Vivek Narayan Sharma vs Union of India (2023)
Writ Petition (Civil) No. 906 of 2016
Date of Judgment – 2 January 2023

In January 2023, the Supreme Court gave its verdict on the constitutionality of the notification dated November 8, 2016, according to which notes of Rs. 500 and Rs. 1000 ceased to be legal tender (or the demonetization of these notes). The notification was promulgated by virtue of the exercise of power under section 26(2) of the Reserve Bank of India Act. On two earlier occasions, in 1946 and 1978, the Indian currency was demonetized. However, on those two occasions, it was done through Parliament by enacting a law and not through the exercise of power under the RBI Act of 1934.

This law article analyses the Supreme Court judgement in the demonetization case in light of the issues raised, and arguments advanced.

Issues

These were the issues that were raised before the Supreme Court in the case of Vivek Narayan Sharma vs Union of India (demonetization case):

• Whether the notification dated November 8, 2016, which demonetized the currency notes of Rs. 500 and 1000 is ultra vires (beyond the powers of) the Constitution?
• Whether the impugned notification violates section 26(2) of the Reserve Bank of India Act, 1934?
• If section 26(2) of the RBI Act permits demonetization, does the said provision suffer from excessive delegation?
• Whether the implementation suffers from procedural or substantial unreasonableness?
• Whether the judiciary may review the fiscal and economic policies of the government?

Arguments

From Petitioner’s Side

The petitioners in the Vivek Narayan vs Union of India case majorly advanced the following arguments against the impugned notification.

1. It was brought to our attention that the power of demonetization comes from section 26(2) of the RBI Act. It says:

“On recommendation of the Central Board, the central government may, by notification in the Gazette of India, declare that, with effect from such date as may be specified in the notification, any series of bank notes of any denomination shall cease to be legal tender save at such office or agency of the Bank and to such extent as may be specified in the notification.”

It was argued that the use of ‘any’ in the provision permits only a particular series and not all. Therefore, all series of notes couldn’t be demonetized by the exercise of power under section 26(2) of the RBI Act. This exercise could be performed only by passing a law, as was done on earlier occasions.

2. It was argued that if the above section gives the power to demonetize all series of bank notes, then the power is unbridled and arbitrary and, therefore, unconstitutional, violating Articles 14, 19, and 21 of the Constitution. Also, the conferring of such wide powers amounts to excessive delegation and is unconstitutional accordingly.

3. It was alleged that the proper procedure for demonetization was not followed. The Central Board of the Reserve Bank of India is required, before taking the decision, to properly weigh all the pros and cons and then only take the decision. But here, the decision-making was rushed. Also, as per the RBI Act, the proposal to demonetize should emanate from the Central Board and not from the central government. However, the impugned notification of the procedure emanated from the central government. Therefore, the order is liable to be set aside on the grounds of patent arbitrariness.

4. It was submitted that the notification failed the proportionality test. The objective of the practise was to curb black money, or fake currency notes, and weed out the use of fake currency notes for financing supervising activities such as drug trafficking and terrorism. However, it utterly failed to achieve these objectives. Instead, it caused enormous damage to the economy and to the people.

5. It was also brought to our attention that currency notes are property. Depriving a person of his property amounts to a violation of Article 300A of the Constitution.

From the Respondent’s Side

The Attorney General of India submitted these points as the response:

1. The word ‘any’ means all series of bank notes, because if it did not mean ‘all,’ then technically, the government would be permitted to issue separate notifications for each series but not a common notification for all, which would lead to uncertainty.

2. This is also not a case of excessive delegation. In order to determine whether the case is one of excessive delegation, the nature of the body to which the delegation is made also has to be considered. Here, the delegation is made to the central government and not to any subordinate authority.

3. The decision-making process was also not flawed. The discussion over the issue has taken place over a long period of time, and after considering all relevant factors, the RBI recommended a decision.

4. The test of proportionality comes from Article 14 of the Constitution. With the notification, there was a significant reduction in black money, an increase in taxpayers, a substantial growth in PAN numbers, and a substantial rise in UPI payments. Therefore, it can’t be said that the objective that the notification sought to achieve was disproportionate to the hardship it caused.

5. To refute the right to property argument, it was submitted that the said right is not absolute and can be succumbed to for the greater public good.

Judgement and Analysis

To derive the meaning of the word ‘any,’ the Supreme Court applied the rule of purposeful interpretation. Accordingly, the meaning of any statutory phrase has to be decided by considering the object and scheme of the legislation and the context in which the word appears.

According to the RBI Act, the Central Board of the RBI has been assigned a primary role in managing the monetary policy and currency notes in the country. And the central government is to take the decision after the recommendation of the Central Board. Therefore, it couldn’t have been the intention of the legislature to give restricted power to the Board; otherwise, it would lead to a chaotic situation. Hence, in the instant case, any means all.

To determine the question of excessive delegation, the Court referred to the case of Hamdard Dawakhana (Waqf) Lal Kuan, Delhi vs Union of India (1959). Accordingly, the legislature can’t delegate essential legislative functions. Here, the delegation has been made to the central government, which is the highest executive body of the country. Therefore, this is not a case of excessive delegation.

To determine whether the decision-making process is flawed, the court concluded that the matter under impugned notification had been under discussion between the central government and the RBI for the last six months. The RBI Board (or the Reserve Bank of India Board) recommended the proposal only after considering all relevant factors. Therefore, the decision regarding the withdrawal of legal tender was based on an informed decision. The argument that the proposal emanated from the Government and not from the Board was also rejected by the Supreme Court.

To determine the proportionality test, the court held that, according to this doctrine, whenever any constitutionally protected right is limited or restricted, there have to be necessary and sufficient conditions. In the instant case, considering the purpose of the Act, it can’t be held unconstitutional on the ground that it caused hardships to the people. Also, the right to property is not absolute and can yield greater public good.

The Supreme Court also delineated the scope of judicial review for policy decisions of the executive and held that courts only need to confine their decisions to the legality of the decision. The judicial review will be used only to decide abuse of power, breach of power, and violation of the rules of natural justice. The court can’t be an expert in cases involving economic policies. There are matters over which courts and lawyers can hardly be expected to know. Therefore, courts in those circumstances don’t unnecessarily interfere.

On the basis of the above-mentioned points, the court considered the impugned notification to be constitutional in nature.

Conclusion

The majority opinion in the instant case held the notification to be constitutional.

However, the minority judgment given by Justice BV Nagarathna held that the practice was to be carried out through a law made by Parliament, as has been held on earlier occasions, and not through a notification. There was a procedural irregularity, and hence, the decision is liable to be struck down.

Though the Supreme Court has held the decision to be constitutional, the judgment gave an extensive review of the administrative action of the executive.

Vivek Narayan Sharma vs Union of India – Demonetization Case Explained
Naina Agarwal

With Russia threatening Ukraine to use nuclear weapons against it if it doesn’t surrender, the preparedness of the world to restrain nations from using nuclear weapons has been put in jeopardy. The use of nuclear weapons is alarming and distressing not only for Ukraine but for the whole world.

This law note aims to present before you the international efforts made to prevent nation-states from using and proliferating nuclear weapons and an analysis of India’s policy towards the development and proliferation of its nuclear weapons.

What Are Nuclear Weapons?

Nuclear weapons are those weapons that are so dangerous that their use may destroy mankind. They generate a huge amount of energy in the form of blasts and radiation. Nuclear weapons create an explosion in the form of a fireball, and it takes not even ten seconds for this fireball to reach its maximum size. Even a single nuclear bomb is enough to kill millions of people if it is dropped over a city.

These weapons have both immediate and long-term effects. While immediate results include death, severe burns, internal damage, and lung injuries, the long-term effects include cancer and genetic damage.

Therefore, the use of these weapons is not frequent. They were only used when the USA detonated two bombs on Hiroshima and Nagasaki after World War II in 1945. Since then, international efforts have been made to regulate the use of these weapons.

It is also to be noted that these nuclear weapons have positive and beneficial uses too. They may be used in medical science to create energy, generate electricity, and provide clean energy. This is popularly known as the peaceful use of nuclear energy.

Need for International Law

International law regulates the behaviour and conduct of nation-states (countries). The need for such a law has arisen as today’s science and technology have made the world a global village.

Problems of terrorism, cybercrimes, trafficking, money laundering, the performance of contractual obligations in carrying out trade or business, global warming and other environmental threats, and issues related to intellectual property rights are not limited to national borders.

Therefore, international law seeks to address these issues by promoting international peace & security and friendly relations among nation-states. The said international law aims to create a balance between the protection of the sovereignty of the nations on the one hand and the need to synchronise the actions of nation-states on the other hand, which is required for the peaceful existence of mankind.

Countries have acknowledged the need for a superior international authority to regulate and manage the actions of nation-states. This is reflected in the establishment of the United Nations, the world’s largest international organisation, in 1945. The primary object of the organisation was to maintain international peace.

International law also functions by way of the formation of treaties, whether multilateral or bilateral, wherein nation-states that sign a treaty commit to abide by it.

International Treaty for Regulating Nuclear Weapons

The generation or proliferation of nuclear weapons is regulated by an international treaty known as the Non-Proliferation Treaty (NPT) or Treaty on the Non-Proliferation of Nuclear Weapons.

Soon after World War II, it was realised that an unregulated nuclear world would only be a menace to people, and accordingly, the treaty to prevent the harmful use of nuclear weapons was signed.

The treaty was signed in 1968 and implemented in 1970. This treaty divides the states into nuclear states and non-nuclear states. Nuclear states are those that developed nuclear weapons or nuclear explosive devices before January 1, 1967, which are China, France, Russia, the USA, and the UK; the others are non-nuclear states.

Broadly, to prevent the proliferation of nuclear weapons, the treaty prohibits non-nuclear states from developing and producing nuclear weapons and simultaneously forbids nuclear weapon states from transferring the technology to non-nuclear states.

In return, the non-nuclear states would get the know-how to produce nuclear technology from nuclear states for peaceful purposes. The treaty itself acknowledges the right of non-nuclear states to develop nuclear weapons for peaceful purposes.

The nuclear-weapon states have been prohibited from using nuclear weapons against non-nuclear states except in response to a nuclear attack. The treaty also aims for complete disarmament, i.e., reducing the number of weapons to zero. Around 191 nations are parties to the treaty.

India, Pakistan, Israel, and North Korea are the only countries that possess nuclear weapons but have not signed the treaty.

Why Is India Not a Signatory of the Non-Proliferation Treaty?

India declared itself a nuclear weapon state in 1998. India has not signed the Treaty on the Non-Proliferation of Nuclear Weapons, as it considers it to be discriminatory in nature. India considers it to be biased against non-nuclear states as it allows only nuclear-weapon states to develop and generate their weapons. Also, for security reasons, India is reluctant to sign the treaty.

In 1962, after India’s loss to China, India got an impetus to develop its nuclear weapons. The war with Pakistan in 1965, with China supporting Pakistan, further accentuated the need. India could also not rely on the USA and Russia for its border security.

Accordingly, India chose to launch its first nuclear test, Pokhran-I, in 1974. Pakistan and China were already equipped with nuclear weapons, and against their aggressive policies, India couldn’t afford to be without nuclear weapons.

India conducted its second nuclear test, Pokhran II, in 1998. It demonstrated India’s capacity to use nuclear weapons for military purposes. India’s action was condemned worldwide.

At present, India’s nuclear policy is focused on creating a deterrent for countries to use nuclear weapons against it, and India would use its nuclear weapons only in defence and not as an aggressor.

Conclusion

Though India is the land of Buddha, who has always advocated for peace, for its own protection, and to protect its own territoriality and sovereignty, India needs to create a deterrent among its neighbours.

The threat of Russia to Ukraine already shows the vulnerability of non-nuclear weapons and how nuclear-armed states may use weapons against them. It again emphasises how India is justified in not signing the Treaty on the Non-Proliferation of Nuclear Weapons.

Nuclear Weapons Policy of India With Respect to International Law
Naina Agarwal

Indian people’s demand to bring back the Kohinoor diamond hits the news headlines frequently. With the death of Queen Elizabeth II, the people of India again raised their demand to bring back the Kohinoor diamond, an Indian antiquity. It is not only about the diamond, but there are other antiquities too, like Shivaji’s sword and Vagdevi of Dhar, which are placed in London’s museums, and a demand is made time and again to bring those back.

This law post seeks to answer the question of whether India has a legitimate claim to bring back its Kohinoor diamond and other antiquities lying in different countries.

What Is Antiquity?

Antiquity has been defined under section 2(a) of the Antiquity and Art Treasure Act, 1972. According to this, antiquity means any coin, sculpture, painting, epigraph, or object that is a piece of science, literature, art, religion, or historical interest and has been declared so by the central government of India. Such things must not be less than 75 years of age.

These antiques, like the Kohinoor diamond, Shivaji’s sword, and Vagdevi of Dhar, are cultural property and the heritage of a nation. These are not only unique and valuable but also very significant in retaining the cultural identity and history of a nation. Every country has the right to protect and preserve its cultural property and heritage.

Laws Governing Antiquities

The right to preserve and retain one’s cultural property has been recognised internationally and nationally.

United Nations Educational, Scientific, and Cultural Organisation’s (UNESCO) 1970 convention is an international effort wherein the member nations agree to prohibit and prevent the illicit import, export, and transfer of ownership of cultural property.

The convention aims to promote the return and restitution of cultural property and to promote peaceful societies where solidarity is strengthened.

India is also a party to the convention and, in line with this convention, has promulgated a national law as the Antiquities and Art Treasure Act of 1972. This Act seeks to regulate the trade in antiques, fraudulent smuggling, and the trade in antiquities and their acquisition, which have been illegally taken from India.

To determine whether India could bring back the diamond, one has to go back in time and see how ownership of the diamond was passed.

History of the Kohinoor Diamond

According to the sources, the Kohinoor diamond was extracted from the Guntur district in Andhra Pradesh by the Kakatiya dynasty from around 1100 to 1300.

After that, the diamond went to each succeeding ruler of the Delhi Sultanate. With the Mughal invasion, the diamond was occupied by the Mughal rulers. The diamond has also been given a reference in the Babarnama of Babur.

With the advent of the British in India, the diamond was taken from India to Britain. At that time, Diamond was with the king of Punjab, Maharaja Ranjit Singh. It is said that with the annexation of Punjab, the diamond was manipulatively taken from his five-year-old son, Maharaja Duleep Singh.

Legal Analysis of India’s Claim on Kohinoor Diamond

India may raise its claim on the diamond on the basis of the Art and Antiques Act (1972) and the 1970 UNESCO Convention.

With regard to the transfer of ownership of the diamond, it is said that it was not illegally taken or extracted from India but rather given as a gift. There is no evidence to prove that the diamond was illegally or forcefully taken away from India. Therefore, the demand can’t be raised under national law, as this law would only help in cases of illegal or forceful transfer.

However, the demand may be raised under Article 15 of UNESCO’s 1970 convention. This Article allows state parties to enter into special agreements so as to bring back cultural property that has been taken away from the country of origin for whatever reason, even before the enforcement of this convention. Article 15 of UNESCO’s 1970 convention would be applicable even when the transfer has been made by way of a gift. Therefore, it is only by virtue of this Article that India may take its diamond back. It is through talks, diplomacy, and strong bilateral relations that India may persuade London to enforce such a special agreement.

Conclusion

The historical, cultural, and market value of these antiques can’t be denied. The Indian Government is making consistent efforts to bring back its antiques. Agreements have also been signed with the US government during the recent Prime Minister’s visit to the USA. Therefore, one should not be completely hopeless about India getting back its Kohinoor diamond.

Read Next: Nuclear Weapons Policy of India With Respect to International Law

Does India Have a Legitimate Claim to Bring Back the Kohinoor Diamond?
Naina Agarwal

The recent pronouncements by the Supreme Court and some High Courts in India on the reproductive rights of women have given India an image as the protector of women’s rights on reproductive issues. The Supreme Court, through its interpretative approach, has widened the ambit of these rights.

This law note aims to put before you all the statutory provisions, the interpretation of the courts, and a comparative study with other countries regarding reproductive rights in India.

What Are Reproductive Rights?

Reproductive rights mean the right to make reproductive choices freely, i.e., to reproduce or not, to terminate/abort the pregnancy or not, to carry the pregnancy to its full term or not, to bear and raise the child or not, and to use contraceptives or not. It also includes the choice to decide the number of children, their spacing and timing, and also to have access to reproductive health.

Historically, before the 18th century, around the world, these reproductive rights were considered essentially male property rights. Women were not allowed to terminate their pregnancies without the consent of their husbands.

The number of children a woman would carry, their timing, and spacing — all such issues were decided by the governments of their respective countries as a means of population control or greater public good. There was no specific statutory regime to regulate pregnancies and abortions.

The 19th century witnessed two completely opposite movements regarding reproductive choices. One movement was against the idea of abortion. It was argued that abortion is immoral and unethical as it takes away the life of a human being (the unborn child) without any just cause. Also, it poses a great danger to the life of the mother as it is practised without due procedure and by unprofessional medical practitioners.

Conversely, another movement stressed giving women greater autonomy to make decisions regarding their bodies. They stressed the importance of legalising abortions in certain situations and the liberalization of abortion laws.

It was against this background that many countries in the 20th century enacted abortion laws and policies by adopting a middle path between the two extreme views mentioned above. These laws differ from country to country, though all have broadly agreed upon allowing abortion to save the mother’s life.

Related: Maternity Benefits in India Under Code of Social Security

Statutory Provisions Governing Reproductive Choices in India

The right to make reproductive choices is broadly governed by the Indian Penal Code, 1860, the Medical Termination of Pregnancy Act, 1971 (MTP Act), and the Constitution of India, 1950.

Indian Penal Code

The IPC penalises causing abortion of an unborn child under section 312 if it has not been caused in good faith to save the mother’s life. The section will be applicable as soon as the gestation period (time between conception and birth, during which the embryo or fetus is developing in the uterus) starts. And if the woman is quick with the child, i.e., the movement of the child is felt inside the body, the punishment would extend to seven years of imprisonment.

Medical Termination of Pregnancy Act

However, section 312 of IPC is subject to the provisions of the Medical Termination of Pregnancy Act. This Act allows a woman to terminate her pregnancy under certain circumstances by a registered medical practitioner.

According to section 3 of the Act:

• if there are apprehensions (fear) that the continuation of the pregnancy would cause grave risk to her mental or physical health; or
• that the child, if born, may suffer from a physical or mental abnormality; or
• that the child is the result of the failure of any contraceptive device; or
• that the child is the child of a rape victim,

then in those circumstances, a woman is allowed to terminate her pregnancy if the length of pregnancy doesn’t exceed 24 weeks.

This limitation of 24 weeks will not be applicable if the child has been diagnosed with a substantial foetal abnormality.

Must Read: What Are the Changes Made by the Medical Termination of Pregnancy Amendment Act of 2021?

Indian Constitution

Under the Constitution of India, the right to make reproductive choices flows from Article 21, Article 14 and Article 15 and is a product of judicial interpretation.

In the case of Suchita Srivastava vs Chandigarh Administration (2009), the Supreme Court, while recognising the woman’s right to privacy, dignity, and bodily integrity, held that the right to procreate or abstain from procreating and termination of pregnancy all come under the dimension of personal liberty under Article 21. In lieu of exercising these rights, a woman may make decisions concerning her body.

However, the said choice is not unlimited and may only be exercised within the limits of the Medical Termination of Pregnancy Act, as the State also has a compelling need to protect the lives of the unborn.

Judicial Pronouncement on Reproductive Rights

As mentioned in the preceding paragraph of this article, the judiciary, through its interpretation, has widened the scope of statutory provisions to bestow on women greater reproductive rights.

In X vs Principle Secretary of Health Services, the Supreme Court held that these provisions of the Medical Termination of Pregnancy Act require a liberal and purposeful interpretation, and therefore, pregnancy may be terminated by any woman irrespective of her marital status, whether married, unmarried, divorced, or widowed. The choices related to the family, marriage, procreation, and sexual orientation are integral to personal liberty.

Pregnancy may also be terminated by a couple in a live-in relationship. In S Khushboo vs Kanniammal (2010), it was clarified that though marriage is a recognised and important social institution, certain individuals don’t hold the same view. In those cases, sexual relations outside the marital wedlock are also acceptable.

Also, some High Courts like Bombay and Delhi have, extended the limits of 24 weeks and have allowed women to terminate their pregnancies beyond this time period.

Must Read: Is an Unmarried Woman Legally Allowed to Have an Abortion in India?

India and the World – A Comparative Analysis of Reproductive Rights

India has witnessed progress in not only recognising but also protecting and upholding women’s reproductive rights. All the countries in the world recognise a woman’s right to abort the baby to prevent danger to her own life. However, relatively few countries allow a woman to exercise this right to prevent danger to her physical or mental being or terminate pregnancies resulting from rape or the failure of contraceptives.

For example, India’s neighbours like Bangladesh allow termination of pregnancy only to save the life of the woman, and Pakistan allows it to save the woman’s life when it causes a great risk to her physical and mental being.

Contrary to this, some countries like Canada, China, Denmark, and some European countries allow this pregnancy termination at the women’s request. Women in those countries exercise full autonomy.

In the United States of America, until recently, the case of Roe vs Wade was widely celebrated as it recognised the right to abortion as a constitutional right and an inherent feature of personal liberty. The decision was overturned in Dobbs vs Jackson, and it categorically denied any such right. The decision is an aberration in that the countries are taking positive steps to extend these rights further.

Conclusion

India’s balancing approach, i.e., recognising women’s right to terminate their pregnancy on the one hand and imposing reasonable restrictions to save the life of the unborn on the other, is appropriate and relevant. The greater autonomy granted by the judicial pronouncements has further extended the scope of the exercise of these rights in hitherto patriarchal societies.

Read Next:
1. Most Important Legal Rights of Women in India
2. What Are the Laws Related to Surrogacy in India?
3. Indecent Representation of Women in India – Laws and Cases

Reproductive Rights of Women in India
Naina Agarwal

The recent early release of 11 convicts on August 15, 2022, who were sentenced to life imprisonment for raping a five-month pregnant woman and murdering seven members of her family (Bilkis Bano case), has sparked outrage among the masses over the quantum of punishment they received for such heinous crimes.

It also casts a shadow of doubt over the prescribed punishment for such atrocious and abominable offences under the criminal justice system. Moreover, it begs the question of how, for the same offence, the punishment can range from the death penalty (as in the Delhi gang rape case) to just fourteen years of imprisonment in the instant case.

This law article clears up these issues by simplifying the laws of remission and commutation of sentences.

What Is Remission and Commutation of Sentence?

Awarding sentences and punishment is not the sole prerogative of the courts and judges in India. The power of the executive in these matters has also been recognized constitutionally and statutorily. The executive may use these powers to grant pardon or remit, commute, respite, or reprieve any sentence or punishment imposed by a court of justice. All these terms have different meanings.

Pardon

When a sentence is pardoned, both the conviction and sentence are set aside, and no disqualification is attached to the convict. It means it would be taken as if no offence was committed by the person concerned.

Commute

Commutation changes the nature of the sentence to a lighter one. To illustrate, a sentence of death may be turned into life imprisonment or a sentence of rigorous imprisonment into a simple sentence.

Remit

In the case of remission, the nature or character of the sentence remains the same; however, the term is reduced. Here, a sentence of life imprisonment may be reduced to fourteen years.

Reprieve

Reprieve also denotes awarding a lesser sentence but on the grounds of physical disability or pregnancy of the convict.

Respite

Respite simply stays the execution of a sentence for a temporary period to prefer an appeal in sentences of death or to seek the commutation or remission of sentence.

It is to be noted here that the executive exercises the above powers not fancifully or arbitrarily but reasonably and with statutory limitations, as are discussed in the later sections.

Statutory Provisions to Remit the Sentence

The power of remission has been recognized under the Constitution of India, the Indian Penal Code of 1860 (IPC), the Code of Criminal Procedure of 1973 (CrPC), and the Prisons Act of 1894.

Under Article 72 and Article 161, the Constitution bestows on the President and the Governors of the state, respectively, the pardoning and the above-mentioned related powers.

In the CrPC, these powers (related to remission and commutation of sentence) are mentioned under sections 432 to 435, and in the IPC, under sections 54 and 55, and are to be exercised by the appropriate government. While the IPC serves as a substantive source of these powers, the CrPC prescribes the procedure to exercise these powers, like the opinion of the judge who passed the sentence that is to be taken, the grounds upon which such a decision is to be formed, etc.

The Prisons Act prescribes a remission system based upon certain rules that specify how marks are to be awarded for prisoners based upon which their sentence shall be remitted. The purpose is essentially to reform the prisoners.

Related Law Notes:

• What Are the Pardoning Powers of the Indian President
• Pardoning Powers of the Governor With the Latest Updates and Judgements
• What Are the Differences in Pardoning Powers of the Indian President (Article 72) and the State Governors (Article 161)?
• Mercy Petition – Articles 72 and 161 of the Constitution of India

Difference: Power of Remission and Commutation Under the Constitution, CrPC, and IPC

Here are the differences between the constitutional and statutory provisions relating to the exercise of the above-mentioned powers.

1. Exercise of Power by the Different Authorities

The difference between the constitutional and statutory provisions relating to the exercise of the power of remission and commutation is that, first, under the Constitution, the power is exercised by the President or the Governor, as the case may be, while under the statutes, the powers are exercised by the appropriate government, determined as per section 55A of the IPC or section 432 of the CrPC.

However, the said difference is only chimerical (doesn’t exist in the real sense) or illusionary in nature. Because a parliamentary form of government like India’s doesn’t allow the President or the Governor to take independent decisions, they are instead bound to act upon the advice of the Council of Ministers.

The Supreme Court has repeatedly, through its judgements in Maru Ram vs Union of India, Shamsher Singh vs State of Punjab, and most recently in A.G. Perarivalan vs State of Tamil Nadu, unequivocally clarified the law on this subject by pronouncing that the President or the Governor, while discharging their clemency (mercy) powers under the Constitution, are bound by the advice of the Council of Ministers whether they like it or not. Therefore, either way, it would be the appropriate government that discharged this power.

2. One Provides the Substance and the Other the Procedure

The second and real difference would be that constitutional power is a kind of substantive provision based upon the reformative theory of the criminal justice system. It is the mandate of the Constitution. The CrPC, or the statute, on the other hand, prescribes the procedure to exercise that power.

3. The Power Is Subject to Different Limitations

The third and most significant difference is with respect to the amount of limitation imposed in exercising these powers. The Highest Court explained it in the case of the State of Haryana & Ors. vs Rajasthan Kumar and Bittu. The court clarified that constitutional power is a power of the sovereign, and no conditions are attached to it while exercising the same. However, when the power is exercised by the state government under the CrPC (section 432 or section 433), it is bound by the limitations given under section 433A of the CrPC, which allows remission of sentence only when the prisoner has served at least 14 years of imprisonment in certain circumstances. Additionally, there are certain other circumstances when this power of remission can’t be exercised, and in those cases, “life imprisonment” shall mean imprisonment for the remainder of the natural life of the convicted person. For example, offences committed under sections 370, 376(2), 376AB, 376D, 376DA, and 376DB of the IPC.

However, it doesn’t mean that the President or the Governor enjoy unfettered pardoning powers. The apex court has limited the same in Epuru Sudhakar vs State of Andhra Pradesh by putting it through the filter of judicial review and holding that the exercise of this power is not the fancy or frown of government but must reflect reason, relevance, and reformation.

Conclusion

The criminal justice system of India follows some basic tenets that are in sync with the Indian Constitution and criminal jurisprudence. Majorly based upon two of these principles, the early release of convicts of the Bilkis Bano case has been justified.

The first principle is the principle of protection against ex post facto law. It requires that a criminal law not have a retrospective effect. Therefore, when two remission policies are in force, the policy which is to be considered is when the offence was committed and not what was implemented later on.

Another is the reformative purpose of punishment, which requires that prisoners be given a chance for reformation.

Whatever the government uses to justify its position, the use of remission powers must be reasonable and sound if the public’s trust in the criminal justice system is to be maintained. Furthermore, justice must not only be done but also appear to be done.

Simplifying Remission and Commutation Laws in India
Naina Agarwal

With the Bharatiya Janata Party (BJP) government’s election promise to implement the Uniform Civil Code (UCC) in Gujarat and Haryana, the debate over the need to secure a common and accepted set of governing laws for all communities, regardless of religion, has resurfaced.

The Supreme Court has also emphasised the need to move in this direction on multiple occasions. The Constitution of India itself, under Article 44, directs the State to secure a Uniform Civil Code for the citizens throughout the territory of India. Moreover, such a step arguably would foster the unity and integrity of the nation.

However, can a diverse, heterogeneous and plural society like India, with many religions and cultural practices, be governed by a single homogeneous set of laws without compromising its people’s religious freedoms? Or, can’t there be unity in diversity with people having not only acceptance but also reverence for each other’s cultural and religious beliefs?

These are some of the legitimate questions which run counter to the idea of enacting UCC. This law post aims to help you develop an opinion regarding whether India needs a Uniform Civil Code.

What Is Uniform Civil Code?

Uniform Civil Code strives to replace the various personal laws of all religious communities in matters of marriage, maintenance, inheritance, succession, adoption, custody, divorce, and other family matters with uniform secular laws. In doing so, it is proposed that the best of all religious practices that are most humane, civilised, and adhere to the Constitution be adopted. The idea is to curb all religious practices that disprivilege women and to protect children’s interests.

UCC and the Constituent Assembly Debates

In the Constituent Assembly, Dr B.R. Ambedkar argued that such a provision of uniform Code is desirable but, for the moment, left it voluntary. A consensus could not be formed among the members regarding to what extent personal laws may be abandoned to secure the freedoms of the individuals. Therefore, the provision was made only a directory under Part IV (Article 44) and not given a status of a Fundamental Right under Part III of the Constitution.

UCC vs Right to Freedom of Religion

Article 25(1) of the Constitution guarantees every person freedom of conscience and the right to practice, profess and propagate any religion. Therefore, it is alleged that restricting and abolishing one’s personal religious practises would run counter to the said right.

The Supreme Court has fairly resolved the issue in its various judgments, including as early as 1951 in the State of Bombay vs Narasu Appa Mali. It clarified that social evils should not be allowed to take refuge in customs. Unreasonable and arbitrary practices like Sati, dowry, child marriage, and slavery can’t be accorded for the sake of religious freedom. Also, Article 25 is not absolute and subject to restrictions, namely, public order, health, morality, and other provisions of Part III of the Constitution. It is only as long as any religious practice survives the test of justness and doesn’t violate any Fundamental Right that it may be allowed to be followed.

UCC vs Various Personal Laws

A community’s personal beliefs and convictions shape its personal law, and as a result, they differ. For example:

• Marriage: In Hinduism, marriage is considered sacred. For Muslims, it is a contract. And for Parsis, the registration of marriage is compulsory.
• Adoption: Adoption is recognised in all aspects of Hindu law but not in Muslim law.
• Divorce: In matters of divorce, a relatively easy and relaxed procedure is allowed in Muslim law compared to Hindu law.
• Others: The dissimilarities exist in all other personal matters of guardianship, maintenance and succession too.

In such circumstances, the application of UCC would have to filter out the test of various legal challenges, namely, how would the practice that is the best of all be selected? How, at the same time, do we not infringe on the cultural and minority rights of the communities and the freedom of religion? How do we not undo the idea of fraternity reflected in the Preamble?

An outright enactment of the Code may not only threaten the unity of the nation but will also make the minority communities feel less secure culturally. However, the idea is not to let barbaric, unreasonable, and patriarchal cultural practices run against the Constitution itself. But a secular Code may only be allowed to operate gradually and through a piecemeal approach.

Steps have already been taken in the said direction by both the legislative and the judicial bodies. For example:

• The legal age of marriage for all communities is governed by the Prohibition of Child Marriage Act of 2006;
• For marriage, a secular Special Marriage Act has been enacted;
• For adoption, a secular Act, i.e. the Juvenile Justice Act of 2000, is in force;
• For guardianship, the principle of the best interest of the child governs all matters of guardianship;
• The presumption of paternity under section 112 of the Indian Evidence Act;
• Maintenance provisions of section 125 of the Code of Criminal Procedure are non-religious in nature;
• The age of majority is governed by the Indian Majority Act of 1875 for nearly every matter;
• The Prevention of Children from Sexual Offences (POCSO) Act, 2012, which among other things, is enacted to protect children from acts of sexual assault and harassment, also doesn’t differentiate based on religion.

Judiciary has also interfered time and again to eliminate the cultural practices which have been adverse and unsympathetic to women. For example, the abolition of the Triple Talaq practice of divorce in Muslims and polygamy in Hindus, upholding the guardianship rights of Hindu women, and making registration of marriage compulsory for all, may be considered for those instances. Therefore, even though there is no formal implementation of Article 44, one may easily feel its effects.

Conclusion

In 2016, the government referred the above matter of enacting a uniform Code to the Law Commission. The Commission’s concluding remarks in its consultation paper (which it submitted in 2018) that such a Code is “neither desirable nor needed” sound relevant even today. The Commission also suggested that instead of having a universal set of laws governing personal matters, we may choose to reform the individual personal laws of each community so they don’t infringe on any constitutional rights or tend to be discriminatory in nature. Hence, let pluralism and multiculturalism not suffer as a result of any avoidable or inessential law. If any reform is really required in personal matters, then those must be made with respect to matters governing live-in relationships and homosexual couples.

Read Next: Government Interference in Religious Institutions of Secular India

What Is Uniform Civil Code and Should India Implement It?
Naina Agarwal

Freebies, also known as “Revdi,” refer to the free distribution of goods or services by political parties to entice voters to vote for them or to remain in power.

In general, the term is used negatively to express inessential and superfluous state expenditures on private goods. In the wake of the mounting fiscal deficit of the states, especially in the aftermath of COVID-19, this freebie debate has again gained public attention.

Freebies such as free electricity, bicycles, coloured TVs, mixers, mobile data, unemployment benefits, scooters, washing machines, and so on are largely to blame for the state exchequer turning red. Therefore, it becomes quintessential to determine whether a welfare state is justified in exhausting the hard-earned taxpayers’ money over the creation of private assets. Also, what limitations, if any, could be imposed over these free disbursements by the Constitution of India or any electoral law in the country?

Arguments Against Freebies

It is argued that this free disbursement contravenes various provisions of the Indian Constitution. It violates Article 14, the equality clause, as these are targeted only at a few sections of society and not for all. It contradicts Article 41, which obligates the state to secure certain rights for its people within the limits of its economic capacity and development. But these Revdis have created insurmountable debts for the states. It also disregards Article 162, as the power to make such promises does not fall under the executive power of the states.

When these freebies serve no public purpose, spending on them amounts to a violation of Article 266(3) and Article 282 since money can’t be appropriated out of the consolidated fund for any purpose that is not recognized in the Constitution.

These free assurances are nothing but a form of bribery and, hence, amount to a corrupt practice under section 123(1)(A) of the Representation of the People Act, 1951.

Arguments Supporting Freebies

Contrary to the above arguments, it is advanced that free deliveries advance the preambular ideas and goals enshrined in the Directive Principles of State Policy (DPSPs).

The Constitution envisages the idea of an egalitarian society that aims to secure social justice. The state is duty-bound to meet the basic needs of its people. Articles 38, 39, and 46 obligate the state to secure social and economic justice, promote the welfare of the people, provide adequate means of livelihood, and promote the interests of weaker sections of society.

In today’s world, TVs, laptops, and fans constitute a basic need, which at one time was a luxury. Moreover, to be considered corrupt under section 123(1)(A) of the Representation of the People Act, 1951, a practice must be proven beyond a reasonable doubt, and the Act’s provisions must be strictly interpreted, as penal statutes require strict interpretation.

Analysis (Important Case Law)

This freebie debate knocked on the doors of the Supreme Court in the case of S. Subramaniam Balaji vs State of Tamil Nadu (2013). The arguments mentioned above were put before the court for consideration and a decision was given accordingly.

However, the court befittingly refrained from exercising its jurisdiction over the policy decisions of the state. It delineated that it is for the government to decide what policy decisions it would take to ameliorate (make something better) or lift the livelihood of its people. Interference from the courts would be permissible only when it is in violation of the law of the land or unconstitutional and not when it is unwise.

When monies are withdrawn from the state’s consolidated fund for a public purpose, and after following due procedure, a judicial intervention will jeopardize the basic structure of the separation of powers.

Also, the court clarified that section 123 of the Representation of the People Act applies to an individual and not to a party as such. Accordingly, free promises made by the parties don’t amount to bribery under the alleged section.

Conclusion

The new public interest litigation (PIL) filed in the Supreme Court to adjudicate upon the constitutionality of the promises of freebies poses various challenges before the court.

First, how do you define a freebie or differentiate between an essential and a non-essential good? Will free 2 GB of data not constitute an essential good in today’s computerized world? Will giving the girls bicycles or scooters not help them improve their mobility, making higher education more accessible? Or will unemployment benefits not mitigate the suicidal tendencies in unemployed youth? Today’s essentials can’t just be limited to food, clothing, and shelter.

Second, whether to remain a passive observer of unjust and unfavourable state policy decisions or to exercise judicial review even of state policy decisions? If it opts for the latter, the principle of separation of powers is bound to suffer.

Third, should collective rights be prioritized over individual rights or vice versa? The extent to which individual rights may be sacrificed in a welfare state to advance the rights of groups needs to be made clear.

Though the court may choose not to be intrusive in policy decisions, the issue may best be left to the wisdom of a political party and a voter. It should, however, direct parties to ensure that a proper process is followed for the distribution of freebies and that they are always made available only to the needy or the disadvantaged.

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Settling the Freebie Debate With Constitutional Provisions
Naina Agarwal

More than ever, the need for effective media regulation has arisen in the recent past. Now and then, media is being accused of disseminating fake news, conducting media trials, promoting hate crimes or streaming uncensored content over OTT platforms.

On the one hand, the idea of a monitored and supervised media is against the precepts of democracy; on the other, unobserved and unchecked media may equally cause the same amount of lawlessness and disorder in society.

This article discusses the mechanism enforced in India to regulate media and suggests measures for its effective regulation.

Can Media Be Regulated in a Democratic Society?

Whether media be regulated in a democratic society, which envisages a free flow of ideas and information, is itself a question that needs to be analysed. Article 19(1)(a) of the Constitution of India bestows upon every Indian citizen the freedom of speech and expression. The said right may be exercised through any medium, by words, either spoken or written, by signs, or through visible representation. Accordingly, the freedom of both conventional media, as well as digital media is included under it.

Due to this, the content is mostly unregulated in India or self-regulated, which means the media houses are free to decide what to channel and what not through their respective platforms. This, of course, is subject to limitations incorporated under Article 19(2) of the Constitution, namely, sovereignty and integrity of India, security of the State, friendly relations with other States, public order, decency and morality, contempt of court, defamation or when the publication or propagation would otherwise be an offence, for example, promoting enmity between different groups on religious grounds (offence under section 153A of the Indian Penal Code), publishing statements conducing to public mischief (offence under section 505 of the Indian Penal Code), infringing copyright of any person (offence under section 63 of the Copyright Act).

The government regulates only the conduct of media, which is discussed in the next section below.

Regulation of Conventional Media

Conventional media includes newspapers, magazines, TV, radio, etc. To regulate the conduct of traditional media, the government has established various statutory bodies under different statutes, which are discussed in this section.

Print media is regulated mostly through two major Acts, namely, the Press and Registration of Books Act of 1867, which provides for the registration, regulation and preservation of every copy of books and newspapers printed in India, and the Press Council Act, 1978. The Press Council Act aims to establish the Press Council of India (PCI) to preserve the freedom of the press and to maintain and improve the standards and news agencies in the country.

Likewise, cinema is regulated through the Cinematographic Act of 1952. This Act establishes a regulating body named Central Board of Film Certification for the certification of cinematograph films, for the exhibition of movies, and to regulate those exhibitions.

The telecommunication sector is regulated through the Telecom Regulatory Authority of India Act, 1997. The regulating body established under this Act is the Telecom Regulatory Authority of India, which regulates, adjudicates disputes, disposes of appeals, and protects the interests of service providers and consumers.

Regulation of Digital Media

Digital media broadly includes websites, blogs, video platforms like youtube, and social media sites like Facebook, WhatsApp, Twitter etc. As these platforms act as a medium of communication between two or more people, they are known as “intermediaries” under the governing law.

These are regulated under the provisions of the Information Technology Act, 2000 and the rules framed therein under section 69, which are called Information Technology (Intermediary Guidelines and Digital Media Ethics Code), Rules 2021 (from now on, IT Rules, 2021).

According to section 79 of the IT Act, when anything offensive or unlawful is published over these intermediaries, then these intermediaries shall be liable only when they have selected or modified such information or have not observed due diligence while discharging their duties under the Act. This means no liability shall be imposed if the intermediary in no way facilitated the commission of the said offence, or upon receiving the actual knowledge of the offensive content or on being notified by the appropriate government, it expeditiously removed or disabled access to such material. Therefore, the law imposes very limited liability on these intermediaries. It doesn’t oblige them to take out active steps to filter out objectionable or unlawful content.

Another contested provision is Rule 5(2) of the IT Rules, 2021. It mandates a social media intermediary to trace out or locate the first originator of the content as and when required. It is argued that such a provision is against the privacy policies of the intermediaries as they provide end-to-end encryption. Therefore, it infringes on their right to carry out trade and profession under Article 19(1)(g) of the Constitution and the right to privacy of users under Article 21 of the Constitution. Among others, these are some of the grounds over which constitutional validity is being challenged. However, no right is absolute, and certain limitations may always be imposed in the larger public interest.

IT Rules, 2021 also includes a provision to regulate Over-the-Top (OTT) platforms. These have to incorporate a self-regulating mechanism and grade their content under different categories.

Conclusion

The media is considered to be the fourth pillar of democracy. Its function is to furnish the people with relevant data and information regarding government policies, actions and plans, which will lead to the growth of an informed society. Unfortunately, today the media has been highly commercialised. The content is selected only with the objective of profit maximisation.

Media-led communal violence has become common in the country. To curb this Supreme Court also emphasised the need to bring a law on hate speech recently in the case of Amish Devgan vs Union of India (2020).

The law regulating digital media also needs some consideration. Copyrighted and pirated material is freely transmitted over intermediaries like Telegram. The efficient regulation of digital media would require these intermediaries to take some active and effective measures to filter out unlawful content on their own.

Single definite legislation wrapping up all the facets to govern online media without compromising the freedoms under Articles 19(1)(a) and 19(1)(g) is urgently required.

Read Next:
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2. What Is Media Trial in India and Its Famous Cases
3. What Are Pressure Groups and Their Role in Indian Polity

How Is the Media Regulated in India
Naina Agarwal