“The law is what is read, not what is written.” -Donald Kingsbury

The correct interpretation of laws is an important and primary step in the legal field which guides a person who is studying law towards a deep and multidimensional outlook as to the real purpose for which the law has been created.

A person who is studying law need not look only at the superficial translation of the written context but also at the objective for which it has been created, thus, learning to read between the lines to reach the minds of the creators of the legislation so that the law and its interpretation can be used in the right context at the right place, be it in the courtroom or a research paper.

This article mentions some of the important types of laws and legal definitions which will help you understand the absolute nature of the law.

Types of Law Based on Their Usage

Based on usage, a particular bare law can either talk about the constitution of a legal wrong along with penal provisions or about the way the implementation procedure is to be carried out with regard to a legal wrong. Thus, based on the usage, there are two types of law, i.e. Substantive and Procedural.

Substantive Law

Substantive laws are the laws that establish the rights and duties of the people, which ultimately define the acceptable behaviours of the people in a society. It also lays down the punishment and penalties for the violation of the duty of oneself and infringement of the right of another. Substantive laws can be codified or uncodified. Substantive law can also be derived from judicial precedents.

Examples of Substantive Law:

• Indian Penal Code, 1860 (Codified)
• Indian Contract Act, 1872 (Codified)
• Transfer of Property Act, 1882 (Codified)
• Specific Relief Act, 1963 (Codified)
• Law of Torts (Uncodified)

Procedural/Adjective Law

As the name itself suggests, procedural law is the one that lays down the process by which the laws will be implemented on the ground. Procedural law mentions the stages which a case law will undergo, starting from the filing of a complaint to the final verdict. In essence, procedural laws mention the way by which substantive laws will be enforced and executed.

Examples of Procedural Law:

• Code of Criminal Procedure, 1973
• Code of Civil Procedure, 1908 (CPC is procedural law in its entirety (the name Code of Civil Procedure itself qualifies that it is procedural), but certain provisions are substantive as well.)
• Limitation Act, 1963
• Indian Evidence Act, 1872 (though the Indian Evidence Act, 1872 has certain provisions which can be considered as a part of substantive law, e.g. Doctrine of Estoppel.)

Excise and Taxation Commissioner, Haryana v M/s Frigoglass India Private Limited and another (2019): Procedural law is generally considered retrospective in nature unless otherwise mentioned in the law, whereas a substantive law in most cases is not considered to have a retrospective effect.

Types of Legal Definitions

Based on the extent of the meaning of a definition, there are two types of definitions in law:

1. Inclusive or Extensive Definitions

Inclusive definitions are the ones which are wide in their interpretation and do not lay a strict boundary as to its arena of extent. These definitions usually have the term ‘includes’ or ‘is deemed to include’ in them.

Example: Section 12 of the Indian Penal Code, that is, the definition of the term “public.” The word “public” includes any class of the public or any community.

2. Exhaustive Definitions

Exhaustive definitions are restrictive in nature and use the term ‘means and includes’ in them. These definitions usually define the arena of the extent to which they are accustomed.

Example: The definition of a banking company under section 2(bb) of the Industrial Disputes Act, 1947, as interpreted by the Supreme Court in the below-mentioned case.

In West Bengal State Warehousing Corporation vs M/S. Indrapuri Studio Pvt. Ltd. & Another, the Supreme Court interpreted the term ‘means and include’ and said that if a definition uses the term “means” then it means that “definition is a hard-and-fast definition, and no other meaning can be assigned to the expression than is put down in definition.”

But when the term “includes” is used, then the intent of legislators is to retain the wider ambit of the law and not to restrict it in its application. This makes the definition ‘enumerative’ and not ‘exhaustive’.

Thus, when the term includes is preceded by the term means, then it represents the intent of legislators to keep the definition as an exhaustive one.

Conclusion

“Statutes are a mere milestone, telling how far yesterday’s thought had travelled, and the talk of the sidewalk today is the law of the land. With us, the law is nothing unless close behind it stands a warm, living public opinion.” -Wendell Phillips

The laws of a country define the existential thinking process of the country. Of course, with time, the thinking process of society changes, and so do the obsolete laws. But the most important thing in its entirety is how the laws are interpreted and used to retain the value of justice.

Meaning of Substantive Law and Procedural or Adjective Law
Ruchi

Medical Termination of Pregnancy (Amendment) Act, 2021, expanded the applicability and accessibility horizons of abortion rules in India. This article discusses the changes made in the Medical Termination of Pregnancy Act of 1971 due to the Medical Termination of Pregnancy (Amendment) Act of 2021.

Key Features of the Medical Termination of Pregnancy (Amendment) Act, 2021

1. Increase in the upper gestation period from 20 weeks to 24 weeks for special category of women, which includes rape survivors, incest victims and other vulnerable women (which will include minors, specially-abled women etc.)
2. Provision related to the privacy of women who are terminating their pregnancy is also included in the amendment Act, which says that women’s identity will not be revealed. It can be revealed only to the person who is legally authorised for the time being enforced.
3. In case of substantial foetal abnormalities diagnosed by the medical board, the upper gestation period will not be applicable.

Major Differences Between the Medical Termination of Pregnancy (Amendment) Act of 2021 and the Medical Termination of Pregnancy Act of 1971

1. The new amendment Act increases the applicability and accessibility of the legal abortion provisions to unmarried pregnant women as well (citing contraceptive failures as a reason), which was not there in the Medical Termination of Pregnancy Act of 1971.
2. Under the new amendment Act, for termination of pregnancy from 12 to 20 weeks, advice of only one doctor is required, whereas in the Medical Termination of Pregnancy Act of 1971, advice of 2 doctors was mandated. [Section 3(2)(a)]
3. Under the new amendment Act, abortion from 20 to 24 weeks is allowed with the advice of 2 doctors, whereas under the Medical Termination of Pregnancy Act of 1971, abortion beyond 20 weeks was not allowed. [Section 3(2)(b)]
4. Under the new amendment Act, abortion beyond 24 weeks is allowed on the advice and permission of the medical board for substantial foetal abnormality, whereas an abortion beyond 24 weeks was not allowed in the Medical Termination of Pregnancy Act of 1971.

X vs the Principal Secretary Health and Family Welfare Department & Anr (2022)

In this case, the Supreme Court, in its own wording, cited that:

“There is no doubt that a woman’s right to make reproductive choices is also a dimension of “personal liberty” as understood under Article 21 of the Constitution of India. It is important to recognise that reproductive choices can be exercised to procreate as well as to abstain from procreating. The crucial consideration is that a woman’s right to privacy, dignity and bodily integrity should be respected. This means that there should be no restriction whatsoever on the exercise of reproductive choices such as a woman’s right to refuse participation in sexual activity or alternatively the insistence on the use of contraceptive methods.”

The Act in itself, thus, recognises the importance of the liberty of a woman and the right of a woman on her bodily matters as has been clarified by the Supreme Court in its judgement which also removes a biased distinction between a married and unmarried woman when it comes to abortion laws.

Read Next:
1. Is an Unmarried Woman Legally Allowed To Have an Abortion in India?
2. Amendment to Increase the Legal Age of Marriage for Women in India

What Are the Changes Made By the Medical Termination of Pregnancy Amendment Act of 2021?
Ruchi

The Ministry of Communications released the draft Telecommunication Bill 2022 to regulate the telecom sector of the country. The draft Bill was released to get public comments on the same. This article talks about the significance and changes this Bill is coming up with.

Overview of the Bill

Presently the telecommunication sector of the country is governed by 3 Acts, and they are:

1. Indian Telegraph Act of 1885
2. Indian Wireless Telegraphy Act of 1933
3. The Telegraph Wires (Unlawful Protection) Act of 1950.

This Bill consolidates all the above-mentioned Acts and changes the provisions that do not fit the present state of the Indian telecommunication market.

Major Issues With Regard to Existing Legal Setup of the Telecommunication Sector

The telecom service providers in India have been asking for the requirement of a license by the OTT (Over-the-Top) platforms for providing services to the users, which they currently do not require.

Telecommunication service providers like Airtel, Reliance Jio etc. have been complaining about the unfairness they have to deal with when the OTT platforms, including various messaging, video calling and calling facilities providing platforms like Whatsapp, Telegram, Google Meet, etc., provide these services, without having to fulfil the documentary necessities and to bear license costs that telecommunication service providers have to otherwise undergo.

Secondly, the OTT platforms use the internet services provided by the telecommunication service providers to offer their specific services without paying any share to the telecom service providers, and thus the telecom service providers have to bear higher infrastructure costs.

Key Features of the Draft Bill

These are some of the important highlights of the Bill:

1. Inclusion of OTT Platforms Within the Definition of Telecommunication Service Providers

The inclusion of OTT platforms within the definition of the telecommunication service provider will require the OTT platforms to get a license issued by the government to operate in India.

2. Limiting the Powers of the Telecom Regulatory Authority of India

This Bill also restricts the ambit of powers of TRAI with regard to issuing licenses. It also reduces the position of TRAI from a regulatory body to a mere recommendatory body.

3. Replacement of Universal Service Obligation Fund With a New Fund

The draft bill proposes replacing the Universal Service Obligation Fund with a new fund called the Telecommunication Development Fund, which will support various projects like the Bharat Net Project to boost internet connectivity in the country’s remotest areas.

4. Increased Control of the Government Over the Sector

If the internet service provider fails to make the payments or becomes insolvent, then the government can defer, write off, or remit the provider and can exercise its discretion to allow the Telecom Service Provider to continue using the spectrum.

Conclusion

With the growing market of telecom users in the country and increasing competition in the technology sector, it becomes highly important that the government comes up with new legislation which is fair and provides a level playing field to all the operators and service providers. Though with the emergence of new technologies, also come new challenges along with the old unresolved ones, which include the availability of high-speed internet facilities to the entire country for which vast infrastructure for widening the reach of the spectrum sufficiency is also required.

What Are the Changes Proposed by Draft Indian Telecommunication Bill, 2022?
Ruchi

In 2018, after the nationwide anger and agitation with regard to Kathua and Unnao rape cases, the Government passed the Criminal Law (Amendment) Act, 2018, to amend certain provisions of the Indian Penal Code (1860), Indian Evidence Act (1872), the Code of Criminal Procedure (1973), and the Protection of Children from Sexual Offences Act (2012). The provisions concerning which the amendments were to be made dealt with sexual assault and rape.

This law note tells you about the significant amendments the Criminal Law Amendment Act of 2018 bought to IPC, CrPC, and the Evidence Act.

Major Amendments to IPC

These are the major amendments made in the Indian Penal Code due to the Criminal Law (Amendment) Act, 2018:

Amendments to section 376 (Punishment for rape)

• The minimum punishment for rape of a woman increased from 7 years to 10 years.
• Rape of a girl below the age of 16 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment.
• Rape of a girl below the age of 12 years will carry the minimum punishment of 20 years, which can be extended to life imprisonment or capital punishment. (Section 376AB inserted)
• In case of gang rape of a girl below the age of 16 years, the punishment will be life sentence. (Section 376DA inserted)
• In case of gang rape of a girl below the age of 12 years, the punishment will be life sentence or death. (Section 376DB inserted)
• Provision regarding the fine to be payable to the victim has also been added through the amendment. This fine should be just and reasonable, which could meet the medical expenses and rehabilitation of the victim.

Section 376DA and section 376DB are thus the extensions of section 376D, that is, gang rape.

• Further, an amendment to section 376E (punishment for repeat offenders) has also been made where section 376AB, section 376DA, and section 376DB have also been added along with section 376, section 376A, and section 376D. That is, whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376AB or section 376D or section 376DA or section 376DB and is subsequently convicted for an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death.

Major Amendments to CrPC

These are the significant amendments made to the Criminal Procedure Code by the Criminal Law (Amendment) Act of 2018:

• An amendment was made in sub-section 1A of section 173 of CrPC, which stated a time duration of two months for investigation in relation to offences under sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of the Indian Penal Code.
• Amendment in section 374 of CrPC added clause 4 relating to disposal of appeal within six months from the date of filing of such appeal in cases relating to sections 376, 376A, 376AB, 376B, 376C, 376D, 376DA, 376DB or 376E of IPC.
• Amendment in section 377 of CrPC laid down a similar provision as that of section 374 but with regard to appeal by the state government.
• Amendment in section 438 of CrPC laid down provision regarding non-application of anticipatory bail provisions under section 438 made under offences committed under clause 3 of sections 376, 376AB, 376DA and 376DB.
• Amendment in section 439 of CrPC added a proviso which stated that the High Court or Court of Session shall give notice of application for bail to the Public Prosecutor within 15 days from the date of receipt of the notice of such application before granting bail to a person accused of offences under clause 3 of section 378, 378AB, 378DA and 378DB. It also makes mandatory the presence of the informant or any person authorised by him at the time of hearing of the application for bail to the person under the above sections.

Major Amendment to the Indian Evidence Act

• Amendment in section 53A of the Evidence Act added sections 376AB, 376DA and 376DB in the main section.

Conclusion

Though the Criminal Law (Amendment) Act, 2018, has made changes in the age and trial-related provisions of the accused, it is in a grave contradiction to that of the POCSO Act.

There are a number of provisions in the IPC and POCSO Act with regard to the punishment for the cases of rape of a minor, which often leads to the question of who will have the upper hand while deciding the punishment. But POCSO Act clearly mentions that between POCSO Act and IPC, whichever will have the higher (severer) punishment, will be applicable in the case of rape of minor(s).

You can see the full Criminal Law (Amendment) Act, 2018 PDF here.

Major Amendments Made By the Criminal Law (Amendment) Act, 2018
Ruchi

This law note mentions the pardoning powers of the Governor of a state in India and the recent related judgements passed by the Supreme Court, which bring to light critical changes in the understanding and implementation of the pardoning powers of the Governor.

Article 161

Article 161 of the Indian Constitution says that whenever a person has committed an offence, and the offence committed is against the state law, then the Governor of that particular state can pardon, reprieve, respite, suspend, remit, or commute the sentence (punishment). You can learn the meaning of these terms in this law note: What Are the Pardoning Powers of the Indian President

Governor’s Pardoning Power in Case of Death Row Convicts

The Supreme Court of India, in August 2021, in the case of State of Haryana & Ors vs Raj Kumar @Bittu held that the Governor can exercise the pardoning power in case of death row convicts as well. Earlier, the pardoning power concerning death row convicts was with the President only.

Must Read: 9 Powers of the Indian President

Governor’s Pardoning Power and Section 433A of CrPC

Section 433A of the Criminal Procedure Code imposes certain restrictions on the power of remission and commutation in cases where capital punishment is one of the punishments provided by law or where the death sentence was given to the convict but was commuted to a life sentence.

Section 433A of CrPC says that if a convict has been awarded clemency (mercy) in any of the scenarios mentioned above, then he cannot be released before completing at least 14 years of sentence in jail.

But the Supreme Court, in the above-mentioned case, that is, State of Haryana & Ors vs Raj Kumar @ Bittu, held that the Governor can grant pardon to a person, including the death row convicts, even before they complete 14 years of imprisonment.

Must See: Is Life Imprisonment for Rest of the Life or 20 Years or 14 Years?

Can the Governor Pass a Mercy Plea to the President for Consideration?

Recently, the Supreme Court, in the case of A.G. Perarivalan vs State, Through Superintendent of Police CBI/SIT/MMDA, Chennai, Tamil Nadu and Anr (2022) (convict in the Rajiv Gandhi Assassination case), held that the Governor has no right to send a mercy plea to the President for consideration. The pardoning power in such cases vests with the Governor, and he can exercise such power only with the aid and advice of the state executive.

In Dhananjoy Chatterjee alias Dhana vs State of West Bengal (1994), the Supreme Court laid down that the President and Governor can exercise the powers under Article 72 and Article 161 only with the aid and advice of the central and state executives, respectively and not on their own.

Related: Mercy Petition – Articles 72 and 161 of the Constitution of India

Difference Between Pardoning Powers of the President and the Governor

The Constitution of India provides clemency powers to both the President of India and the Governors of states but the ambit of the President’s pardoning power is wider than that of the Governor. The President can exercise the pardoning powers in sentences or punishments given by Court Martial as well.

Conclusion

India has a quasi-federal form of governance, but the functions and powers of both the Center and the states are segregated by the various constitutional provisions backed by important legislations on the same, which can not be violated nonchalantly (in a casual manner).

The bifurcation of the powers of the state executive and the President in the case of the Governor’s pardoning power is a clear representation of the ardent abiding outlook of the basic structure doctrine. In simpler words, the bifurcation of the pardoning powers of the Governor and the President is a clear representation of the federal nature of Indian governance.

Read Next:
1. Governor of a State – Role, Importance, and Functions
2. 10 Reasons Why Centre Is Powerful Than the States!
3. What Are the Differences in Pardoning Powers of the Indian President (Article 72) and the State Governors (Article 161)

Pardoning Powers of the Governor With Latest Updates and Judgements
Ruchi

This law post talks about the procedure of establishment and admission of states in the Union of India, which were foreign territories before.

Part I of the Constitution

Part 1 of the Indian Constitution consists of the various provisions dealing with the defined territory of India, which can be expanded through the acquisition of outside territories and reduced through ceding of the parts of Indian territory.

While the Indian territory can be ceded by the central executive, it cannot be seceded by any Indian state.

The states can also be divided, merged, their area can be altered, and names can be changed by the Union. But the states have no such power of establishment and admission of new territory, alteration or merger of boundaries or changing the name of itself or any other state.

Due to this reason, India is also called the ‘Indestructible Union of Destructible States’.

Article 1(3) defines the composition of the territory of India, which shall consist of:

• The territories of the State
• The Union territories
• Acquired territories

Admission and Establishment of New States

The sovereign nature of the Indian Constitution gives India the power to acquire foreign territories. The modes of acquisition are the ones recognised by International Law, that is:

• Cession
• Occupation
• Subjugation

Article 2 of the Indian Constitution grants the power to Parliament to admit and establish new states. The Parliament requires a simple majority (Article 4) to amend the provisions of Schedule 1 and Schedule 4. Article 2 thus primarily deals with the states (admitted or established) which are/were not part of the Indian Union.

Difference Between Admission and Establishment of States

Admission is when a state which was already in existence is acquired by India; and Parliament, through amendment, includes it in Schedule 1 and grants constituencies and seats to it (in various government houses and institutions) along with other rights.

On the other hand, when the same is done to a state which was not in existence when India acquired it, then it is called establishment.

Territories Admitted and Established by India Through Article 2

• Goa, Daman and Diu: Acquired by India from the Portuguese through police action in 1961.
• Dadar and Nagar Haveli: Liberated by the Portuguese in 1954, converted into a Union Territory by India in 1961.
• Puducherry: Ceded by the French to India in 1954, converted into a Union Territory by India in 1962.
• Sikkim: Given the status of a full-fledged state of India after a referendum in 1975.

Conclusion

Though India is not a state with an imperialist (imperialism means a policy of extending a country’s power and influence through colonisation, use of military force, or other means) ideology but the Constitution of India provides it with the power to acquire outside territories and admit them into its legitimate territorial ambit. And a simple majority of the Parliament is enough to admit or establish new states!

Read Next:
1. 10 Reasons Why Centre Is Powerful Than The States!
2. What Is a Foreign Judgement and When It’s Not Binding in India
3. How to Cover Local Laws for Judiciary Exams

How Can India Admit and Establish New States as Per the Indian Constitution
Ruchi

An ideal society is formed by the inclusion of all people, provided with a level playing field, with acceptance and confidence, with open-mindedness and a sense of groundedness (humbleness).

Promoting this idea of none discriminatory nature is the principle which has its rooted presence in Article 2 of the UN Convention on the Rights of Persons with Disabilities (UNCRPD), called the Principle of Reasonable Accommodation.

The detailed analysis of this principle, along with its recent citations in various important judgements, are presented in a simplified manner in this article.

What Is the Principle of Reasonable Accommodation?

The Principle of Reasonable Accommodation promotes equality of opportunity by making reasonable exceptions to certain people who lack a common privilege that a normal individual otherwise enjoys.

Article 2 of the UN Convention on the Rights of Persons with Disabilities defines Reasonable Accommodation as:

“Reasonable accommodation” means necessary and appropriate modification and adjustments, not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedom.”

This principle of Reasonable Accommodation is usually applied in cases of disability, health condition or personal belief.

In 2016, International Labour Organisation chose workers with disabilities, workers living with HIV and AIDS, workers holding particular religions or beliefs, and pregnant workers with family responsibilities to be included in the practical guide promoting diversity and inclusion through workplace adjustments.

The Philosophical Aspect of the Principle of Reasonable Accommodation

“A disability doesn’t have to be a social barrier. Good etiquette begins with inclusion, not exclusion.” – Robert M Hensel

In a world, where every human being is not born with all privileges, it becomes quintessential that some alternative is provided in the form of some solution which places every human being on an equal footing so that the human spirit is not defined and restrained by the things a human being lacks.

Equality of opportunity can only be provided when there is equality of basic privileges needed for seeking that opportunity and when there is the inclusion of specially-abled people through reasonable adjustments.

Recent Case Laws Citing the Principle of Reasonable Accommodation

The Rights of Persons with Disabilities Act, 2016 defines reasonable accommodation under section 2(y) as: “necessary and appropriate modification and adjustments, without imposing a disproportionate or undue burden in a particular case, to ensure to persons with disabilities the enjoyment or exercise of rights equally with others.”

This principle has been cited in various recent judgements like:

Smt Reshma vs the State of Karnataka (2021) (popularly known as Hijab ban case), where Karnataka High Court chose reasonable restriction above reasonable accommodation, citing that ban on hijab in educational institutions is a reasonable restriction.

Vikas Kumar vs UPSC (2021), in which the Supreme Court elaborated the principle of reasonable restriction, saying that failure to provide a scribe to a person with a 40% benchmark disability is against the Principle of Reasonable Accommodation, thus leading to discrimination.

Jeeja Ghosh and Anr vs Union of India and Ors (2016), in which the Supreme Court awarded a compensation of 10 lakh rupees to a person suffering with cerebral palsy who was evicted from a flight after boarding.

Conclusion

“Disability need not be an obstacle to success.” – Stephen Hawking

The principle of Reasonable Accommodation promotes the basic ideal of equality irrespective of the physical condition of a person by providing certain extra privileges to people who lack the required necessity for reaping any opportunity with equal physical placement. This principle thus removes any form of quixotic (impractical) fantasies of the idea of equality engrained in the privileged minds.

What Is the Principle of Reasonable Accommodation With Case Laws
Ruchi

Constitutional morality is the concept that primarily ascertains the deep and humble abiding force towards constitutional values. It also refers to the positive aspects of the Constitution along with its substantive teachings. The concept of constitutional morality promotes the implementation of primary ideals adopted by the Constitution.

This article talks about the principle of Constitutional Morality, which has been highly used and interpreted by the Supreme Court in various judgements in the past decade.

Constitutional Ideals Being Part of Constitutional Morality

The elements of constitutional morality are the supreme ideals and important concepts mentioned in the Constitution and thus include the rule of law, the procedure established by law, due process of law, social justice, individual liberty, right to equality, right to freedom and the Preamble.

Analysis of the Concept of Constitutional Morality

The term constitutional morality has not been succinctly (clearly) defined in either the Constitution or by the Supreme Court. Thus, it keeps the principle open to a wide range of interpretation and analysis.

The idea of constitutional morality was discussed by Dr BR Ambedkar (mentioning the phrase first used by George Grote) during his speech, ‘The Draft Constitution‘, as the principle promoting a cordial liaison between the governing and the governed. According to him, the state should run in an unbiased manner, thus, ending any form of social injustice, and all this can be done with the avid implementation of the principles of constitutional morality.

Cordial: friendly.
Liaison: communication or cooperation which facilitates a close working relationship between people or organisations.

The idea of constitutional morality also goes against the idea of popular morality or authoritarian view. Although the Supreme Court in Navtej Singh Johar vs Union of India, while citing the principle of constitutional morality, said that ‘majoritarian views, popular morality cannot dictate constitutional rights‘.

Criticism of the Concept of Constitutional Morality

As the term constitutional morality gravely hints at the idea of strict implementation of constitutional principles, thus, sometimes it is considered to be a source of judicial overreach and goes against the principle of separation of power.

It has been criticised that the Supreme Court often enters the arena of legislature and functions beyond its assigned power while implementing the idea of constitutional morality. The Supreme Court, in its Sabrimala judgement as well as the present Attorney General of India, K.K. Venugopal called the doctrine of constitutional morality a dangerous doctrine.

Cases Mentioning the Principle of Constitutional Morality

The principle of constitutional morality has been vividly used in the Supreme Court judgements after 2014.

These are some prominent cases in which the term constitutional morality has been used and interpreted by the Supreme Court:

• Manoj Narula vs Union of India
• Indian Young Lawyers Association vs the State of Kerala
• Navtej Singh Johar vs Union of India
• Sri Subhas Bhattacharjee vs the State of Tripura
• The Trustee vs the State of Kerala, etc.

Conclusion

It can be said that the principle of constitutional morality is a highly debated principle in India.

A limited and within-the-scope implementation of constitutional morality can produce highly beneficial results upholding the essence of justice. On the other hand, it has a great capacity to be misused as well.

Thus, we can conclude that a clear definition of the term and a firm boundary limit of its use are the basic requirements at present.

Read Next:
1. What Is the Mini Constitution of India and Changes It Added
2. 10 Constitutional Provisions That Guarantee Independence of Supreme Court

What Is Constitutional Morality – Analysis, Criticism and Cases
Ruchi

In 2021, a Private Member’s Bill was introduced in the parliament. It raised the demand to set up four regional benches of the Supreme Court in Delhi, Mumbai, Chennai and Kolkata for the North, West, South, and East zones, respectively, to decentralise the Supreme Court.

This demand is not new, as various standing committees of parliament recommended setting up of regional benches in the early 2000s. In 2009, the 18th Law Commission also recommended the formation of regional benches of the Supreme Court of India.

This article analyses the practical aspects of setting up regional benches of the Supreme Court and its impact on the country’s judicial system.

Constitutional Provision About Seat of the Supreme Court

In 1984, the 10th Law Commission recommended the formation of two divisions of the Supreme Court. One of them may listen to only constitutional matters and thus was recommended to be called the Constitutional Division, and the other may be called the Legal Division for all the remaining cases.

These recommendations find their root in Article 130 of the Indian Constitution. Article 130 of the Indian Constitution says that the Supreme Court shall sit in Delhi or such other place or places as the Chief Justice of India, with the approval of the President, from time to time, appoint. The wording of Article 130 clearly shows that the Constitution makers were well aware of the emergence of the need for regional benches of the Supreme Court in the future.

Problems With Regard to the Centralisation of the Supreme Court

The centralisation of the Supreme Court has given rise to several issues. Presently, the Supreme Court of India sits in Delhi, which makes it a daunting task for people outside of Delhi to seek justice. It has become an expensive affair to knock on the door of the apex court.

Further, the existence of a centralised set-up of the Supreme Court has also given birth to the long line of pending cases, thus, leading to a heavy burden on the apex court.

In 2021, the Bar Associations of various High Courts, specifically from the southern part of the country, raised the demand for regional benches with the Chief Justice and the President of the country. A Private Member’s Bill was also introduced in the parliament, raising the same demand.

The centralised set-up of the Supreme Court also creates a problem for various practising advocates of the country, as those who live out of Delhi or practice in various state High Courts find it difficult to widen their ambit and get an opportunity to plead in the Supreme Court.

The ultimate purpose of the judiciary is to provide justice to every single citizen irrespective of their privileges, but the centralised system makes it difficult for extensively underprivileged people who live in the remotest areas of the country to even think of reaching to Supreme Court.

The above discussion also throws light on Article 39A, which is the Directive Principle of State Policy. Article 39A says that “the State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.”

Even various judges in their judgements have emphasised this principle. In a judgement, Justice N. Kirubakaran of the Madras High Court said: “No impression should be given that the Hon’ble Supreme Court is meant only for the people living in and around New Delhi or the states surrounding New Delhi.”

Various High Courts like Madras High Court, Bombay High Court, Guwahati High Court etc., also have their regional benches. These benches were set up after the recommendations made by the Jaswant Singh Commission. However, the Supreme Court has continuously declined the recommendations of various commissions with regard to the regional benches of the Supreme Court.

Arguments in Favour of Regional Benches of Supreme Court

Presently there are 34 seats for judges in the Supreme Court, which is much less in comparison to the population of the country. Even these 34 seats are not filled in, and only 31 judges, including the Chief Justice, are holding the judicial seats at the Supreme Court. This reduces the capacity for the fast delivery of justice. The formation of regional benches will increase the number of seats of judges and will also force the government to appoint more judges to the Supreme Court for all four zones.

Must See: About Supreme Court of India – Collegium, Powers, Judges

Arguments Given Against Regional Benches of Supreme Court

The argument against the idea of setting up regional benches of the Supreme Court is that it will dilute the sacrosanct nature of the Supreme Court and lessen the binding force of the decisions of the Supreme Court. The huge infrastructural cost of setting up these regional benches will further be a loss of money and human resources.

Regional Benches of Supreme Court vs Virtual Courts

Another debate that is negatively impacting the formation of regional courts and suggesting a better alternative to it is the setting up of virtual courts. It is being argued that in today’s digital world, the better alternative to setting up regional benches would be virtual courts which will be cost-effective, will save human resources and most importantly, solve the major issues revolving around the centralised set-up of the Supreme Court. This step will also be the saving factor for justice delivery during various inevitable crises like the emergence of future pandemics. The factual and pragmatic aegis behind this alternative is quite strong.

Conclusion

The country’s judicial system is in huge need of regional benches of the Supreme Court. According to the Ministry of Law and Justice, nearly 70,000 cases are pending in the Supreme Court. These cases are living proof of the failed mechanism of the present centralised system of justice delivery system.

Thus, a decentralised Supreme Court with its judicial tentacles in all four zones should be encouraged in the form of setting up more regional benches, either in physical or virtual form, according to the need of circumstances so that the judiciary at the apex level functions in a fast and fair manner.

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Pros and Cons of Regional Benches of the Supreme Court of India
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In December 2021, the Prohibition of Child Marriage (Amendment) Bill, 2021, for increasing the minimum legal age of marriage for women in India from 18 years to 21 years, was introduced in Lok Sabha.¹ Many experts are of the view that it is a step towards enforcement of the Right to Equality, as the current provision is discriminatory in nature.

The present legal age of 18 years for marriage for women is violative of not only the right to equality but also contradicts the basic necessity of putting the impetus on improving women’s health.

The introduction of the new legal age will also lay emphasis on the increase in graduation level education of women thus formulating them into independent and self-sufficient citizens of the country, which will help in reducing the number of cases of domestic crimes against them.

While there are arguments in favour of this increase in age, there are critics on the other end of the spectrum who come up with pressing views. Critics believe that an increase in the legal age for marriage for women will lead to a violation of rights given to certain special communities where child marriage is a custom. According to them, the state should not enter into the sphere of customary rules and regulations.

Statistics Showing the Prevalence of Child Marriage in India

According to a report of the National Family Health Survey-5 (2019- 22), 14.7% of women in urban areas and 27% in rural areas in the age group of 20- 24 were married before the age of 18 years.

As per this survey, 3.8% of women in urban and 7.9% in rural areas between the age group of 15-19 were already mothers or pregnant at the time of the survey.

Though the legislation has helped reduce child marriages in India to a greater extent, this data clearly shows the presence of child marriage in India despite the current legislation.

History of Marital Age for Women in India

Before Independence, the marital age for women used to be 10 years. This age further increased to 15 years after Independence. But it was in 1978 that an amendment was made under the Child Marriage Restraint Act, increasing the marital age for women to 18 years. In 2006, the government decided to abolish child marriage to a greater extent and came up with the Prevention of Child Marriage Act, 2006, replacing the earlier Child Marriage Restraint Act.

Pros of Increasing the Age of Marriage for Women

This step has been taken to bring both men and women on an equal footing, thus, emphasising the motto of equality. The government believes that increasing the age of marriage for women will help resolve problems like maternal mortality rate, malnourishment in kids, the poor health of women due to pregnancy at an early age, infant mortality rate, etc. It will also help in increasing the rate of education among women. In India, a person completes his graduation primarily at the age of 21 years. Thus, it will help produce more graduate women who can serve the country in various capacities.

Cons of Increasing the Age of Marriage for Women

The data of the National Family Health Survey-5 clearly shows that the creation of legislation is not sufficient, as many regions of India still endure the practice of child marriage. The creation of legislation does not guarantee its effective implementation.

Many experts believe that child marriages often relate to people’s orthodox and conservative ideologies and beliefs. People consider girls as an unnecessary burden and thus marry them at an early age. In such homes, girls usually have to suffer violence and trauma. These girls often get married at an early age to get out of the violent households; thus, marriage act as an effective defence mechanism for them. Increasing the age of marriage does not guarantee education for women, as many households having rigid thinking and ideologies will still consider it a burden and unfruitful investment.

All these factors combined raise the question of the implementational aspect of future legislation. Many experts also believe that this legislation will increase the incidents of female foeticide instead of solving the actual issue at hand.

Conclusion

Increasing women’s marital age is a progressive step, but it does need an effective implementational mechanism. Public awareness is the key to resolving the issue alongside the legislation.

Many developed countries like New Zealand and Singapore also have marital age for women on similar lines to the said proposal.

Therefore, this legislation can prove to be fruitful, but the key to its effectiveness lies within the well thought out practical measures which should be taken to raise the awareness among the general public about its importance.

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Amendment to Increase the Legal Age of Marriage for Women in India
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