challenged.

(IV) Suppose H1 and H2 (both males) after getting married want to purchase a property in the name of H2. H1 and H2 claim concession in registration of sale deed. Such concession in registration is available to female members of family. Registry department refuses to grant concession because H2 is not a female. H1 and H2 challenge the validity of the refusal order and related provision.

(V) H3 and H4 are female. They want to purchase a property in a residential society. The property owner refuses to sell because the owner does not want to sell property to a homosexual. H3 and H4 approach the police or District Magistrate. The owner states that he cannot sell the property because they are homosexuals. They also approach courts under article 226 and 32 for suitable remedy.    

(VI) H3 and H4 are female and are homosexual. They work in a shop. After three months, the owner discovers that H3 and H4 are homosexuals. The owner tells them to leave the job because they are homosexuals. What are the remedies available to them? Similarly, if H3 and H4 are tenant. After three months the owner asks them to vacate the flat as the room cannot be given to a homosexual. Is there any remedy available to them? 

(VII) H5 (a transgender who recognises herself as woman) alleges that A1 passes lewd remark against her, tries to touch inappropriately. A1 tries to “outrage her modesty.” H5 approaches a police station. The police says that section 354 of IPC is a gender specific provision and is applicable only when the victim is a woman. A1 is not a female but a third gender. Therefore a case under section 354 cannot be instituted. The police further state that section 354A of Indian Penal Code, though gender neutral, is intended for the same i.e. to use when the victim is a woman.[4] However, the High Court of Delhi has read the provision literally and on face value. They directed that police can proceed because section 354A is gender neutral.[5] Police has directed to lodge a case under section 354A. H5 also expressed the desire not to proceed further because her demand to lodge a case was fulfilled. Suppose H5 insists that the case be also instituted under section 354 because she is a woman or section 354 ought to be read into to incorporate third gender like me also.       

The executives and the courts will have to face similar situations for which positive steps need to be taken with liberal mind. Courts would be required to issue protection orders in some cases. Some of these may be easy to decide like, contempt or direction against Pundit (first hypothetical illustration)  but others would be hard cases. The Parliament needs to make suitable amendments to give consequential effect to 377 judgements. If such cases entreat for the jurisdiction of constitutional courts, the courts should not hesitate passing orders under article 226 or article 32/142 of the Constitution of India. A small but significant development is the Transgender Persons (Protection of Rights) Act, 2019 which was passed by the Parliament. Section 3(e) of the Transgender Act expressly prohibits “denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public.” Section 3(g) further prohibits “the denial or discontinuation of, or unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property.” Section 18 (c) punishes anyone who “forces or causes a transgender person to leave household, village or other place of residence.” We need similar measures to be incorporated expressly for homosexuals.

 

---

[1] (2018) 1 SCC 791.

[2]  2009 SCCOnline Del 1762.

[3] (2014) 1 SCC 1.

[4] See, news item dated Dec 6, 2018,Available at : https://indianexpress.com/article/india/transgender-student-alleges-police-did-not-accept-her-complaint-moves-hc-over-sexual-harassment-5482281/, (last visited on Feb 11, 2019).

[5] See, news item dated Dec 21, 2018, available at https://indianexpress.com/article/delhi/police-cant-turn-away-transgender-persons-alleging-sexual-harassment-du-student-delhi-high-court-5503020/, (last visited on Feb 11, 2019).

Adv PRASHANT BHUSHAN CONVICTION/ PUNISHMENT for contempt https://youtu.be/dRNui22_KzI

प्रशांत भूषण को अवमानना मामले में 1 रुपये की सजा - क्या इससे भूषण शहीद बनेंगे?

MUSLIM WOMEN’S RIGHTS DAY AND INSTANT TRIPLE TALAQ ACT,2019 : IS THE LAW OVER-CRIMINALISED?

Happy Birth Day "Instant Triple Talaq Act,2019"

1. Introduction

The Government of India has celebrated August 1, 2020 as “Muslim Women’s Rights Day” because the MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019 (also called as instant triple talaq Act) was passed and published in Gazette on July 31, 2019.  It was one year. The government was celebrating the first birthday of the Act. They also claimed that the instant triple talaq Act had great impact and cases of instant triple talaq is reduced substantially. The government of india pointed out that “One year has passed since the law against triple talaq was passed and there is a decline of about 82 per cent in such cases thereafter. If any such case was reported, the law had taken action,” It was also claimed that “Muslim women from Uttam Nagar and Batla House in New Delhi; Greater Noida, Lucknow and Varanasi in Uttar Pradesh; Jaipur in Rajasthan; Mumbai in Maharashtra, Bhopal in Madhya Pradesh, Krishnagiri in Tamil Nadu; and Hyderabad participated in the conference.” ( see one report here https://www.thehindu.com/news/national/law-against-triple-talaq-strengthened-self-reliance-among-muslim-women-naqvi/article32237825.ece#:~:text=%E2%80%9CAugust%201%20is%20a%20day,parliamentary%20history%2C%E2%80%9D%20he%20observed.) One can see news papers stories in local news papers where muslim women (mostly victims of instant triple talaq ) have expressed their satisfaction and pleasure on the impact of law. This statement of the government regarding impact of instant triple talaq law has not been denied or refuted by any significant reports. 

2. The background

Instant triple talaq was/is a practice where some muslim husbands used to pronounce instant triple talaq to divorce their wife. No reason or ground was required to be given. No time was required to be given to the wife. Any mode could be used like on phone, on whats app, on e-mails, letters etc. It remained unchecked and muslim intellectuals, personal law board, the legislature etc all remained silent to the plight of muslim ladies. In the case of SHAYARA BANO v. UNION OF INDIA, AIR 2017 SC 4609 the Constitution Bench by ratio of 3:2 declared the conduct of pronouncement of instant triple talaq as void and invalid. The Supreme Court did not declare any custom as invalid. Two of the majority of the judges interpreted section 2 of the MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937. This provision contains “talaq”. Among the majority of three judges, two of the judges of the Supreme Court of India declared this part of the provision (section 2) as arbitrary and violative of article 14 of the constitution of india. One judge declared it invalid. The two minority judges did not declare it invalid but held that the conduct was sinful and requested the Parliament to pass a law. In substance all judges held that the law is undesirable and needs change. The Parliament passed a law. They declared the conduct as unlawful and criminalised the conduct. On the issue of criminalisation there was resistance. The resistance still continues to some degree. The government celebration of the Instant triple talaq Act has been criticised.  https://www.livelaw.in/columns/muslim-women-protection-of-rights-on-marriage-act-2019-untested-questioning-protection-of-whom-160876?infinitescroll=1

Most of the arguments against criminalisation of instant triple talaq are recycled version of contentions made previously and rejected by the Parliament. A few of such argument is being analysed here ---    

1. Why criminalise instant triple talaq --In the case of Shayara Bano, the Supreme court desired that a law be passed to check instant triple talaq. The Court never desired that a penal law be passed. Both statements are correct. But desirability of criminalisation of a conduct is a policy decision. Should the Parliament wait for a direction by the Court, if in its wisdom it feels that criminalisation of conduct will be an effective remedy?  

2. Second point for me is the objection that there was no consultation with stakeholders before passing the instant triple talaq law. Who are stakeholders? Muslim personal Law Board says they are stake holders? Are the? Have we read the affidavit of MPLB? It is so too disgusting to mention here. In a conservative society like ours, the so called stakeholders are mostly regressive in their attitude. 
1. The Age of Consent Act, 1891, was passed by British India to raise sexual intercourse for all girls, married or unmarried, from ten to twelve years. Its violation was subject to criminal prosecution as rape. It was severely criticised as an interference in orthodox hindu code and family matters. One such criticism led to prosecution under section 124A of IPC called as Queen Empress v. Jogendra Chandra Bose, (Bangobasi case) 1892. 
2. When Hindu Code Bill was presented there was hue and cry. Indeed Hindu law enactments also penalised many conducts which are civil in nature. It was opposed but it was necessary. Had Nehru left it to so called stakeholders, the reform in Hindu law could never have been initiated. The Bill was opposed by many muslim and non muslim organisations, experts. At the same time it was supported by many muslims and non muslims. (https://economictimes.indiatimes.com/news/politics-and-nation/muslim-women-thank-pm-modi-on-passage-of-triple-talaq-bill/articleshow/70465902.cms?from=mdr, https://www.hindustantimes.com/analysis/triple-talaq-law-a-historic-moment-for-social-justice/story-RuqHguOXNrjAcyu8vrRgcO.html)The support of Instant triple talaq Bill in media or through organisations was in the minority because of obvious reasons. (i) It is never an easy task to penetrate conservative minds and convince them. (iii) Dominant media, (print media which is serious), a group of NGOs want revolution in Hindu laws but wish to love status qua if it is muslim questions. (iii) They think that all moves by Modi government is a part of Hindutva agenda. 
3. Will it solve all problems of muslim women--“was triple talaq the sole issue the Indian Muslim women were haunted with..?” “will mere criminalization of Triple Talaq improve the deplorable socio-economic status…”? 

This is a perfectionist view. Perfectionist argument thinks that everything should be improved in one go and if all the problems cannot be resolved, do not even try for it. There are many issues, be it Muslims or hindus or others. But some beginning has to be made. The literacy among Muslims women is poor. Rightly pointed out. Thankfully, the muslim intellectuals have talked about it. The issue of literacy and instant triple talaq is entirely different. Literacy is an issue of governance. Laws and policies are at place, We need to enforce and highlight the lacuna in enforcement. Instant triple talaq is an issue of law. The Court declared it unconstitutional/illegal. Mere parliamentary law could not have served any purpose because a judicial law was already existing. The stakeholders failed miserably  to address the issues of reforms. Indeed all opportunities to address this before the decision of the Court was used only in protecting a misplaced idea of muslim identity, tradition and consensus.   

4. Another argument is “More victimization..” ---If the husband will desert her, there are laws in place for maintenance and even divorce. (pl correct me, if I m wrong). This argument sounds like a refuge to justify one's stand. 
5. THE CITIZENSHIP AMENDMENT ACT, 2019 --It was argued that instead of celebrating Aug 1, it should be Dec 15 when a movement started in Shaheen Bag. The fight and movement against the Citizenship Amendment Act, 2019 was unprecedented. The fact is that the law is not applicable to Indian citizens. The threat to Indian muslims is manufactured, and a result of fear mongering. The movement was polluted by secessionist voices, violence and riots which killed many innocent lives. The government also failed to convey the real intent of the enactment. To declare  Dec 15, as a day is open to other political parties and governments in many other states. No one stops them to honour it. 

III. Concluding remarks 

Therefore, the argument of over criminalisation of family matters is superficially attractive but substantially ineffective. It is high time muslims intellectuals should initiate support reforms in their family law. Chest beating will not help. Many other issues of personal laws are before the Supreme Court. Be it Bigamy or Halala or genital mutilation, bigamy etc. If they do not initiate a dialogue with an open mind and progressive heart, the Supreme Court will declare other practices as violative of fundamental rights. Democratic process needs to be respected with all its likings and dislikings. Modi Government and the Parliament is a new phenomenon. They are becoming stronger and stronger. They are getting support of the people. They are getting support of political parties which are not in the alliance. The institutions and the people are convinced that the government is powerful and is taking strong measures never taken before. The Parliament will pass a law to bring further reforms in personal laws and realise the intent of the founding fathers. It is better to be discuss on the table and be a part of rational discourse rather than apprehending everything as suspicious. In the time of social media, it is not possible to rant the same tune because people cannot be fooled for a longer period. Many muslim women and muslim intellectuals have started understanding it that Bhedia aya bhedia aya (भेड़िया आया भेड़िया आया ) will not work anymore if the issues of injustice, arbitrariness and gender equality are addressed genuinely and start delivering results. 

RAFALE JUDGEMENT, JUDICIAL REVIEW and LESSONS FOR THE INTELLECTUALS

WELCOME RAFALE : LEGAL BATTLE TO BATTLE FIELD

Anurag Deep, LL.M. (BHU), PhD (Gorakhpur),

Associate Professor,

The Indian Law Institute, New Delhi

1. Introduction 

   
   

Last week of July 2020 has a couple of developments which are not legally interconnected but have some interesting relationships. On the defence side, Rafale jet is now with India. On the constitutional side, the Supreme Court has condemned the practice of abusing judicial process through PILs. Another development is two tweets of  Advocate Prashant Bhushan for which he is under radar of the Supreme Court for contempt. The journey of Rafale was a complex battle of law and politics where a group of media, advocates, intellectuals, academicians, journalists etc crossed swords. It is vehemently argued that the Supreme Court of India has not played its constitutional role of judicial review since the new government (Narendra Modi government) came in power in 2014. It is also alleged that the decisions and approach of the Supreme Court seems to be giving the government a smooth sailing. The charges of bias, prejudice and favour has also been exchanged in national and international media. 

There is a possibility that the judiciary might have made errors, or might not have intervened the way it should have. But to infer motive in the judicial decisions, alleging bias in favour of government is something which needs strong condemnation.  A close, sincere and dispassionate scrutiny exposes the weakness of the charges against the judiciary. Rafale judgement (Manohar Lal Sharma v. Narendra Damodardas Modi, 2018 SCC OnLine 2807, decided by a full bench on Dec 14, 2018) is one such decision which helps understand the scope and limitations of judicial review. 

2. Judicial review 

   
   

The power of judicial review has remained a contentious issue in the area of constitutional and administrative law. The constitutional pundits have insisted that “decision” and “decision making process” are two distinct matters and identified this as a “distinction with difference”. Should the judiciary examine the “decision making process” of the State or should it also evaluate the “decision”  made by the State after the decision making process. Former is the classical role of judicial review and later is called as merit review. In the case of Centre For PIL v.  Union of India (2011) 4 SCC 1 (also called as PJ Thomas judgement or Institutional integrity judgement) the full bench reiterated the principle as under:  

Government is not accountable to the courts in respect of policy decisions. However, they are accountable for the legality of such decisions. While deciding this case, we must keep in mind the  difference between legality and merits, also between judicial review and merit review. [emphasis added] 

The Supreme Court highlighted two points in PJ Thomas which can be explained as (i) policy decisions are government domain. (ii) Legality and desirability are two different matters. Legality can be decided in court but desirability will be decided by the executive or the Parliament. When a court decides on legality, it is judicial review. When it has to decide on desirability, it is merit review. Merit review is permissible in cases of violation of pure fundamental rights, public laws.  Is the role of judicial review restricted in case of contractual transactions? Is it further restricted if the contractual matter is related to national security, defence and foreign policy? The Rafale judgement under comment answers both the questions in “yes.” It is a restatement and reiteration of the classical role of judicial review established all over the world.

3. Facts of Rafale case

   
   

In April 2015 the Government of India decided to purchase 36 Rafale Jets in fly­away condition through an Inter­ Governmental Agreement (IGA).  In June 2015 the government finally withdrew its previous proposal to buy 126 Medium Multi-Role Combat Aircraft (MMRCA). The deal of Rafale Jets was finalized in Sept 2016. In 2018, news papers reported chances of favouritism. As favouritism, kick backs are common menace in defence deals, a few concerned citizens filed a PIL. The petitioners argued that the government (surprisingly Narendra Damodardas Modi was respondent in person) --

1. favoured Reliance company which was very new in the field, 
   
   
2. deliberately ignored Indian company, Hindustan Aeronautics Limited i.e HAL, 
   
   
3. changed the terms of deal to receive unlawful benefits and 
   
   
4. there are chances of corruption. 
   
   

III. Issue 

The petitioners prayed for 

1. the registration of an FIR, 
   
   
2. a Court Monitored Investigation into illegality and non­-transparency in the procurement process, 
   
   
3. quashing the Inter Governmental Agreement of 2016 for purchase of 36 Rafale Jets, 
   
   
4. investigation into the reasons for cancellation of earlier deals. 

The issue before the Supreme Court of India was whether the petitions disclose  some legal evidence of corruption, chances of bias, favore in the defence deal. It was essential so that the interference of the Supreme Court in the defence deal, that too under the power of judicial review flowing from article 32 of the Constitution of India can be made. In other words whether the petition is convincing enough that any of the above prayers (FIR, Court monitored investigation etc.) be lawfully honoured in the defence deals.

Decision

The three judges bench discussed three issues viz. Decision Making Process, Pricing and Offsets partner. Based on the evidence present they did not smell anything wrong and finally rejected all four PILs. The Court held that “on all the three aspects, and having heard the matter in detail, we find no reason for any intervention by this Court on the sensitive issue of purchase of 36 defence aircrafts by the Indian Government. Perception of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters.” [emphasis added]  

IV. Scope of judicial review 

At first the Supreme Court decided the mandate of judicial review in this case. To take clues from the precedents the Court resorted to Jagdish  Mandal  v. State of Orissa (2007) 14 SCC 517, Maa Binda Express Carrier v. North­East Frontier Railway, (2014) 3 SCC 760 (both on the issue of construction contract). The Supreme Court recalled that in commercial transactions, the principle of judicial review is confined on the  parameters of unreasonableness and mala fides. Unless it is found that the transactions have been  tailor­ made  to  benefit  any  particular  tenderer, the Court cannot interfere. The Supreme Court also took support from a full bench opinion in Tata Cellular v. Union of India, (1994) 6 SCC 651, where it was observed that a judicial scrutiny should be limited to the Wednesbury Principle of Reasonableness and absence of mala fides or favouritism.

The Court also reminded that the contractual issue involved in this tender is special in nature because it deals with defence and national security. The tender is not for construction of roads, bridges, etc. “The parameter of scrutiny would give far more leeway to the Government.” The only foreign judgement referred by the Court through an scholarly material was Council of Civil Service Unions v. Minister for the Civil Service  (1985 AC 374) where the House of Lords held that if a royal prerogative (it enables Ministers to take executive decisions in certain cases like national interest, international treaties, grant honour etc.) is in context of national security, the power of court to interfere is very limited, though a royal prerogative can be judicially reviewed. Based on this decision the Supreme Court of India held that as the subject of the procurement is crucial to the nation’s sovereignty, the scope of judicial intervention is limited.

Levels of Judicial Review

Subject matter of judicial review decides the level of inquiry a court can make into the question involved. If the subject matter is purely fundamental right, (or corruption exclusively) the court can dig deep into the matter and extract the truth from the bottom of the facts. If it is a contractual transaction between two parties, the scope of inquiry is limited. If the subject matter is national security or foreign policy the scope of judicial review is further restricted and petitioners ought to come up with something concrete and persuasive to show a prima facie case.

This is the gist of the jurisprudence restated by the Supreme Court in the decision on Rafale Defence deal case. This case differs in numerous respects from the conventional claims of fundamental rights and public interest. Unlike the typical suit involving favouritism and  corrupt practices, the petitioners sought to invalidate a defence deal of immediate national security needs. The claim of the petitioners accord­ingly raised a number of delicate issues regarding the scope of the constitutional right under article 32 as well as the manner and standard of proof. The petitioners failed to make a persuasive case for any direction.

Be it a laissez faire or a welfare state, the subject of defence or foreign affairs remained the exclusive domain of the central government. The fate of this PIL was known from the beginning because of two reasons; limited scope of judicial review and non availability of convincing evidence. The petitioners arguments constituted recycling of the unsubstantiated media reports, selective statistics, heavy reliance on anecdotal evidence. The petitioners were able to produce only a part of the picture.

Comparative jurisdiction 

This author thinks that Rafale case reminds the national security jurisprudence developed through the precedents of US Supreme Court especially Trump v. Hawaii [585 U. S. (2018)] where it was held that cases of national security and foreign affairs always involve a circumscribed judicial review and that there was no need to “define the precise contours of that inquiry in this case”. The reason is that, in cases of national security and foreign policy the Court has only to evaluate “whether the policy is facially legitimate and bona fide” or not. If the answer is yes that “would put an end to our review.” The rationale is that defence deals, foreign policy, national security are super expert domains with democratic accountability and judiciary is neither made for it nor fit for it,the dependable evidence is very convincing.

V. Concluding Remarks : Misuse of PIL

PIL jurisdiction has addressed many problems of our country. It has served the mass and made access to justice a reality in certain sense. However, this PIL (Rafale case) is another instance of wastage of precious human resources and time. It would not be exaggerated to state that it was a misuse of judicial process. In the last few years there is a tendency to file PIL for oblique objectives. The spectrum spans from media publicity to political disagreement or business rivalry. In a full bench unanimous decision of Judge Loya death case, (Tehseen Poonawalla v. Union of India, April 19, 2018) it was rightly observed by Dr DY Chandrachud, J. that “the true face of the litigant behind the façade is seldom unravelled” and “political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office.”  This petition on Rafale had a political colour and judicial forum was misused to tarnish the image of Modi government. Another intention of this PIL was to reap political benefits in the election year (2019 to constitute 17th Lok Sabha). Post decisional criticism of Rafale indicates that one of the objectives of such PIL is also to make serious attacks on the credibility or wisdom of the judges. The judgement on Rafale was unanimous decision of Ranjan Gogoi, (CJI) Sanjay K Kaul and KM Joseph, JJ. But it was presented as if Ranjan Gogoi, CJI has deliberately favoured the government as quid pro qua. (Ranjan Gogoi was nominated in Rajya Sabha by Modi government later on). Any attack on one judge is indeed an attack on the integrity of the bench constituting all judges. A review petition (Yashwant Sinha v. Central Bureau of Investigation, November 14, 2019) was also filed against Rafale verdict which was rejected unanimously. KM Joseph, J  “agreed with the final decision” (authored by SK Kaul, J and Ranjan Gogoi, CJ) but subject to certain aspects considered by him, he placed detailed separate opinions and reasons. Petitioners, political parties and so called independent critics have left no stone unturned to make a mountain out of a molehill. Unnecessary PIL and motivated criticism of the judiciary undermine public faith in democratic institutions, independence of the judiciary and the rule of law. They need to be checked with iron hand as early as possible.