CCAL's

Lex Populi
Issue- 3
2018

Centre for Constitutional and Administrative Law

Gujarat National Law University
Attalika Avenue, Knowledge Corridor, Koba, Koba (SUB P.O)
Gandhinagar - 382426, Gujarat, INDIA
 CCAL's Lex Populi (Issue: 3) 2018

DIRECTOR'S MESSAGE

Ideas, newer and bolder perspectives hold within them the power to change the
trajectory of growth of a nation. Every idea needs a platform to build upon. In order to
ensure the constant growth and development of a legal framework, it is of utmost
importance that discourses and discussions are promoted. The spirit of
constitutionalism has seen a consistent rise globally and therefore there is a prolific need
for deliberation and assimilation of it. Gujarat National Law University has always
strived to be a pioneer in the area of learner-centric teaching and policy oriented
research endeavours. The University has aspired to be a confluence of national as well
as international emerging trends of law. Law being deeply implicated in our economic,
political, and social worlds, any pursuit of social change invariably involves an
engagement with law. The Constitution being the grundnorm of all laws plays a pivotal
role in strengthening a nation's legal framework. I am delighted that the Centre for
Constitutional and Administrative Law (CCAL) is providing such a platform to the
students where ideas can be freely expressed and analysed. The Centre by way of its
magazine Lex Populi provides a wonderful opportunity to the students to put forward
their views which further foster the growth of legal scholarship. A deeper analysis of
the law in consonance with the emerging areas and contemporary issues is the prime
focus of the new edition. I am sure that this publication will go a long way in
contributing to the promotion of scholarship in the core areas of law. I urge the student
community to make use of this opportunity to voice their opinions. I wish CCAL the
best success in this endeavour.
Prof, (Dr.) Bimal N. Patel
Director and
Professor of Public International Law
Gujarat National Law University, Gujarat, India

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CCAL's Lex Populi (Issue: 3) 2018

MESSAGE FROM CCAL'S DIRECTOR

Ever since the beginning of the Constitution of India, voluminous literature has
evolved on the subject. The Centre for Constitutional and Administrative Law has
attempted to conduct activities to engage students and public at large. The magazine
Lex Populi seeks to serve the GNLU community as an intellectual resource that
encourages dialogue and discussion in the areas of Constitutional and Administrative
Law. The first and second editions of the magazine, though a humble beginning,
created a space for itself within the university. This space has grown bigger with this
edition of the magazine wherein the number of articles has increased. This edition
delves into the intricacies of Constitutional and Administrative Law. The magazine not
only exhibits the literary skills of students but also serves as a platform for legal analysis.
The previous editions of this magazine received acceptance and appreciation from the
legal fraternity, which encouraged the Centre to pursue it further by coming up with its
third edition.
As yet again a new year dawns on us; I encourage the student body to engage in debates
and strive to discover newer perspectives. I wish the magazine the utmost success in this
regard.

Dr. Avinash Bhagi

Assistant Professor of Law, Centre Director
Gujarat National Law University, Gandhinagar

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TABLE OF CONTENTS

I. Cover Story- Legality of living will in India ...............................................4

II. Profile Review- P.N Bhagwati ....................................................................6
III. Case Summaries ........................................................................................7
1. Right to choose a partner .................................................................7
2. Cauvery water dispute .......................................................................8
3. Shafin Jahan Case .............................................................................9
4. Legalisation of Passive Euthanasia ................................................. 10
5. Barring entry of Foreign Law firms ..................................................11
IV. International News ..................................................................................13
V. Mind Speak ..............................................................................................16
1. Sedition Law: A Reasonable Restriction .........................................16
2. Triple Talaq versus Indian Constitution .........................................19
3. The Colonial Legacy: Sedition Laws in India .................................22
4. Role of Judges and Contempt of Court .........................................25
5. Judicial Corruptibility in India: A Brief View ................................28
VI. Quiz .........................................................................................................29
VII. Team of Lex Populi ...............................................................................31

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I. COVER STORY

Shivdutt Trivedi, Batch: 2014-19

Legality of Living Will in India
Right to life as enshrined under Article 21 is the foundation of the Constitution of
India. One aspect of Article 21 which has always been debated is whether right to life
includes the right to die. The Supreme Court of India in 2018 finally answered the
above question in Common Cause v. Union of India and Anr.1 The Supreme Court legalized
Passive Euthanasia by stating, "The right to life and liberty as envisaged under Article 21 of the
Constitution is meaningless unless it encompasses within its sphere individual dignity. With the passage
of time, this Court has expanded the spectrum of Article 21 to include within it the right to live with
dignity as component of right to life and liberty." The Supreme Court of India also legalized
living wills by giving a detailed procedure for the execution of such advance medical
directives.
Before delving into the nuances and the procedure laid down by the Supreme Court
with respect to advance medical directive, it is important to know what exactly a living
will is. An advance medical directive (or in some other countries referred to as a living
will) is a method for facilitation of passive euthanasia for patients who are unable to
express their intention at the time of taking the decision. Therefore, an advance medical
directive allows the patient to express his will at an earlier time, and such expression of
will would be executed at a later time. The Supreme Court of India gave the following
rationale for legalizing an advance medical directive, "A failure to legally recognize advance
medical directives may amount to non-facilitation of the right to smoothen the dying process and the right
to live with dignity."
Although there is not much difference between a living will and an advance medical
directive, the Supreme Court of India in the judgment has stated that only the terms
advance medical directive, advance directive or an advance care directive. The Supreme
Court of India also observed that in other jurisdictions, there is a legislation governing
the execution of advance medical directive. Since India does not have any such
legislation, the Supreme Court of India has given a set of guidelines in the judgment
itself which should be followed with respect to an advance medical directive.
An Advance medical directive can be executed only by an adult who is of a sound mind
and capable of communicating and in a position to comprehend the consequences of
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the directive. It must be executed voluntarily without coercion or undue influence. The
directive should clearly state in writing as to the various circumstances when medical
treatment can be withdrawn. It should also specify the name of a guardian who would
execute the directive in a situation where the executor becomes incapable of giving
consent. But the execution of the directive by the guardian must be consistent with
what is stated in the directive. If there is a situation that there is more than one valid
directive, the most recent one would be considered. An advance medical directive
would have to be signed by the executor in the presence of two witnesses and by the
jurisdictional Judicial Magistrate of First Class. The document should then be sent to
the jurisdictional District Court for it to be preserved.
The procedure for giving effect to the advance medical directive has also been provided
by the Supreme Court. If the patient is terminally ill and has a prolonged illness with no
hope of recovery or is in a vegetative state, an advance medical directive can be given
effect. The physician has to first be sure that the patient has no hope for recovery. The
physician is to then consult the guardian and close relatives and let them know of the
options available. If the patient is in a position to communicate, his 'will' would be given
paramount importance.
The physician is then required to form a Medical Board consisting of the Head of the
treating Department and at least three experts from the fields of general medicine,
cardiology, neurology, nephrology, psychiatry or oncology with experience in critical
care and with overall standing in the medical profession of at least twenty years. The
Medical Board of the hospital is to then give a preliminary opinion whether the
directive can be given effect. If the medical board gives the answer in affirmative then
the physician is required to inform the jurisdictional collector who would form another
Medical Board. The permission from such board is essential. Thus, if the permission is
given by the medical board, the directive can be given effect. There could also be a
situation where the medical board refuses to grant permission. The close relatives or
guardians, in such a case, can file a writ under Article 226 and the High Court is then the
competent authority to decide whether the directive can be given effect or not.
This is the current law relating to advance medical directive. It is only time which will
help us ascertain whether the current law laid down by the Supreme Court is adequate
or not.

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II. PROFILE REVIEW

Pragya Jain, Batch: 2016-21

Acclaimed as a pioneer of judicial activism in the country, the
contributions of Justice Prafullachandra Natwarlal Bhagwati
have been manifold.
He was born in a prolific and educated family in Gujarat and
began his practice in the Bombay High Court. He later went on
to become the 17th Chief Justice of India in 1985 when he was
just 51 years of age.
He is championed as the Father of Public Interest Litigation
Name-Prafullachandra
and introduced the concept to Indian masses with the aim of
Natwarlal Bhagwati.
empowering the marginalized, illiterate and poor section's need
Born-21 December to attain justice. He further introduced and strengthened the
1921, Ahmedabad, concept of Absolute Liability laid down in the Oleum Gas Leak
Bombay Presidency, Case. He significantly emphasized that the function of law is to
British India. inject respect for human rights and social consciousness.
Posts Held-Judge of He revolutionized the core of judicial understanding which can
Gujarat High Court, be seen in his strong dissenting judgement in the case of Bachhan
Chief Justice of Singh v. Union of India AIR 1980 SC 898, wherein he clearly states
Gujarat High Court, that death penalty serves no reformative, retributive or
Governor of Gujarat, deterrent function. He was a staunch abolitionist in approach.
Judge of the Supreme
Court, Chief Justice of He immortalized the Maneka Gandhi judgement by upholding
India. her right to travel and move as a fundamental right under Art.
19(1)(d) by carving out the golden triangle of Constitutional
Education- Jurisprudence.
Elphinstone College,
Bombay University and Perhaps the only grey spot in his outstanding career can be
Government Law attributed to his concurrence with the majority in Habeas
College, Bombay. Corpus Case in which the fundamental rights including one's
right to life and liberty were suspended in case of Emergency.
Other Activities:
Fellow of the American
This was vehemently criticized by all and his change of heart
Academy of Arts and can be observed by his strong judgements in context of Human
Sciences, Member and Rights in all his post emergency judgements.
Chairman of United
Nations Human Rights
Committee, Chancellor
of Sri Sathya Sai
Institute of Higher
Learning.

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III. CASE SUMMARIES

Aditya Gor, Batch 2015-20

1. Shakti Vahini v. Union of India2: Right to choose Life Partner is a fundamental Right
Chief Justice Dipak Mishra, Justice AM Khanwilkar and Justice DY Chandrachud
gave a decision on March 27, 2018, in which it was held that Right to choose Life
Partner is a Fundamental Right. The judgment deals with the concept of 'honour
killing' which emerges from the deeply entrenched belief in caste system. Honour
Killing means homicide of family members which have been carried out in a belief
that the deceased has bought dishonor to the family. It is perceived that the family
member has violated the so-
existing 'principles of
community'. These principles
of community do not
recognize the individual's
liberty to choose life partner.
The petitioner, in the present
case, is an organization who
has conducted research study on honour killing in various States of India. It was
prayed by the said petitioner that the Court should issue mandamus to state
governments to launch prosecution of offenders in such cases as this activity results
in the violation of human rights and fundamental rights of a person.
In this case, the court discouraged the functioning of the Khap Panchayats because
they, in the opinion of the bench, are extra-constitutional bodies, engaged in
feudalistic activities and commit crimes under Indian Penal Code. The informal
institutions for delivery of justice are not acceptable under the eyes of law. Since
"Rule of Law" accepts the determination of rights and violations only by formal
institutions. Hence, according to the court, the Khap Panchayat cannot create a dent
in the exercise of said right. The court also remarked that the "Sapinda" and
"Sagotra" marriages have no sanction of law and thus they should be stopped in
entirety. The court in this present case has laid down various preventive measures
along with punitive and remedial actions which are to be taken into consideration.
It is now well accepted, after this decision of the court that the consent of clan or
2
AIR 2018 SC 1601
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family or community is immaterial to enter into wedlock. The consent of couple will
piously get primacy. The court held that "The choice of an individual is inextricable
part of dignity which cannot be interfered in the fructification of said choice. When
two adults marry out their volition, they choose their path; they consummate their
relationship; they feel that it is their goal and they have the right to do so. Such
infringement and obstruction is, unequivocally, constitutional violation. Extra
constitutional perceptions of the community have to be melted into oblivion paving
for smooth path of liberty."
2. State of Karnataka v. State of Tamil Nadu3: Karnataka directed to release 177.25
TMC of water to Tamil Nadu
The Supreme Court on February 16, 2018 resolved the 120 year old Cauvery Dispute
by upholding the 2007 Cauvery Tribunal Award with minor tweaks. The court in this
judgement increased Karnataka's water share from the river by 14.75 thousand
million cubic feet considering the demand of high drinking potable water in the city
of Bengaluru. The water shares of Kerala and Puducherry were left untouched in
this case. This arrangement between the states is to prevail for 15 years, as held by the
court. As consequence of the aforesaid allocation, the Bench said the state of
Karnataka would now be required to make available at the inter-state border with
Tamil Nadu, i.e., at Billigundulu, 177.25 TMC of water for the basin.
In this landmark opinion, the court considered rivers to be the national assets and
thus no state can claim to have possession over them. A bench led by Chief Justice of
India had held that rivers must be shared on equitable basis among states. The court
observed that, "This principle of equitable apportionment as is now intrinsically
embedded generally in pursuit for apportionment of water of an international
drainage basin straddling over two or more states predicates that every riparian state
is entitled to a fair share of the water according to its need, imbued with the
philosophy that a river has been provided by nature for the common benefit of the
community as a whole through whose territory it flows even though those territories
may be divided by frontiers as postulated by law".
The court also directed the Centre to set up the Cauvery Management Board as
suggested by the Tribunal in six weeks to implement the court's decision. The court
also upheld the validity of two agreements namely, the 1892 and 1924 agreements
entered between the composite Madras Presidency and the princely state of Mysore

3
(2018) 4 SCC 1
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as binding since they neither share any political arrangement nor touched any facet
of sovereignty of India. The court observed that the agreements cover the areas of
larger public interest, which do not have any political element, and in this
background, the agreements are neither inoperative nor completely extinct.
3. Shafin Jahan v. Asokan KM4 – Kerala High Court was wrong in annulling the
marriage between Hadiya and Shafin Jahan
This judgement is popularly known as the "Love Jihad Case". In this case, the
Supreme Court has set aside the Kerala High Court judgement annulling the
marriage between Hadiya and Shafin Jahan. This decision was passed in lieu of the
statement made by Hadiya during her personal appearance before the court. The
High Court had annulled the marriage under Article 226 of the Constitution of
India, which according to the Supreme Court was wrong.
In a personal statement made by Hadiya, she had admitted her marriage with
appellant no 1. The factual score reveals that Hadiya was converted to Islam and she
subsequently married a Muslim man named Shafin Jahan. The Kerala high Court
observed this marriage as "sham" and thus annulled it. The High Court directed her
safe return to the protective custody of her Hindu parents. The High Court also
made some controversial observations like: "a girl aged 24 years is weak and
vulnerable, capable of being exploited in many ways" and "her marriage being the
most important decision in her life, can also be taken only with the active
involvement of her parents."
Against this decision of Kerala High Court, Hadiya's husband filed Special Leave
Petition before the Supreme Court. According to him, the marriage was annulled
without any legal basis and that "the impugned order is an insult to the independence
of women of India as it completely takes away their right to think for themselves and
brands them as persons who are weak and unable to think and make decisions for
them. That the same is against their fundamental rights and should be struck down".
The Supreme Court noted that the right to privacy of an individual should be
preserved which includes people's freedom to eat and dress the way they want and to
believe in any ideology or religion, as long as it doesn't harm others. The Supreme
Court said that the state and courts cannot and should not interfere in these matters.
It is not anyone's business what somebody else wears, consumes, believes in or who
they marry. The apex court observed that the right to marry a person of one's choice
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is integral to the right to life guaranteed under Article 21 of the Constitution.

4. Common Cause v. Union of India5: Passive Euthanasia is permissible
The ruling stems from a petition filed by an NGO 'Common Cause', which
approached the court seeking a direction for recognition of 'living will' and
contended that when a medical expert said that a person afflicted with terminal
disease had reached a point of no return, then he should be given the right to refuse
being put on life support. Passive euthanasia is a condition where there is withdrawal
of medical treatment with the deliberate intention to hasten the death of a
terminally-ill patient.
In a landmark verdict with far reaching implications, the Supreme Court recognised
that a person in a persistent vegetative state can opt for passive euthanasia and
execute a living will to refuse medical treatment. In this case, the five judges
constitution bench headed by the Chief Justice had permitted an individual to draft a
living will specifying that she or he will not be put on life support if they slip into an
incurable come. The Supreme Court also laid down principles relating to the
procedure for execution of living will and spelt out guidelines and safeguards in this
regard. These guidelines and directives are to remain in force till the Parliament
brings legislation to this effect. It was observed that, "with the advancement in the
technology of medical care, it has become possible to prolong the death of the
patients for months and even years in some cases. At this juncture, the right to refuse
medical treatment comes into picture".
Justice Chandrachud observed that, "Life and death were inseparable and it was
necessary for the court to recognise that dignity of citizens continues to be
safeguarded by the Constitution even when the life is seemingly lost... Dignity in the
process of dying is as much a part of the right to life under Article 21. To deprive an
individual of dignity towards the end of life is to deprive the individual of a
meaningful existence."
This living will can only be executed by an adult who is of a sound and healthy state
of mind and in a position to communicate, relate and comprehend the purpose and
consequences of executing it. It must be voluntarily executed without coercion or
inducement and after having full knowledge or information. Consent of the
individual in writing is mandatory. The judgement also dealt with the content of the
living will. The executor can withdraw or alter the living will accordingly. The court
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held that the fundamental right to a meaningful existence includes a person's choice
to die without suffering. The five judges' bench unanimously agreed that, "A
dignified death should follow a meaningful existence".
5. Bar Council of India v. AK Balaji6: Foreign Law Firms are not allowed to practice in
India
The Supreme Court through this ruling settled a long standing argument on whether
foreign firms or attorneys should be allowed to enter the domestic legal market or
not. Various people have been opposing the entry of foreign law firms in India as
Indian advocates are not allowed to practice in the U.K., the U.S., Australia and other
nations, except on fulfilling onerous restrictions like qualifying tests, experience or
work permit.
Through this decision, the court has held that foreign lawyers cannot carry out any
litigation or non-litigation work in India on a permanent basis. The apex court,
through this judgment, has upheld the earlier decisions given by the Bombay and
Madras High Court on the same matter. However, the court has allowed foreign law
firms to give legal advice to their clients on foreign laws. It has been enumerated in
the judgment that the Bar Council of India has regulatory control over overseas legal
professionals even if they are in the domestic country for temporary assignments. A
bench comprising of Justices Adarsh Kumar Goel and RF Nariman has observed
that "Foreign lawyers or law firms can take up tasks here only on a purely temporary
or casual basis. In such cases too, they will be governed by the BCI's code of conduct
for lawyers."
It was clarified that legal practice would include litigation and non-litigation work,
such as giving opinion, drafting instruments, participation in conferences involving
legal discussions as well. Only advocates enrolled with the BCI are entitled to
practice law in India. All other persons can appear with permission of the court,
authority of person before whom proceedings are pending. On a question as to how
to determine whether the practice is casual or frequent, the court answered that it is
to be decided on facts of each and every case as the conclusion will vary from
situation to situation. The BCI or the Centre will be at liberty to make appropriate
rules in this regard. The Business Process Outsourcing (BPO) companies operating
in India can run their business because they do not fall within the ambit of the
Advocates Act. These companies provides a wide range of services to customers like

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2018 SCC Online SC 214
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word processing, secretarial support, transcription and proof reading services, travel
desk support services and others. It was also ruled that foreign law firms and lawyers
did not have an "absolute right" to conduct arbitration proceedings and disputes
arising out of contracts relating to international commercial arbitration.

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IV. INTERNATIONAL NEWS

Samira Mathias, Batch: 2015-20

Important elections around the world-
Netherlands – Prime Minister Mark Rutte secured a second term with the centre-right
People's Party for Freedom and Democracy (VVD) achieving an electoral victory.
Iran - Hassan Rouhani won a second term as President, garnering 57% of votes in Iran.
France – Emmanuel Macron's founder of centrist party La Republique en Marche won
the elections, becoming the youngest president in French history.
Rwanda – Paul Kagame commenced a third term in the August 2017 with a landslide
victory of over 98% votes.
Germany – Angela Merkel won a fourth term in elections dodged by concerns of
security, migrant policies, and an unstable EU.
Austria – Austria registered a shift to the right with the far-right Freedom Party of
Austria (FPÖ) and the conservative People's Party (ÖVP) forming a coalition
government headed by Sebastian Kurz.
Malaysia- The 14th Malaysian general election was held on 9 May 2018 to elect
members of the
14th Parliament of Malaysia. The election results shook the world as 92-year-old
Mahathir Mohamad secured a shock victory,
ousting Najib Razak's ruling party for the first time
in the country's history.
In other news
Asia - Pacific
Cambodia – The Cambodian Parliament
approved a controversial amendment to the Law on Political Parties that effectively
confers the Supreme Court and the Ministry of Interior with the power to dissolve
political parties on grounds of threats to national unity. Article 44 of the above-
mentioned law allows the Supreme Court to disband parties that "causes separation,
sabotages democracy, undermines the state's security, creates forces, incites people to
national disharmony and is manipulated by foreign governments or political parties".
Furthermore, individuals with past criminal convictions cannot hold senior positions
within parties or stand for elections.
Former President of South Korea Park Geun-hye was convicted on corruption charges

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in April 2018, in a rare instance of a televised trial. Park had colluded with Choi Soon-sil
and accepted bribes in return for policy favours from companies like Samsung and
Lotte. Park Guen-Hye was impeached in 2016 when allegations of the scandal
emerged.
China – The Chinese Communist party removed limits on the number of Presidential
terms a person could hold, paving the way for Xi Jinping to be re-elected. In March
2017, Mr. Jingping was unanimously re-elected as the President.
Iran – Parliament passed an amendment to their drug laws, restricting the imposition
of the death penalty to fewer offences. In drug trafficking cases, the quantity of
possession of drugs was increased, to attract the death sentence. However, repeat
offenders who had previously been meted out 15 years to life in prison or the death
sentence, and individuals who are armed and intend to use those arms against law
enforcement officials would not be exempt from the more lenient provisions.
Individuals who head drug cartels, or use children as trafficking drugs will also not be
eligible for lighter sentences. The amendments must be approved by the Guardian
Council, an Islamic juristic body, to ascertain whether they are in consonance with
Sharia law, before it is approved.
Malaysia – Malaysian Prime Minister Najib Razak dissolved Parliament in April two
months before his term was actually to expire, accelerating the general elections. The
dissolution comes on the heels of a term encumbered by a multi-billion dollar state
fund scandal and pressure to win the next election amidst falling popularity with the
electorate.
South Korea – The Law of Political Parties has been criticised for being vague, and for
giving the power of regulating political parties to the Ministry of Interior in violation of
international standards which require it to be done by a body that is independent of the
executive.
Uzbekistan – The Senate of Oliy Majilis of Uzbekistan passed "On Constitutional
Court of the Republic of Uzbekistan". The comprehensive constitutional law defines
the powers of the Constitutional Court, widens its mandate, brings clarity to the
qualifications of judges and incorporates principles for the functioning of the Court.
Europe
United Kingdom – In a June 2016 referendum, the UK decided to leave the European
Union. On 29 March 2017, British Prime Minister Teresa May triggered article 50 of the
Lisbon Agreement which has state stipulations for exiting the EU. This exit, popularly
dubbed Brexit will take effect by 29 March 2019. Thereafter, a transition period will
comm. ence and will continue till 31 December 2009, when businesses and individuals

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will be given the chance to adapt to the legal and regulatory changes of Brexit. In June,
May called for snap elections – the result of which left her party seriously lower in
strength in Parliament. A Brexit divorce deal was reached in December 2017.
Spain – In October 2017, Catalonia called a referendum for independence from Spain.
Though the Spanish constitutional court declared it illegal, the majority of voter
turnout voted for secession, and shortly after, the majority in the Catalan party declared
independence. Madrid invoked emergency powers and dismissed the Parliament and
called for elections, but separatists won a majority. Deposed Catalan President Charles
Puigdemont remains in exile, facing the possibility of arrest due to sedition charges, if
he returns to Spain.
Africa
Mauritania – In August 2017, the people of Mauritania went to polls on a range of
constitutional changes. Despite voter turn-out being low, the majority voted in
constitutional changes that had been sought by the President Mohamed Ould Abdel
Aziz. The referendum which was called after the senate refused to comply with
President Aziz's proposals for constitutional changes found support for the abolition
of the senate – the Upper House of Mauritania's Parliament, modifications to the
national flag and the national anthem, and changes in the composition of the
constitutional courts.
America
Paraguay – Paraguay faced a constitutional crisis in March 2017 when the Senate
passed a Bill to allow Presidents to stand for more than one term. The Constitution
which was passed in 1992 had prohibited multiple terms, coming on the heels of a 35-
year dictatorship. However, the crisis was averted when President Horacio Cartes
announced he would not be standing for re-election after he was inspired by Pope
Francis' urging for peace and dialogue. The announcement was also to assuage
concerns of foreign investors that Cartes' re-election could spark unrest in the country
and be detrimental to business.
North America – As part of the 2015 nuclear agreement, which requires Presidential
waiver every 4 months, Donald Trump waived sanctions against Iran in January 2018.
This followed a decertification in October 2017. However, Trump threatened
America's exit from the deal if other allies refused to agree to a slew of proposed
changes. He has promised Congressional amendments to domestic legislation that
governs US participation in the Joint Comprehensive Plan of Action.

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V. MIND SPEAK

Ankit Sharma, Batch: 2014-19

1. Sedition Law: A Reasonable Restriction?

Introduction
The escalation in the episodes of misuse of sedition laws to suppress dissent has
sparked off an imperative dialogue to the effect if the archaic law should be done
away with, as it being, an unreasonable impediment to Right to free speech and
Expression7. Section 124A of The Indian Penal Code, 1860 makes it an offence to
bring into hatred or contempt, or excite disaffection8 towards, the government
established by law in India and seeks to punish it with imprisonment for three years
or for life and with a fine. The appended explanations qualify the rigour of the law by
exempting from its purview mere criticism of the government9 or the administration
without exciting hatred, contempt or disaffection10.
Sedition and Constitutionality
The crime of sedition is intended to protect the very existence of the State11. The
objects of sedition generally are to induce discontent and insurrection12, and stir up
hatred13, contempt14, disaffection15 and opposition to the Government16, and the very
tendency of sedition is to incite the people to violence17 and rebellion18 to disturb the
tranquility19 and security of the state20 thereby causing public disorder21. The word
"disaffection" connotes a positive feeling of aversion, a definite insubordination of
authority or seeking to alienate the people and weaken the bond of allegiance, a
feeling which tends to bring the Government into hatred and discontent22, by
imputing base and corrupt motives to it23. "Government established by law" is not a
reference
7
Art. 19(1)(a), The Constitution of India, 1950.
8
Emperor v Bhaskar Balavant Bopatkar, (1906) 8 BOMLR 421; Explanation 1, § 124A, The Indian Penal Code, 1860.
9
Explanation 2, § 124A, The Indian Penal Code, 1860.
10
Explanation 3, § 124A, The Indian Penal Code, 1860.
11
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
12
Reg. v. Aldred, (1911-13) 22 Cox's Criminal Law Cases, 1 at 3.
13
Tara Singh v. The State, A.I.R.1951 Punj 27.
14
Bilal Ahmed Kaloo v. State of Andhra Pradesh, (1997) 7 SCC 431; AIR 1997 SC 3483.
15
Emperor v. Bal Gangadhar Tilak (1897) 22 Bom 112, 129; Queen Empress v. Jogendra Chunder Bose, (1891) 19 Cal 35, 41.
16
Sher Muhammad v. Crown, AIR 1949 Lah 218: 51 CrLJ 98: (1950) Lah 130: Pak LR 1949 Lah 545.
17
Ahmad Ali v. The State. This case was cited in A.I.R. 1956 Allahabad 598 and was referred to in Mohd. Ishaq Ilmi v.
The State of Uttar Pradesh, A.I.R. 1957 All 782 at p. 791.
18
Nazir Khan and Ors. V. State of Delhi, (2003) 8 SCC 461.
19
Edward Jenks, The Book of English Law, P.B. Fairest, 6th ed. 1967, p. 136.
20
Brij Bhushan and Anr. v. The State of Delhi, 1950 AIR 129.
21
Reg. v. Alexander Martin Sullivan,(1867-71) 11 Cox's Criminal Law cases, 44 at p. 45.
22
Queen-Empress v. Ram Chandra Narayan, (1898) 22 Bom 152 (FB).
23
Satara i.l.r., (1898) I.L.R. 22 Bom. 112.

16
 CCAL's Lex Populi (Issue: 3) 2018

to "the person's for the time being engaged in carrying on the administration"24 but
referred to the government as the visible symbol of the State25. The seditious
intention which is essential26 to prosecution for seditious libel must be founded is an
intention to incite violence or to create public disturbance27 or to excite hatred against
the Government28.
Albeit the contours of the offence, as aforementioned, have been precisely
demarcated, the governments, by disregarding the same, have been exploiting the
open-endedness of the provision by cracking down on dissenters and critics by
charging them of Sedition; raising concerns with regard to the provision's
constitutionality in terms that it transgresses the citizens' right to free speech and
expression. The Preamble and Article 19(1) (a) to the Constitution of India
guarantees every citizen with liberty of speech and expression which includes the
right to propagate one's views through any communication media29. But this mother
of all liberties30 is not unchecked and is qualified by Article 19(2) which seeks not to
affect any law which imposed reasonable restrictions on the exercise of the right to
freedom in the interests of the public order.
'Public order' is the even tempo of the life of the community31. It is an expression
which signifies a state of public safety32 and tranquillity33 which prevails amongst the
members of a political society as a result of the internal regulations enforced by the
government which they have established. Anything which affects public tranquillity
also affects public order and may assume such grave proportions as to threaten the
security of the State34.
It is well recognized in all legal systems that the right to freedom of speech and
expression means that any person may say what he pleases so long as he doesn't
infringe the sedition law35. The purpose of the crime of sedition was to prevent the
government established by law from being subverted because the continued
existence of the government established by law is an essential condition of the
stability of the State36. Disapprobation37 and mere allegations against government are
not sedition38. It is only when discussion or advocacy reaches the level of
24
Queen Empress v. Bal Gangadhar Tilak and Mahadev Bal, Supra note 9.
25
Supra note 5.
26
Satyendra Nath Majumdar v. The King Emperor, AIR 1931 Cal 337 (2).
27
Boucher v. R, 1951 SCR Canada 265
28
Sachin Das v. Emperor, AIR 1936 Cal 524.
29
A.K. Gopalan v. The State of Madras, 1950 AIR 27.
30
Dheerendra Patanjali, Freedom of Speech and Expression India v America: A Study,
http://www.indialawjournal.org/archives/volume3/issue_4/article_by_dheerajendra.html
31
Arun Ghosh v. State of West Bengal, [1970] 3 S.C.R. 288.
32
The Superintendent, Central Prison, Fatehgarh v. Ram Manohar Lohia, [1960] 2 S.C.R. 821
33
Brij Bhushan and Anr. v. The State of Delhi, Supra note 14.
34
Romesh Thappar v. The State of Madras, AIR 1950 SC 124.
35
Halsbury's Laws of England, LexisNexis Butterworths, 2nd Edn 1932, Vol. II, p. 39.
36
Supra note 5.
37
Supra note 9.
38
Explanation 2, § 124A, Indian Penal Code, 1860. 17
CCAL's Lex Populi (Issue: 3) 2018

incitement that Article 19(2) kicks in39. It is at this stage that a law may be made
curtailing the speech or expression that leads inexorably to or tends to cause public
disorder40 or tends to cause or tends to affect the sovereignty & integrity of India, the
security of the state etc.41
It is can be unequivocally conceived that expressions, however fuming and
provocative, will not constitute sedition unless they incite violence against
government established by law and cause public disorder42. Hence the provision does
not exceed the bound of reasonable restrictions on the right of freedom of speech
and expression and is clearly, therefore, saved from the vice of unconstitutionality43.
Conclusion
The first and most important fundamental duty of every government is the
preservation of order, since order is the condition precedent to all civilization and
the advance of human happiness. This duty has no doubt been sometimes
performed in such a way as to make the remedy worse than the disease; but it does not
cease to be a matter of obligation because some on whom the duty rests have
performed it ill44. Hence, misuse doesn't warrant abrogation of a provision which is
constitutionally valid. The provision should be retained while the following measures
could be taken to minimize its misuse:
1. The provision ails of obfuscating vocabulary which makes it vulnerable to
misuse. The diction should be revised to make it unambiguous.
2. By prescribing a disproportionate optimum punishment of life
imprisonment even for the words spoken, it designs a nefarious power
structure that is inherently illiberal and dangerously oppressive45. Hence, the
punishment of life imprisonment should be done away with and substituted
by alternative apropos liability.

39
A good example of the difference between advocacy and incitement is Mark Antony's speech in Shakespeare's immortal classic Julius Caesar.
40
Sakal Papers (P) Ltd. & Ors. v.Union of India, [1962] 3 S.C.R. 842,
41
Shreya Singhal v. Union of India, (2015 )5SCC 1, AIR 2015 SC 1523.
42
Niharendu Dutt Majumdar v. The King Emperor, (1868) 11 Cox. C.C. 44.
43
Supra note 5.
44
Supra note 36.
45
Kaleeswaram Raj, A case against the sedition law, Frontline Magazine, Print Edn. March 18, 2016.

18
 CCAL's Lex Populi (Issue: 3) 2018

Ankit Sharma, Batch: 2014-19

2. Triple Talaq Versus Indian Constitution

The Supreme Court recently declared triple talaq as unconstitutional amid much
hype and controversies. The ruling was made after five women and the Bharatiya
Muslim Mahila Andolan petitioned the court. The verdict was split in the ratio 3:2,
indicating that the fight to reclaim individual freedom and equality enshrined in our
Constitution entails a long treacherous road and the personal laws cannot override
fundamental rights but it also shows that there is only a hair's breadth difference. In
the event that even one judge had differed, the dissent would have become the
majority judgement. As a result, it would have fatally undermined the constitutional
framers' vision to frame a secular Constitution, where religion could not become the
arbiter of an individual's civil status and her civil rights. In a single stroke, it would
have set back a long struggle for the rights of basic equality and democracy against
the claims of religion and unconstitutional customs and practices.
A majority of three judges held that the Muslim Personal Law (Shariat) Application
Act, 1937 ("1937 Act") did not codify triple talaq. It was held that the provisions of
the 1937 Act did not alter the status of 'Shariat' from 'personal law' to 'statutory law'.
Since Shariat is not based on any state legislative action, it cannot be tested on the
touchstone of being a state action. Being a matter of religious faith, there is no
question of personal laws being violative of constitutional provisions and
particularly, the provisions relied upon by the petitioners, to assail the practice of
Triple Talaq ('talaq-e-biddat'), namely, Articles 14, 15 and 21 of the Constitution.
It was also held that that the practice of 'talaq-e-biddat' cannot be set aside and held
as unsustainable in law for the three defined purposes expressed in Article 25(1),
namely, for reasons of it being contrary to public order, morality and health. The
Chief Justice clearly mentioned that Triple Talaq has no nexus to 'morality' as well.
However, the court refrained from providing any reasoning for this.
It is interesting to note the submissions made by the petitioners in the current case. It
was submitted that the reason behind opposing this form of divorce is its
arbitrariness and irrational approach. Triple Talaq (talaq-ul-bidat) refers to the
practice of a husband saying 'talaq' three times in one sitting and instantly divorcing
and breaking off all the marital relations with immediate effect without any recourse
to arbitration or reconciliation with the help of relatives, friends and Sharia courts46.
This practice has been widely criticized as wrong and illogical, does not entail any
46
Syed Ameer Ali, Mahommedan Law 572 (1929).
19
CCAL's Lex Populi (Issue: 3) 2018

waiting period (Iddat) and is neither recognized by the Constitution nor an integral
part of even personal laws of Muslims. Further, the distinction is arbitrary because a
man can give unilateral divorce without any reasonable cause. In these practices,
women lack the right to justifiable reason and in order to get divorce, have to give up
their 'dower' amount. Women are also subjected to severe mental agony in most
cases. Thus, it was argued that the right of a woman to human dignity, social esteem
and self-worth were vital facets and abrogation of the same provides a good ground
to invalidate 'Triple Talaq' on the grounds of morality.
Additionally, if after pronouncing a 'Talaq-ul-Bidat', a husband wants to reunite with
his divorced wife, the wife has to practice 'halala',47 which involves remarrying
another man, consummating the second marriage, getting divorced and observing
the 'iddat' period before marrying the first husband again. This is extremely
derogatory to the dignity of a woman and against the fundamental duty under
Article 51-A(e) of the Constitution which mandates a duty on every citizen of India
to renounce practices derogatory to the dignity of women.
Although the present bench did not exclusively decide the practice of 'halala', it was
said that the determination of the present controversy of 'Triple Talaq', may
however, coincidentally render an answer even to this issue. The court said that
unconstitutional practices do not
constitute custom and the same
were void with respect to Article 13
of Indian Constitution. It was
pointed out by the bench, that
gender equality and dignity of
women, were non-negotiable. It is
also worthwhile to note that the
constitutional bench stated that in
terms of Article 141, the case of Shamim Ara v. State of U.P48 is the law that is
applicable in India and also the law of the land. In that case, the Hon'ble Supreme
Court held that 'Triple Talaq' shall not be considered as valid unless it is proved that it
was pronounced for a reasonable cause and there have been attempts of
reconciliation and arbitration as dictated by the Islamic scriptures.
This bench, in addition to the discussions of plethora of judgments on the issue of
'Triple Talaq', also took cognizance of traditional Islamic law and was convinced
47
Tahir Mahmood & Saif Mahmood,
Muslim Law In India And Abroad, 22 (2012). at 182
20
48
Shamim Ara v. State of U.P., AIR 2002 SC 3551.
 CCAL's Lex Populi (Issue: 3) 2018

from various verses of the Holy Quran that 'Triple Talaq' in one sitting was
considered as only one 'talaq' during the Prophet's time and during the early years of
the second Caliph Umar49. Furthermore, Islam also abhors the practice of divorce in
such a hasty manner and mandates that the parties must undergo reconciliation and
arbitration before pronouncing divorce.
Justice Joseph, supporting Justice Nariman's judgement, in his separate judgement
said, "What is held to be bad in the Holy Quran cannot be good in Shariat and, in that
sense, what is bad in theology is bad in law as well".
The right given under Article 25(1) and Article 25(2)(a) to the state reserves the right
to regulate any secular activities which may be associated with religious practice and
there is a further right given to the State by sub clause (b) under which the State can
legislate for social welfare and reform even though by doing so, it might interfere
with religious practices. If religious beliefs or practices conflict with matters of social
reform or welfare then such religious beliefs or practices must yield to the higher
requirements of social welfare and reform. This feeling of sacrifice is what
constitutes 'Unity in Diversity'.

49
Sahih Muslim, Hadith No. 1482.
21
CCAL's Lex Populi (Issue: 3) 2018

Mayank Gupta, MBA

3. The Colonial Legacy: Sedition Laws In India

Are the masses of the nation who are allowed to show 'affection' towards the
government restrained to exercise the opposite of the same? This article
below quintessentially deals with this question.
Law of sedition in India evolves from Section 113 of the Macaulay's draft Penal
Code of 1837 and was originally omitted from the IPC, the reason for the omission
from the Code as enacted is not clear, "but perhaps the legislative body did not feel
sure above its authority to enact such a provision in the Code."50 Sedition as a crime
was included in 1870 by the British Government in Chapter VI that deals with
"offences against the State". The punishment that this section carries extends up to
life imprisonment and the charge is both non-bailable and cognizable. This perfectly
shows the gravity of offence. Today, in a democratic set up how far the publishing or
preaching of protests even questioning the foundation of the form of government
could be imputed as causing disaffection towards the government and thus
committing any offence under Chapter VI of the IPC has to be examined within the
letters and spirit of the Constitution and not as previously done under the imperial
rule51. Many personalities including the 'Father of the Nation' and several freedom
fighters have been tried and punished during the imperial rule under the above
section.
T H E I N FA M O U S S E D I T I O U S T R I A L O F M O H A N D A S
KARAMCHAND GANDHI:
The famous seditious trial of Gandhiji along with Shankarlal Banker, the printer of
'Young India' for publishing three articles in the aforesaid paper was conducted
before the Sessions judge of Ahmedabad, and the Advocate General of Bombay,
Strangman appeared on behalf of the British Government to prosecute Gandhiji.
The allegations placed before the judge by the Advocate General were remarkably
admitted by Gandhiji in his famous and vehement endorsement that "I would like to
state that I entirely endorse the learned Advocate-General's remarks in connection
with my humble self. I think that he was entirely fair to me in all the statements that he
has made."52 The most appealing part of the trial was that Gandhiji pleaded guilty
which was accepted by the judge and he then accordingly placed the matter for
hearing on the quantum of sentence. During the hearing the judge by a respectful
response acknowledged the stature of Gandhiji and his commitment to non-
50
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
51
Advocate Manuel P.J. vs State, 2012 (4) KLT 708.
22
 CCAL's Lex Populi (Issue: 3) 2018

violence but held Gandhiji guilty of sedition as he observed that he was bound by the
law to do so and he was accordingly sentenced to undergo simple imprisonment for a
period of six years.
The issue of Sedition was anxiously discussed during the Constituent Assembly
debates. In 1947, Sardar Vallabhbhai Patel, who went on to become the first Home
Minister of India made an exception for "seditious, obscene, blasphemous,
slanderous, libelous or defamatory" language,53 which was vehemently opposed by
many political parties including the Communist Party of India. Finally an
amendment was moved to drop the word from the Penal Code and not allow it to
infringe the 'Freedom of Speech and Expression'. The word accordingly
disappeared from the Constitution when it was adopted but Section 124A did remain
in operation. The first case which aroused in independent India was related to the
publishing of objectionable content in a magazine named 'Organizer', run by the
RSS. The matter went to the Supreme Court and the apex court accordingly directed
the magazine publishers to clear the 'provocative' content. Sedition laws remained in
the statute book post-independence and were used by both the State and Central
Governments to resist political dissent.
The first major constitutional hurdle to sedition laws came in 1958 when the
constitutional validity of Section 124A was challenged before the Allahabad High
Court. A three judge special bench comprising Justice M Desai, N Gurtu, N Beg, JJ.
allowed the appeal while setting aside the conviction of one Ram Nandan and
accordingly struck down Section 124A of IPC as void.54 This decision was overruled
by the Supreme Court in 1962 in Kedar Nath Singh v. State of Bihar55 wherein it was
held that the Section does not suffer from the vices of unconstitutionality. The case
involved one Kedar Nath a member of the Forward Communist Party in Bihar who
was involved in terming the officers of C.I.D as "dogs", the Indian National
Congress as "Goondas", he went on saying that he believe in revolution, which will
come and in the flames of which the capitalists, zamindars and the Congress leaders
of India, who have made it their profession to loot the country, will be reduced to
ashes and on their ashes will be established a Government of the poor and the
downtrodden people of India. Subsequently, Kedar Nath Singh was convicted by the
Trial Court under Section 124A and Section 505 and was sentenced to undergo
rigorous imprisonment for a period of one year. In this landmark case the Supreme
Court was confronted with two conflicting view of the Federal Court56 and the Privy
53
Atul Dev, "A History of Infamous Section 124-A".
54

55
Ram Nandan v. State, AIR 1959 All 101. 23
Kedar Nath Singh v. State of Bihar, AIR 1962 SC 955.
56
Niharendu Dutt Majumdar v. The King, (1942) F.C.R. 38.
CCAL's Lex Populi (Issue: 3) 2018

Council57, the former asserted that public disorder or the reasonable anticipation or
likelihood of public disorder is the gist of the offence and the latter was of the
opinion that the speech itself, irrespective of whether or not it leads to an incitement,
could be an offence. Considering Article 19A of the Constitution, the bench
observed that, "If the view taken by the Federal Court was accepted then Section
124A would be constitutional but if the view of the Privy Council was accepted it
would suffer from the vices of unconstitutionality, then accordingly the view of
Federal Court was accepted.

57
King-Emperor v. Sadashiv Narayan Bhalerao,
I.L.R. (1947) IndAp 89. 24
 CCAL's Lex Populi (Issue: 3) 2018

Gyana Pathak and Shachi Kalani, Batch 2016-21

4. Role of Judges and Contempt of Court

As we know "judiciary" is the most important pillar of democracy, hence occupies a
position of transcendental magnitude. Judges are more often than not referred as
"my lords" naturally symbolize "god like" figure in administration of justice.
Obviously, they are the best connoisseur of "laws" and it is their fundamental
responsibility to protect law and ensure unblemished delivery of justice. Contempt is
constituted by any conduct that tends to bring the authority and administration of
law into disrespect or disregard or to interfere with or prejudice parties or their
witnesses during litigation.58
In a democracy the people should have the right to criticize judges. The purpose of
the contempt power should not be to uphold the majesty and dignity of the court but
only to enable it to function.59 The basic principle in a democracy which states the
supremacy of the people follows that judges, legislators, ministers, bureaucrats and
all other authorities are servants of the people. Once this concept of popular
sovereignty is kept firmly in mind, it is perceivable that the people of India are the
masters and all authorities including the courts are their servants. Surely, the master
has the right to criticize the servant if the servant does an act which is deviant from
what he was authorized to do. It would logically then follow that in a democracy the
people have the right to criticize judges. Then why should there be a Contempt of
Courts Act, which to some extent prevents people from criticizing judges or doing
other things that are regarded as contempt of court.
Justice Karnan is a case in point and is blatant
defiance of court order coupled with preposterous
order to implicate justices of India's apex court
presents a very bizarre scenario in judicial system
of India. It is expected from the honourable judges
to exercise maximum caution while dealing with
contempt of court cases. They literally represent
"gods" on earth, hence a symbol of protector as well as evaluator of justices also.
They have to be very circumspective while delivering justice and avoid overreaching
themselves.
58
Contempt of Court, This definition was adopted in 1959 by the report of the Committee of Justice on the subject of contempt of court under
the Chairmanship of Lord Shawcross as being one the Committee could not improve on. See p. 4 of that report.
59
Satyam Bruyat, 'It's time to amend the law on Contempt of Court',
http://blogs.timesofindia.indiatimes.com/satyam-bruyat/its-time-to-amend-law-on-contempt-of-court/.

25
CCAL's Lex Populi (Issue: 3) 2018

However, sliced any way, the truth is that the judiciary has its institutional failings —
the Karnan saga may simply be a course reading case in demonstrating to us how
expanding these imperfections are. The decision in the impugned case has various
conceptions. The Supreme Court's request is indistinct and not genuinely steady
with the Constitution. A judge of the HC or the SC must be evacuated by a dominant
part vote in the Parliament, according to 124(4). This is the place the May 9 order
arrange turns out to be marginally precarious — while it arranges that Karnan be
expelled from all his legal obligations, it doesn't clear up whether he is evacuated as a
judge. Without a doubt, taking ceaselessly Karnan's forces and works and reproving
him to jail adds to expelling him as judge for all down to earth purposes — which is a
choice the Parliament, and not the judiciary, must take.
Also, there seems to be an aimless exercise of suo motu control. Under the
Constitution, the SC and the HCs are given the ability to take cognizance of issues
regardless of the possibility that an instance of question is not documented before
them (i.e., "suo motu powers"). This power is conceded on the assumption that it will
be utilized sensibly, sparingly and with attentiveness. The suo motu control does not,
obviously, enable the courts to outperform the lead of law.
Nevertheless, the Indian judiciary through its landmark pronouncement has tried to
maintain a balance between freedom of speech and the courts' ascendancy to punish
for its contempt. The Supreme Court's judgement in the case of Vinay Chandra
Mishra60 belabored the position of law regarding contempt and proposed that the
judiciary acts not just as the guardian of law and third pillar but in fact the foremost
pillar of a democratic State.
"The object of the discipline enforced by the Court in case of contempt of court is
not to vindicate the dignity of the court or the person of the judge, but to prevent
undue interference with the administration of justice", noted Justice L. Bowen.61 Be
it civil or criminal the judges do not have any security when it comes to contempt of
court. Section 3 of Judges (Protection) Act, 1985 grants limited protection to judges
against civil and criminal proceedings for any act, thing or word, committed, done or
spoken by him when , or in the course of acting or purporting to act in the discharge
of his official or judicial duty or function. Section 77 of the Indian Penal Code, 1860
affords similar protection to judges: Nothing is an offence which is done by a judge
when acting judicially in the exercise of any power which is, or which in good faith he
believes to be, given to him by law. The Constitution of India and the Contempt of
60
AIR 1995 SC 2348
61
Hellmore v. Smith (2) (1886), L. R., 35 C. D., 455. 26
 CCAL's Lex Populi (Issue: 3) 2018

Courts Act, 1971 empowers the apex court to punish for contempt of court, with no
protection to judges.
The discretion given to judges in determining what contempt is and how to punish it
has led scholars to argue that the contempt power gives too much authorization
power to judges.
The judiciary is the immaculate interpreter of justice in tandem with learned legal
practitioners. "Contempt of court" literally amounts to "legal blasphemy" so any
attempt to denigrate top judicial officers should be nipped in bud at the very outset.
But it does not mean that judges are above law and are free to arrogate legal power to
misuse them whimsically. From the above, it is clear that the contempt of court
jurisdiction is not exercised to protect the dignity of an individual Judge, but to
protect the administration of justice from being maligned and with respect to a
defamatory attack on a Judge is concerned, it would be open to him to proceed
against the libeler in a proper action, if he so chooses. Judiciary is an indispensable
tier in the administration of justice. Judiciary has special role in the society. It
deserves protection against baseless criticisms against itself.

27
CCAL's Lex Populi (Issue: 3) 2018

Subhajit Debnath, LL.M. (CAL)

5. Judicial Corruptibility in India: A Brief View

'Judicial Corruptibility' an imperative phenomenon today suffers from lack of
diligent research. Everybody concurs that judgements and interim orders are not to
be traded with. However, adjacent concepts await further study. Presumably,
pervasive corruption in our government has resulted in such judicial corruption.
Several judges, jurist and academicians have lamented the same.
Arguably, the corruption is rooted in the District Courts which through the annals of
time have reached the corridors of High Courts. In similar parlance, corruption has
intervened at the frontiers of the Supreme Court. These meshed narratives are
varied. For instance, an allegation of corruption is difficult to be substantiated,
therefore intricately difficult to establish guilt beyond a reasonable doubt. Besides,
these allegations are mostly anecdotal and such 'corruption' is very rarely
'conceptualized'.
According to Lord Atkin, 'justice is not a cloistered virtue'. On a similar note Lord
Denning connoted, 'it must suffer the scrutiny and outspoken comments of
ordinary men'. Today, complex arguments are being made in the public fora as to
what 'acts specifically amounts to corruption by a judge'. These arguments are varied
and intriguing.
Taking cue from K Ramaswany, J. (1995) it can be construed that 'criticizing conduct
of a judge or the Court per se is not contempt if such views are expressed in fair and
good faith not related to the personal attributes of a judge or the Court'. In this
milieu, the Supreme Court observed in Transparency International and Centre for
Media Studies (2017) that 'a pertinent research on judicial corruptibility provides a
scope to address the malady of judiciary in India'. Accordingly, 'the law of contempt
will not 'ordinarily' extend to such matters'. Arguably, there may be some relation
between judicial corruptibility and workload delays. Judicial corruption is a somber
threat to our individual freedoms besides inimical to judicial independence and
desired societal order. The constitutional jargon for impeaching judges need not be
so politically cumbersome.

28
 CCAL's Lex Populi (Issue: 3) 2018

VI. QUIZ

1. What does Part XI of the Constitution of India deal with?

i. Municipalities
ii. Relations between Union and States
iii. Citizenship
iv. Fundamental Rights

2. How many appendices are there in the Constitution?

i. 8
ii. 11
iii. 5
iv. None of the above

3. The Fundamental Rights enshrined in Part IV of the Constitution are based on

which of the following?
i. Bill of Rights of the United States of America.
ii. Weimar Constitution.
iii. Ideas that emerged during the French Revolution
iv. Irish Constitution

4. Which of the following states does not have two Houses?

i. Tamil Nadu
ii. Maharashtra
iii. Karnataka
iv. Jammu and Kashmir

5. Which of the following is the main Standing Committee of Lok Sabha?

i. Committee on Public Accounts
ii. Estimates Committee
iii. Committee on Public Undertaking
iv. All of the above

6. Which amendment to the Constitution gave full statehood to Arunachal Pradesh?

i. The twenty first amendment
ii. The thirty fifth amendment
iii. The fifty fifth amendment
iv. The sixty fifth amendment

29
CCAL's Lex Populi (Issue: 3) 2018

7. The idea of Concurrent list is taken from the Constitution of which of the
following Countries?
i. Ireland
ii. Australia
iii. France
iv. Germany

8. Which of the following cannot be null during National Emergency?

i. Article 14
ii. Article 31 and 32
iii. Article 20 and 21
iv. Article 21 and 22

9. Which of the following is not matched correctly?

i. Article 312- Functions of Public Service Commission
ii. Article 110- Money Bill
iii. Article 136 – Special Leave Petition
iv. Article 12 - State

10. Which of the following is called the "mini constitution"?

i. 42nd Amendment
ii. 44th Amendment
iii. Government of India Act, 1935
iv. Not Specified

Answers: 1. (ii); 2. (iii); 3. (ii); 4. (i); 5. (iv); 6. (iii); 7. (ii); 8. (iii); 9. (i); 10. (i)

30
 CCAL's Lex Populi (Issue: 3) 2018

VII. TEAM OF LEX POPULI

Faculty Members:
• Dr. Avinash Bhagi, Asst. Prof. of Law
• Dr. Divya Tyagi, Asst. Prof. of Law
• Mr. Shashi Bhushan Sharma, Assistant Prof. (Research)
• Ms. Ritushree Khandelwal, Teaching and Research Associate (Law)
• Ms. Anu Mishra, Teaching and Research Associate (Law)

Student Members:
• Aditya Gor, Batch: 2015-20
• Pragya Jain, Batch: 2016-21
• Samira Mathias, Batch: 2015-20
• Shivdutt Trivedi, Batch: 2014-19
• Torsha Dasgupta, Batch: 2014-19

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Centre for Constitutional and Administrative Law
Gujarat National Law University
Attalika Avenue, Knowledge Corridor, Koba, Koba (SUB P.O) Gandhinagar - 382426, Gujarat, INDIA
Website: www.gnlu.ac.in E-mail: [email protected] / [email protected]
Phone No. : +91-79-23276611/23276612