Of late the Parliament, the Executive and the Judiciary, seem perpetually locked in the battle of supremacy and the article 124 of the Constitution of India, in particular, has long been a battleground of tussle between the Union Government and `the Union Judiciary’ for seeking that primacy in the matters of appointment of judges to the Supreme Court and the various High Courts. Prior to the verdict handed down in the case of S.C. Advocates-on-Record Association v. Union of India (1993) 4 SCC 441, the judges were appointed to the Supreme Court by the President of India, “by warrant under his hand and seal after Consultation with such of judges of the Supreme Court and of the High Court …. as the President may deem necessary…”. This expression with regard to `consultation’ however was radically altered by the Supreme Court in the above referred to case in 1993, when the word “consultation” was interpreted by the 9-judge bench, to mean “Concurrence” or “Conformity”, with the opinion of the Chief Justice of India. It was further laid down that in case of a Supreme Court the proposal is to be initiated by the CJI and in the case of a High Court by the Chief Justice of that High Court and in the event of Conflict of Opinion, the view of the Chief Justice of India, is to prevail.

It is not that the system in place prior to 1993, in which the executive had the primacy, as per the express provision of the Constitution, was found rotten or broken down by the Supreme Court. In fact, to the contrary some very eminent judges such as Justice C. A. Vaidyialingam, Justice V.R. Krishna Iyer, Justice R.S. Sarkaria, Justice V.D. Tulzapurkar, Justice O. Chinappa Reddy, and Justice Kuldeep Singh, amongst the many more outstanding judges, had adorned the chair, under the original system in place prior to 1993.

Recently, the Supreme Court has held in Rajesh Sharma v. State of U.P. (2018) 10 SCC 472, that, “Function of this court is not to legislate but only to interpret the law“. In Kotak Mahindra Bank v. A. Bala Krishnan (2022) 9 SCC 364, while relying upon some earlier rulings on the point, a 3-judge bench of the Supreme Court has held that, “it is not permissible for the court to add or subtract words to a statute or read something into it which is not there. It cannot re-write or recast legislation.” The Supreme Court, however, does not seem to listen to its own self, as is apparent from the judgement in the case of appointment of Chief Election Commission that is Anoop Baranwal v. Union of India, wherein even after noticing that, ” while making a law is ordinarily a power with the legislative branch and being a power it cannot be compelled by a court….”, yet being “concerned with the devastating effect of continuing to leave appointments in the sole hand of the executive….”, the Supreme Court found, “that the time was ripe for the court to lay down norms”. The “norms” laid down provide for appointment of the Chief Election Commission on the same pattern as the Director of the CBI that is by the President on the advice of a committee consisting of the Prime Minister, the Leader of Opposition, and the Chief Justice of India. Nothing illegal however was found in the appointment the new Election Commissioner, despite summoning the file of his appointment from the union Government.

The Question is; is there any limit on the powers of the Supreme Court or does the Supreme Court being `Supreme’ has no limit on its powers. It needs to be clarified that the expression “Supreme Court” must be interpreted to mean supreme of all courts as distinguished from supreme of all authorities. The preamble of the Constitution of India makes it very clear that the people of this country are the ultimate source of all power, whose `solemn resolve’ has fathered this constitution and therefore are undeniably `SUPERME.’ It is none else but the people of India whose collective resolve has created this constitution. The question that next arises is, which institution best reflects the collective will of the people of India. It surely cannot be the Supreme Court and has to be the Parliament, whose members are directly chosen by the people themselves and therefore the weakening of this institution will necessarily amount to weakening of our democracy. The question that next begs for an answer is, can the Supreme court take over the functions of the parliament? If our democracy is to fit the most accepted definition of `democracy’ which is, `a rule of the people, by the people…’, then the answer has to be in the negative. The role of the courts, thus, has to be, to only interpret the law, framed by the Parliament and to apply the same in a given set of facts and the circumstances. In doing so it is important not to wonder off too far away from the actual text of the legislation and to reach at a conclusion that is not borne out from the plain and honest reading of the text of the legislation, even if the court is able to write a judgement that spreads over hundreds of pages, for reading in the text of the statute what clearly is not provided for or not intended to be provided for, has to mean taking away from the exclusive reserve of the people of India and thereby diluting their power and consequently the democracy.

Let us now examine the practical application of the new interpretation given to the language of Article 324(2). It is easy to see that in a committee consisting of the Prime Minister, the Leader of Opposition, (who is a leader of the party rejected by the people) and the Chief Justice, the P.M. and the Leader of Opposition will almost never agree upon a same person, giving the actual power, to choose the Election Commissioner, to the CJI. A position not only not envisaged in the constitution but also is one that clearly and decisively takes the power to appoint the EC from out of the hands of the representatives of people of India and thereby from out of the hands of people of India and almost places it in the hands of an authority not elected by the people, which certainly is not a situation that strengthens democracy.

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Role of our Apex Court in the matter of interpretation of our Constitution through various judgments right from day one has been very exemplary, splendid, and laudable right from day one which can dumbfound the best of the jurists in the world.

Hardly had the ink on the papers of our Constitution dried that a large number of matters erupted in which constitutionality of various enactments passed by the Legislatures came under challenge. With great erudition, statesmanship, precocity, detachment and vision, the Judges of the Apex Court laid down the basic fundamentals of interpretation as under:-

(a) A court of law must gather the spirit of Constitution from the language used, and what one must believe to be the spirit of the Constitution cannot prevail if not supported by the language vide Keshavan v. State (AIR 1951 SC 128). Where the Constitution has not limited, either in terms or by necessary implication, the general powers conferred upon the Legislature, the courts cannot limit them upon any notion of the spirit of the Constitution vide A.K. Gopalan v. State (AIR 1950 SC 27);

(b) Presumption is always in favour of the constitutionality of an enactment unless shown that there has been a clear transgression of the constitutional principles vide Chiranjit Lal Chaudhary v. Union of India (AIR 1951 SC 41) which was reiterated in several cases including the one in Madhu Limaye v. SDM Monghyr (AIR 1971 SC 2486);

(c) Under our Constitution an enactment can be annulled being ultra vires of the Constitution only when it is proved that the Legislature had enacted the law without there being the source of power in this regard in the Constitution, or that the said enactment was against the express provisions of the Constitution;

(d) Article 14 of our Constitution states that “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

However, we must know that men are unequal; consequently a right conferred on persons that they shall not be denied the “equal protection of laws” cannot mean the protection of the same laws for all. It is here that the doctrine of classification steps in, and gives content and significance to the guarantee of the equal protection of the laws for all persons similarly situated. However, such a classification will be permissible only when the same satisfied two conditions namely, (i) it must be founded upon intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) the said differentia must have a rational relation to the object sought to be achieved by the statute in question vide Budhan Chodhary v. State of Bihar 1956(1) SCR 1045; and Ram Krishan Dalmia v. Justice S.R. Tendolkar (1959 SCR 279).

Our Apex Court had been discharging the functions of adjudicating the constitutionality of various statutes very smoothly and consistently on the above said guidelines till the years 1973-74 where after judicial activism took the centre stage and the Hon’ble Judges started vying with each other in projecting themselves as the vanguards and champions of personal liberty of the citizens by using very literary and ornamental language in their judgments which has resulted into transgression by the Judiciary in the field of Legislatures many a time. Of late, the Apex Court has coined two doctrines for judicial review namely, `constitutional morality’ and `manifest arbitrariness’ since the year 1974 onwards.

Dr. B.R. Ambedkar, the chief architect of our Constitution, had advocated the concept of `constitutional morality’ by describing it as a beacon light which helps to preserve the faith and trust in the constitutional courts. The same was considered indispensable and effective for coordinating the conflicting interests of different people as any powerful and obstinate minority might render the working of the free institutions impracticable, without being strong enough to conquer ascendance for themselves.

Stray references to the phrase `constitutional morality’ can be found in some decisions of the Supreme Court of India. In the famous decision in Kesavananda Bharati (AIR 1973 SC 1461) two of the Judges had made a casual reference of this phrase. Then in the year 1981 in S.P. Gupta v. Union of India (1981 Supp. SCC 87), it was remarked by Venkataramiah J that violation of a constitutional convention would “be a serious breach of constitutional morality”. Then Chief Justice A.P. Shah of Delhi High Court in Naz Foundation v. Government of NCT declared Section 377 IPC unconstitutional to the extent it criminalized consensual acts between two adults in private. Stand of the Union of India that the provision was based upon `public morality’ was discarded by the court by observing that constitutional morality must outweigh the argument of public morality, even if it was the majoritarian view. Then came the famous `Triple Talaq Case’ of Shayara Bano v. Union of India (2017) 9 SCC 1, where our Apex Court laid considerable emphasis in explaining the concept of constitutional morality. The court held that constitutional morality meant `the morality that has inherent elements in the constitutional norms and conscience of the Constitution’. One of the judges (Justice D.Y. Chandrachud) stated that the concept of constitutional morality did not mean only allegiance to the substantive provisions and principles of the Constitution, but signified a constitutional culture which each individual in a democracy must imbibe. Chief Justice Dipak Misra held that the term `constitutional morality’ embraced within itself values such as that of ushering a pluralistic and inclusive society and that the concept of constitutional morality `would serve as an aid for the courts to arrive at a just decision which would be in consonance with the constitutional rights of the citizens, howsoever small that fragment of the populace may be’. In Sabrimala Temple case, where entry to the females from 10 to 50 years of age was prohibited, the said convention was discarded by the Judges of the Supreme Court vide judgment dated 28.9.2018 by stating, inter-alia, that the same was also against the constitutional morality.

The other implement being used by the Apex Court in deciding the constitutionality of various enactments is `manifest arbitrariness’ by using which various enactments have been struck down as being manifestly arbitrary. This tool has germinated from Article 14 of our Constitution which proclaims from housetop equality before the law.

The doctrine of `manifest arbitrariness’ was evolved for the first time in E.P. Royappa v. State of Tamil Nadu (AIR 1974 SC 555) and subsequently in Maneka Gandhi v. Union of India (1978) 2 SCR 621, and Ajay Hasia v. Khalid Mujib (AIR 1981 SC 487) where the Apex Court observed, inter-alia, that content and reach of the right to equality under Article 14 should not be subjected to a narrow, pedantic or lexicographic approach and no attempt should be made to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. It was further observed that equality was a dynamic concept with many aspects and dimensions and it could not be imprisoned within traditional and doctrinaire limits. Article 14 was striking at arbitrariness in state action and ensured fairness and equality of treatment. Article 14 embodied a guarantee against arbitrariness… and (equality) cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits.

The aforesaid doctrine of manifest arbitrariness has now been invoked in two judgments by the Apex Court which pertained to post constitutional laws namely, Hindustan Construction v. Union of India (2019) SCC Online 19 SC 1520; and Committee of Creditors of Essar Steel v. Satish Kumar Gupta 2019 SCC Online 1478) decided on 15.11.2019. In Hindustan Construction case The Arbitration and Conciliation Act, 1996 was amended by Amendment Act of 2015 where-under it was provided that if a party required a stay against the award then the court could impose the condition of depositing the amount in question or part thereof. Various High Courts in the country had given diverse opinions regarding the applicability of the said condition of pre-deposit to pending proceedings. The Supreme Court ruled in some judgment that this condition will be applicable even to arbitral proceedings which were pending on 23.10.2015. By the Arbitration and Conciliation (Amendment) Act, 2019, the Parliament enacted that the requirement of pre-deposit of the amount will not be applicable to arbitral proceedings which were pending on 23.10.2015. The said Amendment Act of 2019 struck down by the Apex Court being manifestly arbitrary. In Committee of Creditors of Essar Steel case supra, one of the issue before the Apex Court was whether the mandatory period of 330 days laid down for completion of entire corporate resolution process in the context of Sections 4 and 6 of Insolvency and Bankruptcy Amendment Act, 2019 was mandatory. The Apex Court ruled that the same was manifestly arbitrary as the Legislature had acted capriciously and irrationally.

Through these techniques the Apex Court gradually has usurped the power of appointment of the Judges of the High Courts and the Supreme Court. The earlier judgment in S.P. Gupta v. Union of India (known as 1st Judges case) (1981) Suppl. SCC 87 was overruled in Supreme Court Advocates on Record Association case (known as 2nd Judges case) (1993) 4 SCC 411 by holding that in the matter of appointment to the higher judiciary, the Chief Justice of India will have primacy and in the case of difference of opinion between the Central Government and the Chief Justice of India, the opinion of the CJI will prevail. Thereafter, in Special Reference No.1 (known as 3rd Judges case) (1998) 7 SCC 739, the Apex Court laid the foundation of the collegiums consisting of the CJI and four senior most Judges in the case of appointment to the Supreme Court, and CJI and two senior most Judges in the case of appointment to the High Court. After a long wait and due consideration, finally the Parliament passed the Constitution (99th Amendment) Act and National Judicial Appointments Commission Act, 2014 providing for constitution of a Commission for the said purpose. The Commission was to consist of six members, with CJI as the Chairman. Other members were two senior Judges of the Supreme Court, Union Law Minister and two eminent persons to be selected by the committee consisting of CJI, Prime Minister and the Leader of Opposition. In the case of appointment to the High Courts, the views of the Governor, Chief Justice of the High Court and the Chief Minister were also to be obtained. Even such a reasonable legislation was struck down in the case of Supreme Court Advocates on Record Association v. Union of India by a majority of 4-1.

Although the Judges of the Supreme Court have been proclaiming from the housetop day in and day out that they are performing their duty with vision, dispassionate approach and distinguishable detachment, but in my humble opinion both the doctrines of `constitutional morality’ and `manifest arbitrariness’ are vague and imprecise and invocation thereof has created a mess and uncertainty in the field of law. One is left guessing as to the exact identity of the constituent facets. There is no method of predicting their effect on any legal or constitutional issues which is not conducive for orderly governance in the country. The traditional touchstone for adjudicating on the principle that there was presumption towards the constitutionality of a statute and that a statute could be struck down only when there was lack of legislative competence or violation of fundamental rights or any provision of the Constitution should not have been deviated from. It is noteworthy that this principle was also invoked even after the doctrines of `manifest arbitrariness’ and `constitutional morality’ had been running in full swing in State of Andhra Pradesh v. Mc Dowell & Co. (1996) 3 SCC 709. The said judgment in Mc Dowell case was again discarded by a Constitutional Bench of the Apex Court by dubbing it as judgment in percurium.

The Hon’ble Judges of the Apex Court should consider the relationship between arbitrary and discretionary power. Conferment of wide discretionary powers is, broadly speaking, an admission that it is not possible to lay down rules for the exercise of that power. An example may be picked up from Indian Penal Code which lays down (with rare exceptions where a particular sentence must be imposed) the maximum punishment by way of fine and/or imprisonment which can be inflicted on persons found guilty of committing specified offences. A discretion conferred upon judges and magistrates ranging from a small fine to substantial fine together with the maximum term of imprisonment prescribed by law can only be described as arbitrary, for no rules and guidelines can be given for the exercise of the discretionary power. If the conferment of such a power violates Article 14, all punishments prescribed by the Penal Code will be void according to the tests laid down by the newly fashioned doctrines by the Judges of the Apex Court. The judges must realize when a law based upon impermissible classification is struck down for violating the equal protection of the laws that does not involve a finding that the law is “arbitrary”. Very highly trained and independent judges can also hold different views as is evident from their dissenting judgments in various cases.

Various enactments have been set aside by dubbing the same as arbitrary and discriminatory without any sound logic or rationale, e.g. in East Punjab Urban Rent Restriction Act, 1949 the provision for eviction of tenants on the ground of personal necessity of the buildings given on rent was applicable only upon residential buildings. The Apex Court in Harbilas Rai Bansal v. State of Punjab (1996-1 PLR 227) held that this classification was irrational and directed that the commercial buildings given on rent could also be got vacated on the ground of personal necessity of the landlord. The Hon’ble Judges failed to discern that there was a logic behind the said classification as the stability of trade and commerce required protection against eviction of tenants from commercial premises. The Judges ought to have realized that presumption of constitutionality assumed that the Legislature correctly understands and appreciates the needs and problems of its own people vide State of Bombay v. F.N. Balsara (1951 SCR 682); R.K. Garg v. Union of India (AIR 1981 SC 2138). Equally, what arbitrariness or manifest arbitrariness was involved in the two cases of Hindustan Construction, and Committee of Creditors of Essar Steel (supra) is not intelligible.

The doctrine of `constitutional morality’ is equally vague and imprecise. The Naz Foundation case in which Delhi High Court had decriminalized Section 377 IPC by invoking the said doctrine was not approved by two Hon’ble Judges of the Apex Court in Suresh Kumar Koushal v. Naz Foundation 2014(1) RCR (Criminal) 286, meaning thereby that the two said Judges did not approve of the said doctrine. Further, in Triple Talaq case of Shayara Bano also there was no unanimity of the Judges on these principles. Two out of the five Judges namely, Chief Justice J.S. Khehar and Abdul Nazeer did not hold that the personal law of triple talaq was liable to be struck down on any of these two doctrines. Again in Sabrimala Temple entry case one of the Judges (Indu Malhotra J) did not hold the practice of ban on entry of women between 10-50 years of age was unconstitutional on either of these two grounds by observing that morality meant different to different persons in our pleural society. In this manner when there is no unanimity regarding the concept of `constitutional morality’ even amongst the Judges of the Apex Court, there is no justification for invoking the same while adjudicating constitutionality of the enactments passed by the Legislature. Let me hasten to add here that the Patna High Court, in the year 1985, held in Yugal Kishore Singh v. State of Bihar (AIR 1985 SC 265) that the powers of judicial review were restricted because of `constitutional morality’ to honour and respect the legislature’s wisdom.

These rhetoric doctrines have ignored the concepts of separation of powers and of checks and balances upon which our constitutional edifice is pinned down. The same are likely to lead to strange and chaotic consequences by destroying the symmetry of our beautifully crafted Constitution. The Hon’ble Judges should rest their judgments on sounder and firm principles instead of being swayed away by rhetoric. A prolific writer of French Renaissance namely, Michel Do Montaigne had wisely stated, “No matter we may mount on stilts, we must walk on our own legs. And on the highest throne in the world, we still sit only on our bottom!”.

The Apex Court is transgressing and intruding in the legislative field gradually like Arabian camel in the tent of the trader as is the fable that you must have heard from your grand parents. They are biting more than they can chew. It is time that the Hon’ble Judges should keep restraint. The Legislature should also take timely steps for the protection of its edifice. Unfortunately, the legislators are lying dormant and asleep. May be because they are always involved in politicking and toppling the governments of each other and have hardly any time for these aspects.

Deviation from the path of rectitude by the President of India in his inaugural address of the new building of the High Court of Rajasthan on 7th December, 2019 vis-a-vis his powers of clemency/pardon under Article 72 of the Constitution of India.

The President is the Chief Executive of the Union of India and the executive power of the Union of India vests in him vide Article 53 of the Constitution of India.

Under Article 72 of the Constitution, the President shall have the power to grant pardons, reprieves of remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence in (a) all cases where the punishment or sentence is by a court-martial; (b) in all cases where the punishment is for an offence against any law related to a matter to which the executive power of the Union extends; and (c) in all cases where the sentence is a sentence of death.

Power to pardon is a part of the constitutional scheme which has been proposed by the people through the Constitution in the Head of the State i.e. the President of India who enjoys high status and such power rests on the advice tendered by the Executive to the President. The Head of the State has the authority by means of an executive act to tender pardons and reprieves and these functions can be discharged even before conviction.

Similar powers have been conferred upon the Governors in the States via Article 161 of the Constitution. Articles 72 and 161 can be reconciled by limiting the power of the Governors who grant pardon in cases not covered by Article 72. If so read the President alone will have the exclusive power to grant pardon in all cases where the sentence of death is prescribed.

Higher the power, the more cautious should be its exercise. The Constitution of India, in keeping with modern constitutional practice, is a constituted document fundamental to the governance of the country, whereby, according to accepted political theory, the people of India have provided a constitutional policy consisting of certain primary organs, institutions and functionaries to exercise the power provided in the Constitution. All powers belongs to the people and it is entrusted by them to specified institutions and functionaries with the intention of working out, maintaining and operating a constitutional order.

Power to pardon is a part of our constitutional scheme and it has to be so treated in the Indian Republic. Through the Constitution the said power has been reposed by the people on the Head of the State and the said power rests on the advice tendered by the Executive to the President, who subject to the provisions of Article 74(1) must act in accordance with such advice.

In Kehar Singh v. Union of India, AIR 1989 SC 653, a Constitutional Bench of five Hon’ble Judges ruled that the order of the President regarding pardon cannot be subjected to judicial review on its merits except with certain limitations. It was also held that it was open to the President, in exercise of the power regarding pardon vested in him by Article 72, to scrutinize the evidence on the record of the criminal case and come to a different conclusion from that accorded by the Court with regard to the guilt of, and sentence imposed on the accused. In doing so, the President does not amend or modify or supersede the judicial record which remains intact and undisturbed. The President acts in a wholly different plane from that in which the Court acted. He acts under a constitutional power, the nature of which is entirely different from the judicial power and cannot be regarded as the extension of it. And this is so notwithstanding that the practical effect of the Presidential act is to remove the stigma of guilt from the accused or to remit the sentence imposed on him. The legal effect of a pardon is wholly different from the judicial super-cession of the original sentence.

As the President is entrusted with the final power of pardon under Article 72, so he is expected to maintain a path of strict rectitude and not comment upon the desirability or non-desirability of the exercise of the said power even in the most ghastly and dastardly offences which may shock the conscience of the nation.

Recently, there was general outcry against gang rape and murder of a lady veterinary doctor in Telangana State in our country. The four alleged rapists/murderers were one fine morning in wee hours were shown to have been killed by the police during some encounter. The picture of encounter projected by the police did not convince the intelligentsia. However, the outrage against the rapists/murderers was so extreme in nature that the general public applauded the police officers who performed this encounter. People by and large abandoned the concern for the Rule of Law in the country.

When the outcry against the rapists and murderers was in the full swing then in that very period there was inauguration of the new building of the High Court of Rajasthan on 7th December, 2019. The inaugural function was presided over by Sh. Ram Nath Kovind, the President of India. In the select gathering were present the Chief Justice of India, Law Minister of India, various Judges of the High Court, and various advocates etc. The President, while speaking in the said gathering, also touched the resentment going on in the psyche of common man because of the recurrent events of gang rapes and murders. While addressing the audience the President advised the parliamentarians to amend the law to the effect that the provision of pardon in death penalty was deleted in the cases falling within the ambit of POCSO Act, 2012.

It is true that the President is also after all a human being who cannot remain aloof and in complete isolation from the public cries. Yet he being the repository of the powers of pardon under Article 72 should have maintained a discreet silence. Some clemency petitions of the offenders involved in gang rape-cum-murder cases are already pending with the President and many more may come before him in the near future. In such a situation the authority exercising the power of pardon should maintain a path of rectitude. Otherwise the applicants who have moved the mercy petitions or who are to move such petitions will lose confidence in the impartial exercise of this power by the Head of their State who has already expressed disapproval in the matter of granting pardon in such cases. Even the Courts are not infallible. May be in one thousands of cases is such where conviction is recorded by the Courts without there being solid reasons behind the same. Such an error can be rectified by the Head of the State via Article 72 of the Constitution. Even though the power under Article 72 is executive in nature, but it cannot be denied that functions intended to be performed there-under should have no tinge of bias or arbitrariness therein. If there is power to decide any matter then duty to act judicially without prejudice to any person is implicit. Discretion is a science or understanding to discern between falsity and truth, between right and wrong, between shadows and substance, between equity and colourable glosses and pretences, and not to do according to their wills and private affections or opinions.

Let me hasten to add that our worthy President is a noble soul and I hold him in highest esteem otherwise. The idea of penning these lines through this write up just cropped up in my mind as I thought that the utterance by the worthy President recommending deletion of pardon powers in such matters could perhaps be avoided.

On 5 August 2019, the Hon’ble President of India Sh. Ram Nath Kovind issued a constitutional order i.e.the Constitution (Application to Jammu and Kashmir) Order, 2019, hereinafter referred as Order, 2019 superseding the Constitution (Application to Jammu and Kashmir) Order,1954, hereinafter referred as Order,1954 and making all the provisions of the Indian constitution applicable to Jammu and Kashmir. It is pertinent to note here that the said Order, 2019 has in no case abrogated the Article 370 as the said Order, 2019 has been issued in exercise of powers conferred under Article 370(1) not under Article 370(3). The issuance of the said Order, 2019 brings a lot of happiness on the faces of the people of the country and everyone started eulogising the Narender Modi led Government of India. On the other hand, there is a group of people who is opposing and lambasting the Namo government for such a step being unconstitutional and hence illegal, which poses an important question that is, whether the Order, 2019 is made within the constitutional limits?

Before parting with this issue, one must understand the historical background of Article 370 as what was the need of the hour to insert Article 370 in the Constitution of India. On October 26, 1947, the princely state of Jammu and Kashmir accedes to India after execution of a legal document called as Instrument of Accession, hereinafter referred as IoA, by Maharaja Hari Singh, then ruler of J&K. The IoA gave India’s parliament the power to legislate in respect of J&K only on the matters of defence, external affairs and communication and matters ancillary thereto. Clause 7 of the IoA declared that the state could not be compelled to accept any future Constitution of India. The state was within its rights to draft its own Constitution and to decide for itself what additional powers would extend to the Central government. In view of this, the representatives to the constituent assembly of J&K requested that only those provisions of the Indian Constitution that correspond to the original IoA should be applied to the state. Accordingly, the Article 370 was incorporated into the Indian Constitution, which stipulated that the other Articles of the Constitution that gave powers to the Central Government would be applied to Jammu and Kashmir only with the concurrence of the state’s constituent assembly or government of the state. This was a “temporary provision” as its applicability was intended to last till the formulation and adoption of the state’s constitution. However, the state’s constituent assembly dissolved itself on 25 January, 1957 without recommending either abrogation or amendment of the Article 370. Thus, the Article 370 has become a permanent feature of the Indian Constitution and cannot be abrogated, as also confirmed by various rulings of Supreme Court of India, see State bank of India v. Santosh Gupta, Law Finder Doc Id #813963, and the High Court of Jammu and Kashmir.

We are all not oblivious of the situation that since June 20, 2018, the state of Jammu and Kashmir is under the Presidential rule after dissolution of the state assembly, which also raises a question that whether after dissolution of state assembly, the Order,2019 can be made? The answer to this question lies in the Article 370(1) itself. Article 370(1) enumerates four fundamental aspects, firstly, Parliament has power to make laws for the state of J&K only to those matters which are correspond to matters specified in the IoA, which are defence, external affairs and communication and matters ancillary thereto, secondly , Parliament has power to make laws of such other matters in the Union List and Concurrent List specified by the President in an order, with the concurrence of the Government of the state only, thirdly, the provisions of Article 1, Article 268 and Article 370 shall apply to J&K State, which cannot be abrogated except under the purview of Article 370(3), fourthly, other provisions of the Constitution of India shall apply to the state of J&K, subject to exceptions and modifications as specified by the President in an Order, with the concurrence of the Government of J&K only. From the bare reading of the Article 370(1), it is apparent that the provisions of Article 1, Article 268 and Article 370 shall in every case, except in the case of abrogation or cessation under Article 370(3), apply to J&K and secondly, the president can, only with the concurrence of the J&K government, make an order to the effect of applicability of the provisions of Constitution of India (except Article 1, 268 and 370), which implies that in no case the President can make an order without the concurrence of the Government of J&K in view of Article 370(1)(c) which makes the Article 370 applicable to J&K in all cases, except in the case of abrogation under Article 370(3), which means that if the government of J&K gives its nod or concurrence to the order made by President prior to its promulgation, only in that case the order will be binding upon the said state and not otherwise, which depicts that in present scenario, the promulgation of Order,2019 is purely unconstitutional and repugnant to the basic objective and soul of the IoA and Article 370 as the said Order, 2019 has been made without the recommendation or concurrence of the state government of J&K.

Now, if we closely scrutinise the said Order, 2019, it will transpire to us that the Order, 2019 has been made with the concurrence of the government of the said state, notwithstanding the fact that at present, there is no government exist in the said state and the state is under the President’s rule, which makes only one possibility, i.e., the Order, 2019 has been made with the concurrence of the incumbent Governor of J&K. But, whether the concurrence of the Governor means the concurrence of the said state government as per Article 370. The answer to this question is a big NO. For this, we have to read Article 370 with the Order, 1954. The Order,1954 explicitly states the government of the state of J&K includes Governor of J&K acting on the advice of Council of Ministers, which implies that the Governor alone without advice of Council of Ministers cannot accord his concurrence. Resultantly, in the present situation when the said state in under President’s rule, the governor cannot accord his concurrence for the making of order under Article 370, which in itself makes the Order, 2019 illegal and unconstitutional and preposterous one.

Secondly, the said Order, 2019 has indirectly amended Article 370 which transgressed the limits of the Constitution of India. The said Order, 2019 has amended Article 370(3) by substituting the expression “Constituent Assembly” with “Legislative Assembly of the State”, which is also abhorrent to the constitutional provisions as the President cannot amend the constitution in any case since such power only vests with the Parliament (Article 368) and even when Parliament is not in session, then also, the President cannot amend the Constitution by promulgating Ordinance. Resultantly, such an amendment in Article 370(3) ought not to have been done without being tabled, discussed and debated in the Parliament of India and after the concurrence by the state government of J&K.

The Order, 2019 does not repeal or revoke Article 370 by using Article 370(3). However, it makes Article 370 excessively weak and brings a monumental change in its strength and made the Article 35-A completely ineffective. Such a step taken by the President is nothing but a severe blow on the constitutional machinery and democracy of the India while keeping at stake the fraternity, equality and justice, which perturbed the residents of J&K and their future seem to have been in shambles to them. The Order, 2019 may be challenged soon and the interpretation given by the Supreme Court shall prevail at the end.

Constitution of India

The Constitution of India is the Supreme Law of India. It lays down the framework defining fundamental political principles, establishes the structure, procedure, powers and duties of Government institutions and sets out fundamental rights, directive principles and duties of citizens. It is the longest written, detailed Constitution of any sovereign Country in the World.

Constitution of India declares India a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, liberty and endeavors to promote fraternity among them. The Constitution of India opens with a “Preamble”. Preamble simply means that “the introduction of the statute”. In Berubari Union Case the Supreme Court observed that the Preamble to the Constitution was a key to open the mind of the makers and shows the general purposes for which they made the several provisions in the Constitution.

Two Sides of a Coin

Fundamental Rights and Duties

Fundamental Rights are defined as basic human freedom which every Indian citizen has the right to enjoy for a proper and harmonious development of personality. These rights apply to all citizens, irrespective of race, place of birth, religion, caste or gender. On the other hand Fundamental Duties are defined as the moral obligation of all citizens to help, promote a spirit of Patriotism to uphold the unity of India. Rights and Duties are two sides of a coin on which the chariot of life moves forward smoothly. Life can become smoother if rights and duties go hand in hand and become complementary to each other

Fundamental Rights

Part III of the Indian Constitution talks about fundamental rights. It secures to the people of India, certain basic, natural and inalienable rights. These rights have been declared essential rights in order that human liberty may be preserved, human personality developed and an effective social and democratic life promoted. These fundamental rights represents the basic values cherished by the people of this country since the Vedic times and they are calculated to protect the dignity of the individual and create conditions in which they can develop their personality to the fullest extent.

Rights Granted by the Indian Constitution

The Indian Constitution granted mainly seven fundamental rights to the citizen of India and those rights are :-

• Right to Equality

• Right to Freedom

• Right to Freedom of Religion

• Right against Exploitation

• Cultural &Educational rights

• Right to Constitutional Remedies

• Right to Education

Right to property is repealed

Importance of Fundamental Rights

The Fundamental Rights were included in the Constitution because they were considered essential for the development of the personality of every individual and to preserve human dignity. These fundamental rights help not only in protection but also the prevention of gross violation of human rights.

The very purpose of guaranteeing the Fundamental Rights was to keep them beyond the reach of absolute majority of legislature and to establish the lawful principles to be applied by the courts. The Constitution framers well envisaged the danger of a despotic rule coming into power with absolute majority and so the purview of the legislature to a great extent and the courts were given the powers to safeguard these basic rights.

Fundamental Duties

Originally the Constitution of India did not contain any list of Fundamental Duties. In other words, enjoyment of fundamental rights was not conditional on the Performance of fundamental duties. It was on the Soviet Model that Fundamental Duties were added to the Indian Constitution in 1976. The Fundamental Duties are contained in Article 51 A of the Indian Constitution.

Object of Fundamental Duties

The Fundamental Duties have been incorporated in the Constitution with mere object to remind every citizen that while enforcing his fundamental rights, he must also be conscious of his fundamental duties. That he can not enforce his fundamental rights without adhering to the fundamental duties prescribed in Article 51A. Rights and Duties are correlative .The right of the one may be the duty of the other. It is fallacy to think that under our Constitution, there are only rights and no duties. These duties would help to strengthen our democracy. These provisions are made for dealing with anti – national activities whether by individual or associations.

List of Fundamental Duties : Article 51A, Part IV A

The Indian Constitution specifies the list of fundamental duties of the citizens. It says “It shall be the duty of every citizen of India :

• To abide by the constitution and respect its ideal and institution; In S.N. Chouksy v. Union of India, Petitioner filed a PIL in M. P. High Court in Jabalpur regarding the disrespect of National Anthem in the movie Kabhi Khushi Kabhi Gum. According to Petitioner when the national anthem was being played in the movie, he stood up in the regard of national anthem but audience said that he was obstructing their view instead of standing up they asked him to sit down. A Division Bench in High Court agreed with Petitioner’s Contention and banned screening of the film across India. But the order later stayed. Petitioner moved the Apex Court a couple of months ago armed with instances “insult to the national anthem” and seeking appropriate order. The highest Court of the land has ordered for the national anthem to be played before every movie screening in cinema halls, for the national flag to displayed on the screen while the national anthem is played, and for everyone to stand for its 52 seconds, Court further said that it is the duty of every citizen of the Country to respect the national anthem .

• To cherish and follow the noble ideals which inspired our national struggle for freedom.

• To uphold and protect the sovereignty, unity and integrity of India .

• To defend the country and render national service when called upon to do so.

• To promote harmony and the spirit of common brotherhood among all the people of India transcending religious linguistic and regional diversities to renounce practices derogatory to the dignity of women. In Chandre Rajkumari v. Police Commissoner, Hydrabad. The A.P. High Court has observed that holding of beauty contests by depicting in any manner the figure of a woman, form, body or any part thereof in such a way so as to have the effect of being indecent or derogatory to denigrating women, offended Article 14, 21 & 51 A(e) .

• To value and preserve the rich heritage of our composite culture.

• To protect and improve the natural environment including forests, lakes, rivers, and wild life and to have compassion for living creatures. In SHRI Sachidanand Pandey Versus State of West Bengal, The Supreme Court held that whenever a problem of ecology was brought before the court, the court was bound to bear in mind Article 48&Article 51A(g). It has been said that the fundamental duties must be used by the courts as a tool to tab, even a taboo on state action drifting away from constitutional values.

• To develop the scientific temper, humanism and the spirit of inquiry and reform; In Dr. Dasarathi v. State of Andhra Pradesh. The Andhra Pradesh High Court held that to strive we all owe a duty under Article 51 A (h) to ourselves to strive towards excellence in all spheres of individual and collective activities so that this notice might constantly rise to higher levels of endeavor and achievement. By rewarding the psychophancy, the court held that only helps to retard the growth of efficiency and excellence. Its being a duty of every citizen to develop scientific temper, humanism, and the spirit of enquiry and reform.

• To safeguard public property and adjure violence.

• To strive towards excellence to all spheres of individual and collective activity, so that the nation constantly rises to higher levels to endeavor and achievement. Further one more fundamental duty has been added to the Indian Constitution by 86th Amendment of the constitution in 2002.

• Who is apparent or guardian, to provide opportunities for education to his child, or as the case may be, ward between the age of 6-14 years.

Additional Duties

Apart from the duties mentioned in the Indian Constitution there is some additional duties as well and they are :

(I) Duty to vote

Article 326 of the Constitution read with Section 62 0f the Representation of People’s Act, 1951 confers the right to vote. However, quite often the question arises as to whether that right also implies an obligation. The voter turnout during the last general election amounted only to about 67%. This voter apathy should be taken seriously and an should be made to make voting a citizenship obligation. One method through which this may be achieved is by developing a system of incentives for voters and conversely disadvantages for those who abstain from performing their duty to vote. A very large section of people can be motivated to vote this way.

(II) Duty to pay tax

The tax gap (the revenue that a government is expected to receive as against the revenue it actually collects) continues to increase every year. The greatest indicator of this is the fact that the size of India’s shadow economy as a share of the GDP reached 24.3% in the year 2012. Research has found that tax evasion is a direct result of lack of trust among the people, in general, and the Government, in particular. Citizens must believe that their taxes are bound to be used for public good.

(III) Duty to help accident victims

Every 60 minutes 16 persons die in traffic accidents in India. According to the Law Commission of the India, at least 50% of fatalities can be prevented if road accident victims receive medical attention within the critical first hour after the accident. The Karnataka Government’s decision to frame a “Good Samaritian Law” is a step in the right direction with the number in the number of accidents, it has become pertinent for India to recognize this duty as one owed by its citizens towards each other. There is Supreme Court said that The police will allow the good smaritan to leave after having provided the information available to him/her, and no further questions will be asked of him/ her if he/ she does not desire to be a witness. If in a case a good smaritan chooses to be a witness, she will be examined with utmost care and respect.

(IV) Duty to keep premises clean

Prime Minister Narendra Modi’s Swachh Bharat Mission has received tremendous support from people from all walks of life The most effective mechanism to tackle uncleanliness is to sensitize people about this duty. Therefore, it is imperative that a fundamental duty to this effect to be added to the Constitution.

(V) Duty for a better society

It is not enough that a citizen refrains from committing wrong; he has a duty to see that fellow citizens do not indulge in the commission of wrongs. There is also a duty for a better society which is given before some months ago by our Prime Minister Narendra Modi that is “do not waste food” In a talk show called “Man ki Baat” where Modi ji requested to all citizens of our country that do not waste food, if there is any situation where there is chances of wastage of food, in that situation people can call the NGO’s who help to provide that food for those people who does not have even a one time meal of the day.

(VI) Duty to raise voice against injustice

Now a days people seem to have stopped reacting to atrocities, they neither report crimes nor volunteer to testify in a court. The duties a victims or witness can be classified into two main categories :- duty to report a crime and duty to testify in court. The state must also on its part work to ensure that book does not become a Kafaesque nightmare for the fight to bring the offender to victim of witness.

(VII) Duty to support bonafide civil society movements

Citizens have a moral duty to organize themselves or support citizen groups so that the gap in governance left by the executive can be filled and the rights guaranteed by the Constitution are made available to every citizen. Therefore, it is proposed that there must be an addition to Part IV- A of the Constitution to that effect.

Importance of Fundamental Duties

We should all acknowledge our responsibility to perform our fundamental duties. The importance of Fundamental Duties are :-

(I) The Fundamental Duties enumerated in Article 51A constitute a constant reminder to the citizens that they have duties in building up a free, egalitarian ,healthy and responsible society. These are expected to act as damper reckless and anti – social activities on the part of some individuals.

(II) India is a multi racial and multi regional country. Such a vast democratic country like India can prosper only when the Citizens of the Country respect its integrity and promotes cultural harmony .

(III) Environmental pollution has become a great cause of concern, not only for India but for the entire humanity. unless, we all take the pledge to keep our environment free from pollutants, there remains the threat of undesirable consequences.

(IV) The inclusion of providing opportunity for education for children as a fundamental duty is a big step forward towards safeguard of human rights and abolition of social justice.

Difference between Fundamental Rights and Fundamental Duties :-

Fundamental Rights and Fundamental Duties go hand in hand. But there is slight difference between two and I.e.

(I) Fundamental Rights applies to both citizens and foreigners, but Fundamental Duties apply only to the citizens.

(II) Fundamental Duties are non – justiciable in nature i. e. they can’t be taken to court of law if they are not followed.

(III) Fundamental Duties lack legal sanction and direct enforcement. But Parliament can enforce if it wants via proper legislation.

(IV) Fundamental Rights have impact on the Government but Fundamental Duties have impact in the Citizens.

(V) Rights are what we want others to do for us whereas the duties are those acts which we should perform for others.

Conclusion

At last I would like to conclude that our Indian Constitution is a “bag of borrowing”, which simply means that, that we borrow different concepts from different-2 countries. This bag of borrowing was enforces in the year 1950. At that time there was some concepts which were not taken up at that time but after some time those concepts were amended in the Indian Constitution. Fundamental Duties amended in the Constitution in 1976. This concept was borrowed from Soviet Model. Fundamental Duties imposes certain moral obligation on the citizens of India. Fundamental Duties aware every citizen of this country towards their nation’s well-being. Fundamental Duties are simply a concept of performance, obligation which we should do for others and for our nation. Fundamental Duties are non-justiciable but every citizen of India should follow them strictly because it is in the favor of the country. It is the believe that if every citizen follow their Fundamental Duties seriously, our country rises to its highest level of endeavor and achievements.

References

(I) WWW. Wikipedia.org.Com

(II) Kumar, Professor Narender (2011). Constitutional Law Of India, Allahabad Law Agency (Law Publishers, Faridabad, Haryana), Page no 27

(III) http:// enm. Wikipedia.org.in

(IV) Gupta, S.C. (2008). 151 Essay. Arihant Publications (I) Pvt. Ltd. Meerut, Page number 237

(V) WWW. Importantindia. com

(VI) Kumar, Professor Narender (2011). Constitutional Law of India. Allahabad law Agency (Law Publishers, Faridabad, Haryana) Page number 591

(VII) Justice kurian Joseph’s speech on New set of Fundamental Duties : The Hindu (www. Thehindu .com)

(VIII) WWW. Slideshare net.in

(IX) WWW. Indian Kanungo.com

(X) Kumar, Professor Narender (2011). Constitutional Law of India. Allahabad Law Agency (Law Publishers, Faridabad., Haryana) Page number 501, 502, 503

(XI) http://thewire.