Constitutional Law Answers

25/02/2016

All are cordially invited!

15/02/2016

Question from Aakash Laad - What is the present legal status of live in relationships in India, and is there any bill or any act which has been proposed by the parliament in this matter?
Our Answer-
There is no statutory provision in India that criminalise live in relationships as such. The problem was mostly social in nature. In Lata Singh v. State of U.P. [AIR 2006 SC 2522], it was observed that a "live-in relationship between two consenting adults of heterogenic s*x does not amount to any offence (with the obvious exception of `adultery'), even though it may be perceived as immoral. A major person is free to marry anyone she likes or live with anyone she likes". The major landmark in this realm is the judgment delivered by the apex court in S. Khushboo v. Kanniammal [2010]. Here the cout observed that while it is undoubtedly true that in India, marriage is an important social institution, it is also true that many individuals of the contemporary Indian society view relations outside the marital setting as a normal occurrence. It was further held that "Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy." It is true that a nuptial bond results in various rights like those of succession, maintenance etc. governed by the various personal laws/civil codes [eg. Hindu Marriage Act, Special Marriage Act, etc.] in force. Quite obviously, a live-in relationship fails to confer these rights on the parties as these laws, in most cases, expressly requires a ‘marriage’ for their application. Nevertheless the Protection of Women from Domestic Violence Act has included women living in such relationships under its ambit. So, if women participating in a live in relationship face domestic violence in any form, they may claim maintenance and other remedies available through the PWDVA.

09/02/2016

Question from Bastele Mahendra Jhakday: What would be the present position of the recent enactment related to parliamentary provision for cigarette and to***co amendment bill?

Our Answer:

The Union Ministry of Health and Family Welfare in January 2015 proposed the Ci******es and other To***co Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) (Amendment) Bill 2015 (COTPA). Though the bill is still in its draft stage it proposes some major reforms to regulate the use of to***co by the general public. Some of the major changes that the bill tries to introduce are the ban on-site advertising of to***co products, ban on the spitting of to***co products, increased fine for offenders and establishment of a National To***co Control Program among others. Thus, the bill seeks to substantially amend COTPA and if passed, it will be another major step in the prevention of To***co products which is beneficial for public health and well-being.

16/01/2016

Question by Bastele Mahendra Jhakday

Are defamation laws ultra vires to the Constitution of india? Do they violate freedom of speech? Can a govt. Impose restrictions on media by passing circular with directions to prosecution machinery to file defamation cases against anti-govt. Articles? Or it has to be done by passing a new act?

Our Answer:

As the legal position stands presently, the question of whether defamation laws are ultra vires the Constitution of India hasn’t yet been adjudicated upon clearly by the courts in India (R. Rajagopal v. State of T.N., 1994 SCC (6) 632). The petition in the case of Foundation for Media Professionals v. Union of India ((2015) 9 SCC 252), is still pending (along with the petition filed by Subramaniam Swamy), wherein the Supreme Court is set to adjudicate this question. The question was earlier set to be decided in the case of N Ravi v. Union of India ((2007) 15 SCC 631), but the case was subsequently withdrawn.
Until the law allows prosecuting media for defamation, the government can pass circulars directing the prosecution machinery. However, if the law is silent on the same, restrictions cannot be imposed on media by mere circulars or other delegated legislation.

11/01/2016

Question by Jayant Umesh Karn
Is a minority educational institute recognized under National Commission for Minority Education Institutes Act, a State under Article 12?

Our Answer:

According to Article 12 of the Constitution, State includes “the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” The term “other authorities” has been the focus of much debate and judicial interpretation. For the purpose of this query, we have to refer to the recently settled jurisprudence on the fourth category of Article 12. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, a seven judge bench of the Supreme Court had held that if a body was financially, functionally and administratively dominated by the control of the government and if such control was found to be pervasive in nature, then the body would fall under the term “other authorities” and consequently, the ambit of Article 12. The test has been affirmatively referred to in Zee Telefilms v. Union of India, wherein the BCCI was held to be outside the purview of Article 12 by the Supreme Court. In the present case, the minority institutions registered under the National Commission for Minority Educational Act, 2004 (NCMEI) will not qualify as State as they will not come under the ambit of Article 12. According to the control test enunciated under Pradeep Kumar Biswas, a body in order to be State has to be financially, functionally and administratively dominated by the control of the government and such control has to be pervasive in nature. Moreover it is pertinent to note here that in the Ajay Hasia case, the five judge bench concluded that the enquiry, about whether a body falls under the definition of State under Article 12, should be about the reason behind bringing the body into existence and not about how the body was born. Therefore, the existence of a body by virtue of it being formed under a statute or by a statute is immaterial in nature.
In the present case, the Act in contention (NCMEI) does not entail any such provisions for any form of control over the functioning of minority educational institutions by the commission formed under it. Further, it does not talk about the any financial aid or administrative aid to be provided to minority institutions formed under this Act. Section 11 and 12 elucidate the functions and powers of commission with respect to the universities formed under this Act. According to Section 11 of the Act, the powers of the commission, with respect to a Minority University under NCMEI, include dealing with disputes, complaints regarding deprivation or violation of rights of minorities to establish and administer educational institutions of their choice and any dispute relating to affiliation to a University as well as to decide upon the status of any institution being a minority institution and declare it as such. In addition to this, the commission can make recommendations to the government for the effective implementation of programmes and schemes relating to the Minority Educational Institutions. Similarly, Section 12 of NCMEI empowers the commission to settle a dispute relating to the affiliation of a minority educational institute. All the above mentioned functions and power show that the commission does not exercise a PERVASIVE control over any minority educational institute registered under NCMEI in any of the three ways (financially, functionally and administratively) as enunciated by Pradeep Kumar Biswas.

02/01/2016

29/12/2015

Question by Bastele Mahendra Jhakday
How far is the encroachment by centre on state list acceptable? For example, The drugs and cosmetics act 1940 is a pre-constitution law enacted by centre. It is related to health , which is a state subject.

Our Answer:

On the topic of federalism in India, the division of legislative power between the Centre and the State is an elaborate, often convoluted issue. Article 246 provides for the division of matters into three lists- the Union List (List I in the Seventh Schedule, that the Parliament can legislate upon); Concurrent List (that both Centre and State can legislate upon, but in case of conflict the Central law prevails under Article 254); and the State List (that State Legislatures can make laws on).

The Union making laws on State subjects is provided under Article 249, wherein the Rajya Sabha can pass a resolution to empower the Parliament to legislate on subjects in the State List. Such resolutions can last for a year and can be renewed for a year at the end of the period. In case of Emergencies, the Union is competent to make laws on subjects included in the State list. Where any law is made under Article 249 or Article 250, which is contrary to a preexisting or new state law on the same issue, Article 251 clarifies that the State law shall be inoperative to the extent of the repugnancy. Article 256 also allows the Centre to legislate on State subjects when there is failure of constitutional machinery in the state. The Union also has the ability to legislate for giving effect to international agreement under Article 253 of the Constitution. In addition, Article 252 allows the Union to legislate on State subjects when the legislatures of two or more states believe it beneficial that the Centre legislate upon an entry in the State list. Such laws can only be amended by the Union Parliament and not by State legislatures. These provide, within the Constitution itself, scope for the Union to make laws on entries in the State List.

The question comes up when the Centre enacts a law based on a subject in the Union List but it appears to encroach upon an entry that is part of the State List. The position in such cases is that the Court scrutinizes the Act as a whole and the real nature and substance of the enactment. As stated in Bharat Hydro Power Corp. Ltd. & Ors vs State Of Assam & Anr on January 7, 2004, if the substance of enactment falls within Union List then the incidental encroachment by the enactment on the State List would not make it invalid. This is known as the doctrine of pith and substance and if the true nature of the Act is such that the body making the Act has the legislative power to legislate on that substance, it is deemed to be Constitutional, as The State Of Rajasthan vs Shri G. Chawla And Dr. Pohumal established in 1958.

More specifically to your question, for pre-constitutional laws, Article 13 provides that “All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.” The Courts have read this with Article 372, which states that “subject to the other provisions of this Constitution, all the laws in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.” These clearly show that there is a presumption of constitutionality in favor of pre-constitutional laws. For such laws to be deemed unconstitutional, they must be expressly challenged or repealed as being in contravention to Constitutional principles, such as being opposed to Articles 14, 15, 19 of the Constitution. In the absence of incompatibility with the Constitution, the doctrine of Eclipse does not apply and such laws continue to exist as long as they are in accordance with Constitutional aims, such as the Drugs and Cosmetics Act, 1940- which has in fact notifications issued locally to cater to changing needs.

20/12/2015

Question by Jayant Umesh Karn
Can an Article in the Constitution be unconstitutional?

Our Answer:

For this answer, we are referring to the unamended Constitution (as adopted on 26th November 1949) as "original Constitution".

The original Constitution is the fountainhead from which the Supreme Court derives its authority. Therefore, the Court does not generally deem Articles in the original Constitution as as “unconstitutional”.

However, its power with respect to amendments to the Constitution is different. As established in Kesavananda Bharati v. State of Kerala, when an amendment to the Constitution is found to be in violation of the Basic Structure of the Constitution, such an amendment can be struck down by the Supreme Court as “unconstitutional”. An example of this would be when the amended Article 368(4), which created unlimited amending power of Parliament and Article 368(5), which took away Judicial Review, were held to be unconstitutional. It should be noted that when the Supreme Court strikes down an amendment, the Constitution does not revert to the unamended version. The unconstitutional amendment is deemed to be Eclipsed. This means that the unconstitutional amendment still forms a part of the text of the Constitution but its enforcement is suspended.

In conclusion, the Supreme Court can deem Articles introduced via amendments into the Constitution as unconstitutional.

18/12/2015

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17/12/2015

Earlier this year, the Constitutional Law Society (CLS) of West Bengal National University of Juridical Sciences created a cyber hotline known as