Only one state has an act for gig workers—Rajasthan—as of now, and if this draft becomes law, Karnataka would be the second state to enact a law for gig workers’ welfare. Notably, the Indian National Congress (INC) was the ruling party in Rajasthan, as it is now in Karnataka when the act was passed in the legislative assembly. Telangana, another state in which a gig worker draft law has been on the cards, is also a Congress-ruled state. However, Telangana’s law is not publicly accessible yet, and information on it was reported by sections of the media.

A few common threads

Generally, all state governments, as of now, seem to be following a set structure in terms of the welfare of gig workers.

One, in the definitions, they define:  

i) Aggregators to include major players like Swiggy, Zomato, etc., and smaller players like, say, Shoffer—a luxury electric car ride-hailing service based out of Bangalore.  

ii) Gig workers to include the delivery or ride partners or other such people registered on these platforms for work.

Two, they constitute a board to oversee the welfare of workers and ensure the implementation of the act.

Three, they establish a welfare fund to which the aggregators will be made to pay a certain amount per transaction per worker or some other mechanism.

Four, they outline the rights of the workers and the responsibilities of the aggregators, along with stating the penalties for violations.

While all these elements are present in the Karnataka Gig Worker law draft, it is important to understand the changing contours of employment relations in the gig economy year by year, along with the growing trend of gig work, when drafting the provisions of the law. For example, food delivery workers wear uniforms of the brand they are working with, as mandated, thus providing free marketing to the brand as they ride through the city. This is not factored into the pay given to them, and in fact, the uniforms are supposed to be bought from the brand by the workers themselves. These types of disguised employment conditions are not considered by the government while it defines the relationship between aggregators and workers.

In this context, this article will discuss the Karnataka Gig Worker law, its similarities and differences with the Rajasthan Gig Workers law, and the potential for improvement in the legislation on Gig Worker Welfare.

Draft Karnataka-based Gig Workers (Social Security and Welfare) Bill, 2024

The draft bill defines an aggregator as a digital intermediary for a buyer of goods or user of services to connect with the seller or the service provider, and includes any entity that coordinates with one or more aggregators to provide the services. Essentially, a food delivery app like Swiggy, or an app that facilitates the hiring of electricians or beauticians like Urban Company, comes under the definition.

Section 2(e) of the Act defines gig workers as a person who performs work or participates in a work arrangement that results in payment based on terms and conditions laid down in such a contract. This includes all piece-rate work, and whose work is sourced through a platform, in the services listed in Schedule-I.

The Schedule includes the following services:

1.   Ride Sharing Services  
2.   Food and Grocery Delivery Services  
3.   Logistics Services  
4.   E-Marketplace for wholesale/retail sale of goods and/or services—B2B/B2C  
5.   Professional Service Providers  
6.   Healthcare  
7.   Travel and Hospitality  
8.   Content and Media Services

The draft bill has provisions for the rights of the gig worker in Section 6, granting them the right to register with the Gig Workers Welfare Board—established under Section 3—and the right to access general and specific social security schemes, as well as the right to access a grievance redressal mechanism (Section 7). This Grievance Redressal Mechanism involves either a complaint to the state government-appointed officer or a petition through a web portal whose link should be provided on the aggregator’s website.

The draft also outlines several responsibilities for aggregators:

1. Aggregators must provide a database of workers to the board and update it (Section 10).  
2. Aggregators must register themselves (Section 11).  

3. Aggregators must ensure that the contract is fair, easily understandable in a language comprehensible to the worker and listed in the 8th Schedule of the Indian Constitution. Any change in the contract should occur with prior notice, and termination of the contract by the worker on account of the change should not affect the entitlements they were supposed to receive. 

4. Aggregators must communicate to the gig worker the parameters of allocation, distribution, assessment, and grounds for denial of work, as well as the parameters of the rating system and categorization of the workers on the quality of service, log-in time, etc. if such categorization is done by the employer (Section 14).

5. Aggregators cannot terminate the gig worker without prior notice of 14 days, and the contract must have an exhaustive list of grounds for termination or deactivation from the platform (Section 15).

6. Aggregators must pay workers weekly without delay (Section 16).

7. Aggregators must ensure reasonably safe and healthy working conditions, as practicable as possible (Section 17).  

8. Aggregators must ensure that a grievance link is available on their website and constitute an internal dispute resolution committee if they have more than 50 workers. These disputes include failure to adhere to the responsibilities mentioned above (Section 24). 

9. Aggregators must appoint a human point of contact for queries, with workers having the option to communicate in Kannada, English, or any 8th Schedule language known to them.

The draft also proposes the establishment of a welfare fund, to be funded by the aggregators at a percentage of the pay of platform-based gig workers per transaction or based on annual state-specific turnover, as may be notified by the government. For this purpose, the draft proposes a Central Transaction Information Management System where all transactions are mapped and monitored by the Board to ensure that payments made to workers and deducted fees are recorded and accounted for. Penalties range from Rs. 5,000 to Rs. 1, 00,000 and are compoundable unless the offense has been committed on more than three occasions.

It was also reported in the media that the government and aggregators agreed on levying a cess per transaction rather than based on state-specific turnover.

Similarities and differences with the Rajasthan Act

Both laws establish a board, give similar powers to the gig worker welfare board, and establish Central Monitoring Systems. In essence, both laws grant the same rights to workers, impose the same responsibilities on aggregators, and establish welfare funds.

However, the difference lies in the details of these broad structures. For example, the Rajasthan Act explicitly recognises the right of workers to participate in all decisions taken for their welfare through representation on the board. In constituting the board, the Rajasthan Act mandates that one-third of the members shall be women. The Karnataka draft misses these provisions and does not have as many members on the board. The Rajasthan law includes 12 board members, including the in-charge minister, while the Karnataka draft includes 10 members, with five being ex-officio members from various departments.

The Karnataka Act also emphasises transparency and the need for communication in languages understandable by the worker. By making it mandatory for the aggregator to provide details of the rating system or categorization of gig workers based on the quality of service rendered, log-in time, or other criteria, the draft attempts to lift the veil under which aggregators have operated until now.

Other key differences can be found in the welfare fee and penalty sections. The draft Karnataka law chooses an either-or approach, where the welfare fee could either be a percentage of each transaction or a percentage of the state-specific annual turnover. The Rajasthan Act does not mention turnover. In terms of penalties, Rajasthan’s law imposes penalties ranging from Rs. 5 lakh to Rs. 50 lakh. The Rajasthan Act also has provisions for interest payable on delayed payment of the welfare fee.

Potential for development

There is much room for development in the Karnataka draft law. While the fundamental question of defining the relationship between the gig worker and aggregator has not been answered, the draft leaves many concerns in the areas it chooses to operate in.

For example, it does not consider women in the gig workforce, nor does it enact specific provisions to protect their interests, such as maternity-specific provisions where women do not have to lose their categorization within the platform if they take a maternity break.

The bill has already been reportedly opposed by various companies due to concerns about compliance, with claims that it will hurt the ease of doing business in the state. While these concerns are expected, the sheer volume of compliance measures businesses must adhere to under the act raises doubts about its effective implementation. Meanwhile, Kerala’s Minister for Labour, V. Sivankutty, stated in August that the government intend to introduce the Kerala State Platform-Based Gig Workers (Registration and Welfare) Bill, 2024 in the assembly session this October.

In this paradigm, where the government seems to have decided not to accord the status of a worker to the gig worker and the status of an employee to the aggregator, the least it could have done is to provide for the increased bargaining power of the worker. This could have been achieved through the official recognition of unions in the gig economy, allowing bargaining to be done with unions or federations of such unions.

Conclusion

Despite the improvements in the Karnataka draft law, the fundamental question and demand remain unheeded. With the control aggregators usually exert on gig workers, the demand has been that gig workers be recognized as employees. With the BJP in Rajasthan not giving importance to the previously enacted gig worker law, and Congress governments consistently defining the relationship between gig workers and aggregators as independent individuals rather than employees, the future possibilities look narrower. 

Such a law should not be a choice between no protection at all and meagre protection for gig workers.

(The writer is a researcher with the organisation)

Related:

Rajasthan’s Gig Worker Law, a step towards industrial democracy

Karnataka Budget 2023-24: CM announces Rs. 4 lakh life & accident insurance policy for gig workers

Report Highlights Poor Working Conditions for Gig Workers; Uber, Ola, Amazon Score Zero

Report Highlights Poor Working Conditions for Gig Workers; Uber, Ola, Amazon Score Zero

India’s Gig Workers: Overworked And Underpaid

The post Karnataka’s draft law for welfare of gig workers, an insufficient tokenism? appeared first on SabrangIndia.

The incident, which occurred on March 16 around 10:30 PM in the night when some foreign students from Afghanistan, Tajikistan, Sri Lanka, and African countries had gathered to offer Taraweeh (night prayer offered during Ramadan) close to their hostel in Block A of Gujarat University, which is located in Ahmedabad has caused an international uproar.

A serious and embarrassing incident of hate crime has emerged from Gujarat University where five students from overseas have been attacked for offering namaz and also found their rooms vandalised by the mob. Pertinently, Sri Lankan and Tajik student, one each, were badly injured in the attack, and had to be hospitalised. As bad as the violence on the person was the fact that the mob vandalised AC, phones, laptops, and motorcycles of the students and several videos of the incident has seen been doing rounds on X (formerly Twitter).

In one of the videos that emerged the mob can be seen pelting stones and other material from the ground while verbally abusing foreign national and shouting “Jai Shree Ram”. The nature of the hate crime in the present case suggests not only communal hatred but also xenophobia and racism, as apparent from the sloganeering and curses hurled at the foreign students, which is captured on record.

According to other students from overseas, who witnessed the episode, the incident happened when some foreign students were offering the Taraweeh in the open area near their hostel in Block A of Gujarat University around 10: 30 PM in night when few people started objecting to them and kept shouting “Jai Shree Ram”. Thereafter they left briefly following the argument before returning back with the huge mob of around 25 people, equipped with knifes and iron rods, which started vandalising the hostel rooms, motor cycles and also attacked some of the foreign students, in which the two students were hospitalised. The five students from African countries, Afghanistan, Tajikistan, and Sri Lanka were injured in total.

When the mob first arrived the security guard tried to stop them but soon found himself overpowered by the mob who went on the rampage, destroying the property and attacking the students. In another video, the student can be heard saying that though the police arrived later (around 5 minutes after it received the call at 10:51 PM, as per the Commissioner of Police G S Malik) on the scene they did not detain the members of the mob who could be seen running away at the time in the full presence of the police.

Following the incident, the Commissioner of Police G S Malik has given the statement in which he said that the incident involved around 20-25 people, who were outsiders, and it began after the argument ensued between the two groups. He informed that the FIR has been register against 25 people and the state government is cognizant of the matter. The Hindustan Times reported that the FIR has been registered under Indian Penal Code provisions for rioting, unlawful assembly, voluntarily causing hurt, damage to property and criminal trespass, among others.

On March 17, Ahmedabad Police tweeted that it has arrested two accused in the matter, namely, Hitesh Mevada and Bharat Patel. Ahmedabad City Police Commissioner, G S Malik is on record stating that nine teams have been formed to conduct a probe into the incident. Along with Hitesh Mevada and Bharat Patel, other accused arrested by the police include Shitij Pandey, Jitendra Patel and Sunil Dudhirua. Notably, the accused have not been identified with any political or socio-religious group as of now.

Shockingly, the GU VC Neerja Gupta instead of downrightly condemning the incident was quoted by NDTV suggesting that cultural sensitivity must be inculcated in foreign students! “These are foreign students and when you go abroad, you must learn cultural sensitivity. These students need an orientation. We will sit with them, provide cultural orientation and discuss how to strengthen their security” NDTV reported.

Response from the Authorities

The injured students reportedly came to study in India under the Indian Council for Cultural Research (ICCR) scholarship, which comes under the Ministry of External Affairs. The MEA in the statement has acknowledged the incident and noted that the “State government is taking strict action against the perpetrators.” It further informed that one of the students has been discharged from the hospital after receiving medical attention.

Gujarat University (GU) has informed that international students will be shifted to another hostel meant for NRIs in three days, and will strengthen its security arrangements for the hostels. Additionally, GU VC Neerja Gupta was reported saying that the university has replaced the coordinator of its study abroad programme and NRI hostel warden with immediate effect. She also suggested that “there was some tension between those in the mob and some overseas students, and yesterday’s events led to an escalation”. BBC quoted the Vice Chancellor as saying, “’As per the information available with me, this (prayers) is not the main issue’”. The VC seems to deny that the incident had anything to with player.

In the past similar incidents have occurred in the University was confirmed by one foreign student. Noman, a student from Afghanistan, told BBC Gujarati that similar incidents have happened before. “There is a lot of risk here for students from other countries,” he alleged.

Rising instances of intolerance in Gujarat

Earlier in December 2022, the Maharaja Sayajirao University of Baroda’s Sanskrit Mahavidyalaya was in the news when two students had offered namaz on the premise. The university authorities suggested counselling of the students to make them understand that religious worship should not be conduct in the educational institutions. Right-wing group Vishwa Hindu Parishad had gone to the place and sprinkled Gangajal to purify the place and performed ram-dhun, alleging Islamic conspiracy behind offering the namaz.

Similarly, in June 2023, two men from Nagaland were attacked for selling ‘North Eastern’ food in Ahmedabad. Reportedly, 10 men attacked them saying how could they sell non-vegetarian food items and north-eastern food in a place like Gujarat which is dominated by Hindus, reported Times of India.

In October 2023, Kalorex school teacher was beaten by protestors for teaching students to offer namaz as part of religious activity. The school had even clarified that it did similar activities for different religions for all students.

Perhaps, today the extent of hate has reached such a threshold that simply exchanging different values and traditions itself has become intolerant. With its long history of communal violence, the state of Gujarat has presented one more instance of hate crime in its troubled relationship with establishing communal harmony.

(The author is part of the CJP’s Legal Research Team)

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On March 11, hearing the contempt petition filed by the Association for Democratic Reforms (ADR) and Communist Party of India (Marxist) while simultaneously hearing the extension application filed by State Bank of India (SBI), the court rejected the arguments of the bank that it requires further time to comply with its February 15 order, and demanded urgent compliance of the same. It sternly asked SBI to disclose all the details about the bonds, including date of purchase, denomination of each bond purchased as well as information on the purchasers of the bonds and the political parties who encashed it.

The CJI led bench directed SBI to comply with its order latest by March 12, 2024, and asked Election Commission of India (ECI) to compile the information and publish the same on its website by March 15, latest by 5 PM. Furthermore, the court warned that while it is not considering contempt proceedings against the bank at this stage, the failure to comply with the its order may incline the court to proceed against SBI  for wilful disobedience. Notably, the court also observed that it will ask ECI to disclose the information about electoral bonds that it had received in a sealed cover from political parties and which it has since kept in safe custody following the interim order of this court on 12 April 2019.

Brief Background

On February 15 this year the Supreme Court of India in a significant ruling stuck down the electoral bond scheme and accompanying amendments made to the Companies Act, Income Tax Act, and the Representation of People Act, as unconstitutional for violating Article 14 (due process) and 19(1)(a) (freedom of speech and expression – right to information being part of it) of the Indian Constitution by permitting anonymous and unlimited political funding, thus affecting the integrity of free and fair elections and the right to information of voters. The court had noted in its order that “The statutory amendments and the Scheme are manifestly arbitrary because (i) large scale corruption and quid pro quo arrangements would go unidentified due to the non-disclosure of information about political funding; (ii) they enable capture of democracy by wealthy interests; and (iii) they infringe the principle of ‘one person-one vote’ because a selected few overpower the voice of the masses because of their economic wealth”. The bench also held that voters have the right to information which is essential for them to exercise their freedom to vote.

In the same order it had ordered State Bank of India (SBI), the authorised bank under the scheme, to disclose the details of the bonds purchased and encashed by political parties for the duration of April 12, 2019 to February 15, 2024. It had order SBI to disclose the details by March 6, 2024 to ECI, which would publish it by 13 March, but SBI failed to disclose the details, resulting in the contempt petition against the bank. The interim order on April 12, 2019, as aforementioned, had already asked parties to submit the bonds details to ECI.

The interim order of April 12 authored by the then CJI Ranjan Gogoi, Deepak Gupta, and Sanjeev Khanna read, “…according to us, the just and proper interim direction would be to require all the political parties who have received donations through Electoral Bonds to submit to the Election Commission of India in sealed cover, detailed particulars of the donors as against the each Bond; the amount of each such bond and the full particulars of the credit received against each bond, namely, the particulars of the bank account to which the amount has been credited and the date of each such credit.” It continued, “The above details will be furnished forthwith in respect of Electoral Bonds received by a political party till date.”

The interim order may be read here:

Why did the SC reject the extension plea by SBI

Harish Salve, appearing for the State Bank of India, requested that the extension be granted by the court till June 30 to comply with its February 15 order, as it is a complex and laborious exercise to compile and match the information stored in two different silos (for donors and recipients respectively). He explained that the SOP made sure that there was no name of the purchaser in core banking system and the bond number. Questioning the stance taken by SBI, the Chief Justice observed that the court had not asked for the matching exercise and so to seek time saying that a matching exercise is to be done is not warranted, we have not directed you to do that, Live Law reported. When Salve responded that the co-relation exercise is suggested in a particular passage, Justice Gavai riposted that don’t go by what is suggested, go by what is stated. Justice Sanjeev Khanna also questioned the delay, and said, “For what 26 days, something must have happened.”

When the CJI observed that it will direct the registry to open the sealed covers right away and will ask ECI and SBI to divulge whatever is with them, the SBI counsel seemed taken aback, and asked the court not to hurry, saying, “We don’t want to create any havoc by making any mistake.” Responding back, Justice Khanna assured the counsel and said that “There is no question of any mistake. You have the KYC. You are the number 1 bank in the country. We expect you to handle it.” The CJI also exclaimed over the fact that assistant general manager of SBI had filed an affidavit seeking modification of the judgment of a Constitution Bench of the Court.

While Salve had assured that SBI can provide details about the bonds in 3 weeks if no matching exercise had to be undertaken, the bench rejecting the proposed timeline ordered SBI to provide a full disclosure of the details by March 12, 2024 to ECI, which in turn will compile the information and upload it on its website by March 15, latest by 5 PM.

Strictly warning the SBI to comply with its order the court observed, “The SBI shall file an affidavit of its Chairman and Managing Director on compliance with the directions issued above. While we are not inclined to exercise the contempt jurisdiction at this time, we place SBI on notice that this Court may be inclined to proceed against it for wilful disobedience if SBI does not comply with the directions by the timelines indicated in this order.”

Now it is to be seen in what format SBI discloses the details to ECI and how accessible will it be for a voter to make an informed voting decision. There still remains some lack of clarity whether information will personally identify donors with parties or not, but whatever will be the outcome, the court has sent a strong message to the State and the public that anonymous political funding has no place in democracy and voters right to information cannot be supressed under any guise.

SC order may be read here.

(The author is part of the CJP’s Legal Research Team)

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Reading out parts of the 232-page judgement, adjudged historic even though it was delivered over six years after the Electoral Bonds Scheme had been challenged in 2017, the CJI DY Chandrachud stated in open court

“Crucial aspect of expansion of right to information is that it is not confined to state affairs but also includes information necessary for participatory democracy. Infringement to the right to information is not justified by the purpose of curbing black money.” (Para 22; Para 65 Part F, Page 55 of the Concurrent Judgement of CJI Chandrachud, Justices BR Gavai, Pardiwala and Manoj Mishra).

Now that India’s largest public sector bank has, on March 5, 2024, a day before it had to ensure compliance with the SC Order of February 15 has pleaded for over 110 days to deliver, the lead petitioner, and the ADR has filed a contempt petition against the SBI. The Supreme Court on March 5, 2024 dismissed the SBI’s application for extension and has directed them to disclose the details by the close of business hours March 12, 2024.“While we are not inclined to exercise the contempt jurisdiction at this time, we place SBI on notice that this Court may be inclined to proceed against it for wilful disobedience if SBI does not comply with the directions by the timelines indicated in this order.”

The majority concurring judgement delivers its conclusions and directions at Page 149 Part H

“219. In view of our discussion above, the following directions are issued:

1. The issuing bank shall herewith stop the issuance of Electoral Bonds;
2. SBI shall submit details of the Electoral Bonds purchased since the interim order of this Court dated 12 April 2019 till date to the ECI. The details shall include the date of purchase of each Electoral Bond, the name of the purchaser of the bond and the denomination of the Electoral Bond purchased;
3. SBI shall submit the details of political parties which have received contributions through Electoral Bonds since the interim order of this Court dated 12 April 2019 till date to the ECI. SBI must disclose details of each Electoral Bond encashed by political parties which shall include the date of encashment and the denomination of the Electoral Bond;
4. SBI shall submit the above information to the ECI within three weeks from the date of this judgment, that is, by 6 March 2024;
5. The ECI shall publish the information shared by the SBI on its official website within one week of the receipt of the information, that is, by 13 March 2024; and
6. Electoral Bonds which are within the validity period of fifteen days but that which have not been encashed by the political party yet shall be returned by the political party or the purchaser depending on who is in possession of the bond to the issuing bank.

The issuing bank, upon the PART H 152 return of the valid bond, shall refund the amount to the purchaser’s account. (Para 219)”

Justice Sanjiv Khanna judgement is a separate judgement running into 74 pages and while concurring with the majority view on the unconstitutionality of the Schemes on several crucial counts, is even more specific and direct in its directions. At pages 213-218 of the judgement, Justice Sanjiv Khanna elaborates these aspects thoroughly.

He then goes further.

In examining one accept that was argued but not pressed by the lead petitioner, Association for Democratic Reforms (ADR), Justice Khanna outlines the coercive elements at the heart of the scheme that require further examination and study. This includes the argument that there should be a cap on the quantum of donations and further, that the law should stipulate that the funds thus collected through electoral bonds should be utilised for political purposes alone given that the income of the political parties is exempt from income tax

“74. In consonance with the above reasoning and on application of the doctrine of proportionality, proviso to Section 29C (1) of the Representation of the People Act 1951, Section 182(3) of the Companies Act 2013 (as amended by the Finance Act 2017), Section 13A(b) of the Income Tax Act 1961 (as amended by the Finance Act 2017), are held to be unconstitutional. Similarly, Section 31(3) of the RBI Act 1934, along with the Explanation enacted by the Finance Act 2017, has to be struck down as unconstitutional, as it permits issuance of Bonds payable to a bearer on demand by such person. (Para 74) 

“75. The petitioners have not argued that corporate donations should be prohibited. However, it was argued by some of the petitioners that coercive threats are used to extract money from businesses as contributions virtually as protection money. Major opposition parties, which may come to power, are given smaller amounts to keep them happy. It was also submitted that there should be a cap on the quantum of donations and the law should stipulate funds to be utilised for political purposes given that the income of the political parties is exempt from income tax. Lastly, suggestions were made that corporate funds should be accumulated and the corpus equitably distributed amongst national and regional parties. I have not in-depth examined these aspects to make a pronouncement. However, the issues raised do require examination and study. (Para 75)”    

Justice Khanna further elaborates on the interim order of the Supreme Court in this matter, delivered on March 26, 2021.

“76. By an interim order dated 26.03.2021, this Court in the context of contributions made by companies through Bonds had prima facie observed that the voter would be able to secure information about the funding by matching the information of aggregate sum contributed by the company as required to be disclosed under Section 182(3) of the Companies Act, as amended by the Finance Act 2017, with the information disclosed by the political party. Dr. D.Y. Chandrachud, Hon’ble the Chief Justice, rightly observes in his judgment that this exercise would not reveal the particulars of donations, including the name of the donor. (Para 76) 

“77. By the order dated 02.11.2023, this Court had asked for ECI’s compliance with the interim order of this Court dated 12.04.2019. Relevant portion whereof is reproduced below:

“In the above perspective, according to us, the just and proper interim direction would be to require all the political parties who have received donations through Electoral Bonds to submit to the Election Commission of India in sealed cover, detailed particulars of the donors as against the each Bond; the amount of each such bond and the full particulars of the credit received against each bond, namely, the particulars of the bank account to which the amount has been credited and the date of each such credit.” (Para 77)

“The intent of the order dated 12.04.2019 is that the ECI will continue to maintain full particulars of the donors against each Bond; the amount of each such Bond and the full particulars of the credit received against each Bond, that is, the particulars of the bank account to which the amount has been credited and the date of each such credit. This is clear from paragraph 14 of the order dated 12.04.2019 which had directed that the details mentioned in paragraph 13 of the order dated 12.04.2019 will be furnished forthwith in respect of the Bonds received by a political party till the date of passing of the order. (Para 77)

“78. In view of the findings recorded above, I would direct the ECI to disclose the full particular details of the donor and the amount donated to the particular political party through Bonds. I would restrict this direction to any donations made on or after the interim order dated 12.04.2019. The donors/purchasers being unknown and not parties, albeit the principle of lis pendens applies, and it is too obvious that the donors/purchasers would be aware of the present litigation. Hence, they cannot claim surprise. (Para 78)

“79. I, therefore, respectfully agree and also conclude that:

• the Scheme is unconstitutional and is accordingly struck down;
• proviso to Section 29C(1) of the Representation of the People Act, Section 182(3) of the Companies Act, 2013, and Section 13A(b) of the Income Tax Act, 1961, as amended by the Finance Act, 2017, are unconstitutional, and are struck down;
• deletion of proviso to Section 182(1) to the Companies Act of 2013, thereby permitting unlimited contributions to political parties is unconstitutional, and is struck down;
• sub-section (3) to Section 31 of the RBI Act, 1934 and the Explanation thereto introduced by the Finance Act, 2017 are unconstitutional, and are struck down;
• the ECI will ascertain the details from the political parties and the State Bank of India, which has issued the Bonds, and the bankers of the political parties and thereupon disclose the details and names of the donor/purchaser of the Bonds and the amounts donated to the political party. The said exercise would be completed as per the timelines fixed by the Hon’ble the Chief Justice;
• Henceforth, as the Scheme has been declared unconstitutional, the issuance of fresh Bonds is prohibited;
• In case the Bonds issued (within the validity period) are with the donor/purchaser, the donor/purchaser may return them to the authorised bank for refund of the amount. In case the Bonds (within the validity period) are with the donee/political party, the donee/political party will return the Bonds to the issuing bank, which will then refund the amount to the donor/purchaser. On failure, the amount will be credited to the Prime Ministers Relief Fund. (Para 79)

Brief Background

The electoral bond scheme was first introduced in 2017 through the Finance Act, 2017, with the sole purpose of funding political parties while maintaining anonymity of donors and purchasers of the bonds. The apparent aim of the scheme was to curb black money by reducing cash money in the election funding and “to cleanse the system of political funding in the country.”[1]

Electoral bond is similar to a promissory note that is issued to the purchaser of the bond in various denominations (1,000, 10,000, 1,00,000, 10,00,000 and 1,00,00,000) by the selected branches of the State Bank of India, the only authorised bank to issue electoral bonds. Thereafter, the purchased bond has to be encashed by the eligible political party through a designated bank account with the authorised bank. The identity of the purchaser of the bond will remain privy to the authorised bank, and needs to be kept confidential and anonymous. It is argued by the government that donor privacy is required to protect the donor from political witch hunt for supporting a political party or a cause.

Prior to the introduction of the scheme, the Union Government also amended various provisions of the laws to remove the cap on political funding by the companies, and to do away with the requirements of disclosing particular details of the funding provided and received by the companies and political parties, respectively. The Finance Act, 2017, introduced as a money bill, amended the Representation of People Act, 1951 (RoPA), the Companies Act, 2013, the Reserve Bank of India Act, 1934, and the Income Tax Act, 1961. None of these amendments were thoroughly discussed or deliberated upon in Parliament nor the opinions of citizens sought. In essence the scheme was steamrolled through the Legislature.

How the Finance Act was amended

The amendment by the Finance Act, 2017, omitted the first proviso to Section 182(1) of the Companies Act, which, before the amendment, restricted a company’s total contribution to a political party to 7.5% of its average net profit calculated on the basis of the last three (consecutive) financial years. In addition, it amended Section 182(3) of the same Act to do away with the requirement to disclose the details about the particular amount and name of the party that the company contributed to from its profit and loss account. After the amendment, only the total contribution donated to political parties needs to be disclosed without providing particular details or name of the parties. Similarly, amending Section 29C of the Representation of People Act (RoPA), it exempted the political parties from disclosing the particular details of the donations received through electoral bond.

How the RBI Act was amended

Making changes to the RBI Act, Parliament unilaterally –without deliberation– amended Section 31 of the said Act, to allow the Central Government to authorise any scheduled bank to issue electoral bond. Earlier, only the RBI or the Central Government as authorized by the RBI Act were allowed to draw, accept, make, or issue any bill of exchange or promissory note. Lastly, it changed Section 13 of the Income Tax Act to exempt political parties from keeping and maintaining a record of (voluntary) contribution and the name and address of the person who has made such contribution, if the said contribution was received through electoral bond.

Scheme and amendment to Laws challenged

The Electoral Bonds Scheme was immediately challenged as unconstitutional on the grounds that it promotes unlimited corporate funding of the elections, increasing money power and corruption in the elections, and violating the right to information of the voters by ensuring anonymity of significant political funders and donors.

The lead petition challenging the Scheme was first filed on September 4, 2017 by Association for Democratic Reforms and Common Cause. Though interim orders were passed in 2019 and 2021, the final judgement took over six years in coming and was finally delivered on February 15, 2024. The Judgement struck down the scheme and the amendments brought in through the Finance Act, 2017, as unconstitutional.

Who has benefitted most from the electoral bond scheme?

According to the RTI data analysed by Association for Democratic Reforms, one of the petitioners in the case that challenged the validity of the scheme, 28,030 electoral bonds worth Rs. 16,518 crores were sold from March 2018 to January 2024[2]. Indian Express reported that since the beginning of the scheme in 2017 till the financial year 2023 more than half of the funds collected through electoral bonds have gone to the ruling Bharatiya Janata Party (BJP), which received bonds worth Rs. 6565 crores while the Indian National Congress came a distant second with Rs. 1123 crores[3]. TMC, BJD, and DMK, received bonds worth Rs. 1093 crores, 774 crores, and 617 crores, respectively. Smaller parties received substantially lesser share in the scheme, with the bottom five parties receiving less than Rs. 100 crores each during the same duration.

Challenge to the electoral bond scheme

Though the petition was filed as early as 2017 by ADR and Common Cause, the list of petitioners increased with Communist Party of India (Marxist), Jaya Thakur and Spandan Biswal also challenging the scheme. The Supreme Court clubbed the petitions and started hearing the case in a substantial manner only in 2023.

On October 16, 2023, the three judge bench of the Supreme Court consisting of Chief Justice of India, Justice J B Pardiwala, and Justice Manoj Misra maintained that, “In view of the importance of the issue which is raised and having due regard to the provisions of Article 145(3) of the Constitution, we are of the considered view that the batch of petitions be listed before a bench of at least five-Judges.”[4]

The Constitution bench comprising of Chief Justice of India, J B Pardiwala, Manoj Misra, B R Gavai, and Sanjiv Khanna finally heard the matter in which the scheme was found to be unconstitutional.

Grounds behind Scheme being struck down

Initially the petition challenged the introduction of Finance Bill 2017 as a money bill, through which the electoral bond scheme first came into existence, alleging that the nature of Bill revealed that it encompassed areas beyond financial matters. The SC did not go into the question of the passage of the Finance Bill as a money bill in this judgement, and decided the matter on the merits of the case concerning the scheme per se.

When the Union raised the objection that the court cannot look into the legality of Electoral Bond Scheme as it is covered under the ambit of economic policy, the Chief Justice rejected the argument, saying, “The Union of India has itself classified the amendments as an “electoral reform”. Thus, the submission of the Union of India that the amendments deal with economic policy cannot be accepted.” (Paras 41-42, Part D, Page 41)

Close nexus between money and power

Using the law and society approach the judgement notes that money creates entry-barriers to politics by limiting the candidates and political parties, especially parties representing the cause of marginalised communities, who can participate in the electoral fray. Though not having a directing bearing on the case, the bench also pointed out the dichotomy present in the existing legal regime as enunciated in Section 77 of the Representation of People’s Act said,

“Part E. The close association of politics and money

46. The law does not bar electoral financing by the public. Both corporates and individuals are permitted to contribute to political parties. The legal regime has not prescribed a cap on the financial contributions which can be received by a political party or a candidate contesting elections. However, Section 77 of the RPA read with Rule 90 of the Conduct of Election Rules 196161 prescribes a cap on the total expenditure which can be incurred by a candidate or their agent in connection with Parliamentary and Assembly elections between the date on which they are nominated and the date of the declaration of the result. The maximum limit for the expenditure in a Parliamentary constituency is between Rupees seventy five lakhs to ninety five lakhs depending on the size of the State and the Union Territory.62 The maximum limit of election expenses in an Assembly constituency varies between rupees twenty eight lakhs and forty lakhs depending on the size of the State.63 However, the law does not prescribe any limits for the expenditure by a political party.

Section 77 stipulates that the expenditure incurred by “leaders of a political party” on account of travel for propagating the programme of the political party shall not be deemed to be election expenditure. Thus, there is an underlying dicohotomy in the legal regime.

The law does not regulate contributions to candidates. It only regulates contributions to political parties. However, expenditure by the candidates and not the political party is regulated. Be that as it may, the underlying understanding of the legal regime regulating electoral finance is that finance is crucial for the sustenance and progression of electoral politics. (Para 46)

47. It is believed that money does not vote but people do. However, studies have revealed the direct and indirect influence of money on electoral politics. The primary way through which money directly influences politics is through its impact on electoral outcomes. (Para 47)

The judgement also observed that

“The ability of a company to influence the electoral process through political contributions is much higher when compared to that of an individual…Contributions made by individuals have a degree of support or affiliation to a political association. However, contributions made by companies are purely business transactions, made with the intent of securing benefits in return.” (Para 212, Page 147)

The Union Government argued that the 7.5% cap that was put on companies’ donation to political parties was removed to prevent corruption and growth of shell entities, as the companies who wanted to donate more would otherwise resort to illegal means.

The bench debunked such claim, and said that the argument is counterproductive, for

“If the ostensible object of the amendment, as contended by the learned Solicitor General, was to discourage the creation of shell companies, there is no justification for removing the cap on contributions which was included for the very same purpose: to deter shell companies from making political contributions”. (Para 207, Page 144)

Right to Informational Privacy of donors vs Right to Information of voters

The most contentious issue that the scheme raised was regarding the right to (informational) privacy of donors vs right to information of voter, both being fundamental rights under the Constitution.

Importantly, the SC revealed another discrepancy in the argument of the Union with regard to the role of privacy in the scheme.

It questioned the stand taken by Solicitor General of India, Tushar Mehta, and observed that the then Finance Minister,

“Mr. Jaitley stated that the main purpose of the Scheme is to curb black money in electoral financing and this purpose could be achieved only if information about political donations is kept confidential. That is, donor privacy is a means to incentivize contributions through the banking channel. However, Mr. Tushar Mehta argued that protecting donor privacy is an end in itself.” (Para 108, Page 80)

The judgement further noted that the scheme only grants de jure and not de facto confidentiality vis-à-vis the political party, it is still open to the political party to coerce persons to contribute.

The CJI led concurrent judgment argued that when the question before the court is to balance between the two rights, it must apply double proportionality standard, that is, to deploy the said standard to “both the rights (as purposes) to determine if the means used are suitable, necessary and proportionate to the fundamental rights.”  (Paras 161,162,163 at Pages 115-116)

Referring to Puttaswamy judgement, the bench noted that

“this Court did not trace the right to privacy only to Article 21. This Court considered privacy as an essential component for the effective fulfillment of the all entrenched rights.”  (Paras 132-134 at Pages 96-98 onwards)

Thus, right to privacy is to be read along with other fundamental rights and not to their exclusion. Furthermore, the bench significantly noticed that

“the right to privacy of political affiliations does not extend to contributions which may be made to influence policies.” (Para 167 at Page 118)

On the right to information of voters, the SC relied on the series of judgments, including Union of India v. Association for Democratic Reforms, PUCL vs Union of India, State of Uttar Pradesh v. Raj Narain, and S P Gupta vs Union of India, to argue that just as the voters have right to information about the credentials and electoral expenditure of the candidates, the same would also apply to political parties, as they are also political units.

The bench held that a voter has a right to information which is essential for them to exercise their freedom to vote. Additionally, the order read that the purpose of curbing black money is not traceable to any of the grounds in Article 19(2). (Para 77 at Pages 62-63)

Ensuring free and fair elections

The 232 page final judgement referred to the basic principles of republican and democratic form of government and free and fair election, citing the precedents of Kesavananda Bharati v. State of Kerala, Indira Nehru Gandhi v. Raj Narain, Kuldip Nayar v. Union of India, and PUCL v. Union of India.

The bench emphasised that the integrity of the election process is pivotal for sustaining the democratic form of government, and

“permitting unlimited corporate contributions (including by shell companies) authorizes unrestrained influence of companies on the electoral process. This is violative of the principle of free and fair elections and political equality captured in the value of ‘one person one vote’”. (Paras 95, 96, 97 at Pages 73-74)

“97. Second, the Constitution ensures that socio-economic inequality does not perpetuate political inequality by mandating reservation of seats for Scheduled Castes and Scheduled Tribes in Parliament118 and State Assemblies. (Para 97)

“98. The Constitution guarantees political equality by focusing on the ‘elector’ and the ‘elected’. These two constitutional precepts foster political equality in the following two ways. First, the Constitution mandates that the value of each vote is equal. This guarantee ensures formal political equality where every person’s vote is accorded equal weightage. Second, the Constitution ensures that members of socially marginalized groups are not excluded from the political process. This guarantee ensures (a) equality in representation; and (b) equality in influence over political decisions. (Para 98)

99. However, political inequality continues to persist in spite of the constitutional guarantees. One of the factors which contributes to the inequality is the difference in the ability of persons to influence political decisions because of economic inequality. In a politically equal society, the citizens must have an equal voice to influence the political process. We have already in the preceding section elucidated the close association of money and politics where we explained the influence of money over electoral outcomes. However, the influence of money over electoral politics is not limited to its impact over electoral outcomes. It also spills over to governmental decisions. It must be recalled here that the legal regime in India does not distinguish between campaign funding and electoral funding. The money which is donated to political parties is not used by the political party only for the purposes of electoral campaign. Party donations are also used, for instance, to build offices for the political party and pay party workers. Similarly, the window for contributions is not open for a limited period only prior to the elections. Money can be contributed to political parties throughout the year and the contributed money can be spent by the political party for reasons other than just election campaigning. It is in light of the nexus between economic inequality and political inequality, and the legal regime in India regulating party financing that the essentiality of the information on political financing for an informed voter must be analyzed. (Para 99)

100. Economic inequality leads to differing levels of political engagement because of the deep association between money and politics. At a primary level, political contributions give a “seat at the table” to the contributor. That is, it enhances access to legislators. This access also translates into influence over policy-making. An economically affluent person has a higher ability to make financial contributions to political parties, and there is a legitimate possibility that financial contribution to a political party would lead to quid pro quo arrangements because of the close nexus between money and politics. Quid pro quo arrangements could be in the form of introducing a policy change, or granting a license to the contributor. The money that is contributed could not only influence electoral outcomes but also policies particularly because contributions are not merely limited to the campaign or pre-campaign period. Financial contributions could be made even after a political party or coalition of parties form Government. The possibility of a quid pro quo arrangement in such situations is even higher. Information about political funding would enable a voter to assess if there is a correlation between policy making and financial contributions. (Para 100)

Manifestly arbitrary nature of the scheme

Employing the test of proportionality and manifest arbitrariness, both the concurring judgements concluded that the scheme and the accompanying amendments failed the test of proportionality and is found to be arbitrary, thus violating Article 14 and 19(1).

They noted that electoral bond scheme is neither the least restrictive means employed to curb black money nor proportionate or connected to the objective being sought to be achieved.

The order highlighted that

“The statutory amendments and the Scheme are manifestly arbitrary because

• large scale corruption and quid pro quo arrangements would go unidentified due to the non-disclosure of information about political funding;
• they enable capture of democracy by wealthy interests; and
• they infringe the principle of ‘one person-one vote’ because a selected few overpower the voice of the masses because of their economic wealth”.

Conclusion

On the basis of these conclusive reasons, the court struck down the electoral bond scheme and the accompanying amendments made to the Representation of People Act, the Income Tax Act, and the Companies Act.

Furthermore, it directed SBI to disclose the details of donors to Election Commission of India (ECI) by March 6, 2024, and ordered ECI to publish the details of the same by March 13, 2024.  Justice Khanna’s sole separate judgement had put the responsibility on the ECI to disclose details of bonds’ funds

The order detailed that the information should include the name of the purchaser of the bond, denomination of the bond purchased, and details about the encashment of each bond by political parties. It also directed un-encashed bonds to be returned back to the bank.

In a late surprise move, the SBI on March 5, a day before the deadline, informed the SC that there is a practical difficulty complying with the March 5 deadline, as the process of verifying the data and determining the identity of the purchaser in a complex process which would require more time.

It has asked SC for an extension till June 30, 2024 to comply with its order, by which time the 2024 Lok Sabha election would be over, thereby depriving the citizens of their fundamental right to informed voting.

The judgement may be read here:

(The author is part of the CJP’s Legal Research Team)

[1] Introduction of the Scheme of Electoral Bond, Department of Economic Affairs, Ministry of Finance, 2 January 2018. https://www.dea.gov.in/sites/default/files/Electoral%20Bonds_Press%20RELEASE_2-1-2018.pdf

[2] https://adrindia.org/sites/default/files/Updated_Data_on_Electoral_Bonds_Part_1.pdf

[3] Damini Nath and Anjishnu Das, “57% vs 10%: BJP vs Congress share in electoral bond funds”, Indian Express, 16 February, 2024. https://indianexpress.com/article/political-pulse/bjp-congress-electoral-bonds-funds-9162973/

[4] Writ Petition (Civil) No.880/2017, Item No. 801. https://main.sci.gov.in/supremecourt/2017/27935/27935_2017_1_801_47700_Order_16-Oct-2023.pdf

Related:

Electoral Bonds: A Democracy’s Trojan horse

Supreme Court unanimously hold Electoral Bond scheme to be unconstitutional, violative of right to information

Is India’s democracy being sold through electoral bonds?

The post On March 5, 18 days after the SC stuck down electoral bond scheme, directing full disclosure of donor details, SBI fails to comply appeared first on SabrangIndia.

Justice Vinay Joshi and Valmiki Menezes of the Nagpur bench of the Bombay HC, overturned the 2017 Trial Court judgment, both on the basis of the merits and procedural lapses. It reiterated its earlier position on procedural safeguards and found the investigating agency violating rules for valid seizure of evidence and also suspected the possibility of tampering of evidence due to poor handling of evidence and apparent fudging of official records.

The court also came out strongly against thought policing of individuals and relying on the judgement in Jyoti Babasaheb Chorge Vs. State of Maharashtra, said that a particular ideology or political philosophy (which may be inferred from seized literature or other material) cannot be treated as a crime in itself. Along with Jyoti Chorge, it also relied on the ratio of Thwaha Fasal and Vernon vs State of Maharashtra to emphasise that mere association with a terrorist organisation (passive membership) is not sufficient to attract the relevant provisions of UAPA unless it is accompanied by intention and support to further the activities of such organisation. After refusing to consider political literature as valid evidence, the court also dismissed the video ‘evidence’.

Long walk to freedom

The Nagpur Bench of Bombay High after considering the matter afresh delivered its judgement on March 5, 2024, acquitting all the accused charged under UAPA.

The speaking order observed that, “In fact since the prosecution has failed to establish the electronic evidence in accordance with law, the said material need not be gone into as an evidence in this case.”[1] Even on the basis of merits the said ‘evidence’ were found be inadequate in the eyes of the court and the bench dismissed it to be considered as legal evidence. Analysing the ‘evidence’ of the prosecution the court noted, “Perusing these and various other literature contained in the hard disk, as claimed to have been seized from Accused No.6, the contents of these documents read and understood by any person, by themselves would not constitute an offence under Sections 13, 18, 20, 38 or 39. The documents relate to the period from the year 2006 to the year 2012, ranging for a period of 1 year to 7 years prior to registering the FIR”.

On Video Evidence (March 2024)

The court was sharply critical of the shoddy investigation of the prosecution and noted, “…these videos do not in any manner portray any acts of “terrorism” contained in the various provisions of the UAPA. In fact, there is no evidence brought forth by the prosecution to connect the persons in these videos with any actual act of terrorism…”[2] It further lambasted the State for invoking the charge of conspiracy and said, “In order to attract the offence of conspiracy, besides vague allegations that they have conspired to wage war against the Government or advocated arms struggle, there is no other material.”[3]

The court concluded that, “In our view, there is total non-compliance of various provisions of UAPA. The sanction accorded to prosecute Accused Nos.1 to 5 is invalid. Taking of cognizance by the Trial Court without valid sanction or no sanction to prosecute accused No.6 G.N. Saibaba goes to the root of the case, which renders the entire proceedings null and void… We hold that the trial held despite violation of mandatory provisions of law itself amounts to failure of justice”[4].

The Maharashtra government has already challenged this decision in the Supreme Court even though the High Court has refused to stay its order, noting that the matter affects personal liberty of the citizens.

This order of the Bombay High Court may be read here:

Criminal Appeal Nos. 136 & 137 of 2017.

The tragic take of Professor GN Saibaba and others: a background

The former Delhi University professor GN Saibaba was first arrested on May 9, 2014 by the Maharashtra police on charges of entering into a criminal conspiracy with senior Naxal commanders Narmadakka and Ramdhar, and was charged with various draconian sections of the Unlawful Activities (Prevention) Act (UAPA) dealing with conspiracy, and membership of ‘a terrorist gang or organisation’. Hem Mishra, the then student of Jawaharlal Nehru University (JNU), was arrested by the police in 2013 in the case of Naxalite involvement and had named Saibaba as an “urban contact” for the banned Maoists.

Convicted by the Sessions Court in Gadchiroli District in this case of Maoist involvement in 2017, Saibaba and others had been sentenced to life imprisonment. Only one of the accused received a lesser sentence. Other accused in the case are Pandu Pora Narote, who died in August 2022, Mahesh Tirki, Hem Keshwdatta Mishra, Prashant Rahi and Vinay Nan Tirki, Live Law reported[5]. Saibaba has been accused by the prosecution of working with Revolutionary Democratic Front (RDF), believed to be a frontal organisation for the banned Communist Party of India (Marxist).

The decade long battle for justice for Saibaba was marked with particular apathy even brutality by the Nagpur jail authorities given the fact that Saibaba is 90% disabled and suffers from several comorbidities. His incarceration was thus marked by consistent failure by jail authorities to provide him adequate health support. Sabrang India had reported repeatedly in 2020, 2021 and 2022 how his exasperated lawyer, Akash Sorde had publicly told the Nagpur jail superintendent that “the staff even refused to accept warm caps, a handkerchief, towel, napkin, T-shirt, a medical hand weight that Saibaba needs for physiotherapy and shampoo. ‘Given the bone chilling cold that whole of Nagpur is facing at the moment, I fail to understand how else do you expect my client to save himself from cold,’”. Reportedly, he is suffering from 19 medical ailments.

The incarceration had caused international outrage with the UN Human Rights Office of the High Commission had issued the statement concerning the inhumane detention of Saibaba, the statement read, “‘Mr. Saibaba has been detained in a high security ‘anda barracks’ in conditions incompatible with his status as a wheelchair user. His 8×10 feet cell has no window and one wall made of iron bars, exposing him to extreme weather, especially in the scorching summer heat,’”.[6] In the meantime, he was also removed from his post of assistant professor from Delhi University’s Ram Lal Anand College in 2021.

The labyrinth of trial: How the process became the punishment

GN Saibaba along with other accused were first convicted in March 2017 by the Sessions Court at Gadchiroli District under Section 13, 18, 20, 38 and 39 of the Unlawful Activities (Prevention) Act, 1967 (UAPA) and Section 120-B (criminal conspiracy) of the Indian Penal Code (IPC). The Session Court judge Suryakant Shinde wrote in his order that “It is proved that accused No.1 Mahesh Tirki, no.2 Pandu Narote and no.4 Prashant Rahi in pursuance to the  criminal conspiracy with accused no.3 Hem Mishra and no.6 Saibaba were found in  possession of naxal literatures, pamphlets, letters, correspondence, audio­video, electronic material which were to be used for inciting the people to create violence to cause public disorder and accused no.1 Mahesh Tirki, no.2 Pandu Narote and no.5 Vijay Tirki were receiving the members of banned terrorist organization CPI (Maoist) and its frontal organization RDF and were taking them safely and secretly to forest area within the Gadchiroli district to meet absconding underground naxals”[7]. All the accused except Vijay Tirke received life imprisonment sentences, Tirke received rigorous imprisonment of 10 years.

In March 2016, when the trial was still ongoing at Gadchiroli Sessions Court, the Supreme Court granted bail to Saibaba on medical grounds and reprimanded the Maharashtra government for opposing his bail plea after his bail application was rejected by the Bombay HC and said that the State has been extremely unfair to the accused to oppose his bail, especially given his medical condition[8]. Due to his deteriorating health conditions, the Bombay High Court had earlier granted him interim bail from June 2015 to December 2015 to receive medical treatment.

These orders may be read here.

Despite these orders by the High Court of Bombay, Saibaba had to consistently suffer due to lack of proper care being provided by the Nagpur Central Jail authority and it became a battle in itself to secure bail when charged under stringent UAPA law. The SC bench led by Justice J S Khehar while hearing Saibaba’s bail plea in February 2016 had directed the Maharashtra government to provide adequate amenities to Saibaba, it ordered the State, “We want you (state) to make him comfortable. Tell us how you will make him comfortable. You cannot have him in solitary confinement,” Indian Express reported.

These Orders may be read here:

Special Leave to Appeal (Crl.) No(s). 249/2016, Item No.44

Responding to Saibaba’s conviction in 2017 under the UAPA case, his lawyer Rebecca John had noted that UAPA turns mere thought into crime, the trial court had held that he was a Maoist, and accused him of idolising the Naxalbari uprising of 1967 and promoting and propagating communist ideology, Scroll reported. John was quoted as saying, “it seemed that the state was ‘trying to enter the mind of a person, into what his ideology is’”. Previously, his bail pleas were rejected by the Bombay HC in 2015, 2016, 2019, and 2020 on the ground that offences were serious in nature, even while he was suffering from various medical conditions.

Small victory with the progressive Bombay HC verdict

For his immediate family and the larger community of advocates and human rights defenders, a sigh of release came on October 14, 2022 when the Nagpur Bench of Bombay High Court acquitted all the accused, including GN Saibaba of the charges under UAPA and set aside the Trail Court judgement for violating due process of law.

The order delivered by Justice Rohit Deo and Anil Pansare pointed out that, “In view of the findings recorded by us, we hold that the proceedings in Sessions Trials 30/2014 and 130/2015 are null and void in the absence of valid sanction under Section 45(1) of the UAPA, and the common judgment impugned is liable to be set aside, which we do order”. Section 45 (1) of UAPA requires prior sanction from the Central or State Government or the officer nominated by the concerned government to begin proceeding under UAPA. In the present case the prosecution had already arrested Saibaba under UAPA and the Trial Court had begun framing the charges of UAPA even before the sanction was granted on April 6, 2015. This not only violates the provision of UAPA, but also go against the rule of law and due process, both part of Article 14 of the Indian Constitution.

The High Court pointed out that in the present case, issue related to both absence of sanction and absence of valid sanction. It directed the attention of the State to show that under UAPA, after the amendment in 2008, it was necessary that an independent authority reviews the evidence against the accused in an independent manner before recommending the sanction. The report prepared by this independent authority should be substantial enough to guide the prosecution to take the further call. This is the second count on which the sanction was found to be invalid, as the perusal of the report prepared by independent authority revealed that the report in no way aided the prosecution in determining whether the charges under UAPA were justified or not. The bench said that the report lacked application of mind and recorded that “sanction is not a ritualistic formality nor is an acrimonious exercise. Sanction is a solemn and sacrosanct act which lifts the bar and empowers the Court to take cognizance of offence. Sanction serves the salutary object of providing safeguard to the accused from unwarranted prosecution and the agony and trauma of trial, and in the context of the stringent provisions of the UAPA, is an integral facet of due process of law”.

The Bombay High court in this order had emphasised the importance of procedure safeguards, especially in the context of UAPA, and said, “…While the war against terror must be waged by the State with unwavering resolve, and every legitimate weapon in the armoury must be deployed in the fight against terror, a civil democratic society can ill afford sacrificing the procedural safeguards legislatively provided, and which is an integral facet of the due process of law, at the alter of perceived peril to national security. The siren song that the end justifies the means, and that the procedural safeguards are subservient to the overwhelming need to ensure that the accused is prosecuted and punished, must be muzzled by the voice of Rule of Law”. The court dismissed the argument of the State that the infirmity in obtaining the sanction was curable, but remarked that “the rule against double jeopardy has no application if the trial is held vitiated due to invalidity or absence of sanction”. The Bombay High Court was careful enough to note that the order passed by this court is purely on basis of the procedural consideration and has no bearing on the merit of the case.

This detailed order of the Nagpur bench of the Bombay High Court may be read here:

Criminal Appeal No. 136 of 2017,

The victory that did not last

The Maharashtra government immediately challenged the Bombay High Court order acquitting the accused the very same day, and in a peculiarly hurried manner approached and succeeded with an urgent hearing in the apex court on the same day. Appearing for the state government, Tushar Mehta, Solicitor General asked the Supreme Court to stay the acquittal order of the High Court.

Though the Supreme Court did not issue a stay order the same day, it nonetheless urgently listed the matter next day (Saturday) on October 15, 2022 before the bench of Justice M R Shah and Bela Trivedi.

The move raised the eyebrows, as Saturdays are non-working days for the Supreme Court, and the urgency shown was clearly to obstruct the liberty of citizens. Solicitor General Tushar Mehta, appearing for the government of Maharashtra, argued that mere procedural lapse or irregularity in obtaining sanction cannot be the ground for granting bail if the accused were already convicted by the Trail Court based on merit and detailed analysis of the evidence on record. He referred to Section 465 of the Code of Criminal Procedure (CrPC) to argue that the High Court could not have reversed or altered a sentence based on any error or irregularity in the sanction obtained to prosecute an accused unless it had considered whether the accused raised an objection regarding this irregularity during the original proceedings, SCC reported.

The Supreme Court, commenting on what it considered were the infirmities in the impugned order and thereafter observed that the Bombay High Court had not gone into the merits of the case, and acquitted the accused merely on the procedural grounds even though the accused (Saibaba) had argued the case on the basis of merits as well. The SC concurred with Mr. Mehta and said that further consideration is needed in this regard considering the provision of Section 465 of CrPC. Secondly, the SC order also suggested that since the Trial Court has already tried the case on the basis of merit and detailed analysis of the evidence (even if it has violated the procedural rules), it is safer to rely its judgement, at least in the interim, given the serious nature of the offences against “the sovereignty and integrity of the country”.

Thereafter, the SC quite unceremoniously suspended the Bombay High Court judgment acquitting the accused, while completely ignoring the violation of procedural safeguards and due process of law. Additionally, the bail plea for Saibaba was rejected alongside.

The SC finally set aside the High Court ruling on April 19, 2023, and asked it to reconsider the matter afresh, without commenting on the merits of the case. This judgement indeed proves that the maxim of “bail and not jail” remains completely upended for people charged under stringent anti-terror laws like UAPA.

This controversial order of the Supreme Court may be read here:

Criminal Appeal Nos. 1184-1185 of 2023,

Acquitted for the second time on March 5, Professor GN Saibaba was released from the Nagpur Central Jail on March 7, by 12 noon.

[1] Prateek Goyal, “Disabled, Unwell but an Enemy of the State”, The Wire, 23 May, 2015. https://thewire.in/politics/disabled-unwell-but-an-enemy-of-the-state

[2] Amisha Shrivastava, “Bombay High Court Acquits GN Saibaba & 5 Others In Alleged Maoist Links Case”, Live Law, 5 March, 2024. https://www.livelaw.in/high-court/bombay-high-court/bombay-high-court-acquits-gn-saibaba-5-others-in-alleged-maoist-links-case-orders-immediate-release-251271?infinitescroll=1

[3] “GN Saibaba’s lawyer claims Nagpur jail officials refused essentials he brought for him”, Scroll, 25 December, 2020. https://scroll.in/latest/982339/gn-saibabas-lawyer-claims-nagpur-jail-officials-refused-essentials-he-brought-for-him

[4] Sonam Saigal, “Five years on, no relief for jailed Delhi University professor Saibaba”, The Hindu, 9 May, 2019. https://www.thehindu.com/news/national/five-years-on-no-relief-for-jailed-delhi-university-professor-saibaba/article27084472.ece

[5] “India must end inhumane detention of human rights defender GN Saibaba: UN expert”, OHCHR, 21 August 2023. https://www.ohchr.org/en/press-releases/2023/08/india-must-end-inhumane-detention-human-rights-defender-gn-saibaba-un-expert

[6] “GN Saibaba removed as assistant professor from Delhi University’s Ram Lal Anand College”, Scroll, 2 April 2021. https://scroll.in/latest/991267/gn-saibaba-removed-as-assistant-professor-from-delhi-universitys-ram-lal-anand-college

[7] S.C.No.13/2014 & 130/2015, https://gadchiroli.dcourts.gov.in/wp-admin/admin-ajax.php?es_ajax_request=1&action=get_order_pdf&input_strings=eyJjaW5vIjoiTUhHQTAxMDAwMTYzMjAxNCIsIm9yZGVyX25vIjoxMCwib3JkZXJfZGF0ZSI6IjIwMTctMDMtMDcifQ=

[8] Special Leave to Appeal (Crl.) No(s). 249/2016, Item No.44, https://main.sci.gov.in/jonew/courtnic/rop/2016/904/rop_570065.pdf

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A detailed look back at this case:

In the month of August 2023, a minor Muslim student was scolded and hurled communal remarks by his school teacher Tripta Tyagi, for allegedly not doing his homework. The teacher also asked other students to slap the minor boy. She could be heard saying, “Go to any Muslim child’s area…” suggesting a pejorative statement. Furthermore, she instructed the fellow students to “hit harder”. The video of the incident went viral on social media and created nationwide outrage.

Following the incident, Tushar Gandhi filed a petition in the Supreme Court to ensure independent investigation in the matter. Subsequently, the teacher was booked under Sections 302 (punishment for voluntarily causing hurt) and 504 (intentional insult with intent to provoke breach of the peace) of the Indian Penal Code, which are non-cognisable offences. Only after a long delay and rap from SC, the FIR was finally filed by the police incorporating the additional charges under Section 295A of IPC, which deals with acts that deliberately and maliciously outrage religious feelings of any class, and Section 75 of Juvenile Justice Act, 2015, which relates to punishment for cruelty to child.

The SC began hearing the petition in month of September 2023, and since then has issued several directions to the State Government with regards to the filing of FIR, invocation of relevant charges based on the evidence, admission of the victim student in the private school of their choice of school under the EWS quota, counselling of the victim and other students, and seeking compliance reports at various stages. The court has rebuked the State more than once for its repeated non-compliance of the court’s orders.

The trajectory of the case so far

CJP and Sabrang India have already tracked the progress of the case till November 2023, this article is a follow up to the same. To read the earlier updates on the case please visit here [1], [2], [3].

Following the order passed by the SC on November 10, 2023, in which it reprimanded the Uttar Pradesh (UP) state government for not conducting the counselling of either the victim nor the other children, it also asked Tata Institute of Social Science (TISS) to “suggest the mode and manner of extending counselling to the victim child and to the other children involved in the incident”^[1] and to “suggest the names of the expert child Counsellors and other experts in the field available in the State who can do counselling under the supervision of TISS”^[2]. Furthermore, the court asked TISS to prepare the report on the assessment made.

Thereafter on December 11, 2023, the court noted that it has carefully perused the report prepared by TISS regarding counselling of students, and ordered the State Government officials to coordinate with TISS experts to chart out the modalities for implementing the recommendations contained in the report. Directing the State to file compliance report, the order notes, “We direct the State to file a report containing the details about the manner in which the State proposes to implement the recommendations in the report of TISS. The State response shall be filed by January 17, 2024.”^[3]

Pertinently, Justice AS Oka, while hearing the case on January 12, observed that, “‘all this happened because the State did not do what it was expected to do. The State should be very concerned about the manner in which this incident happened’”.^[4] To this, the counsel for the State Government protested, saying that the incident took place in a private school.

During the same hearing, advocate Garima Prashad, appearing for the state of Uttar Pradesh, filed an affidavit regarding the implementation of the recommendations contained in the TISS report. When asked by the bench whether the victim child is still studying in the same school, Prashad responded that “We have taken the necessary steps, but my only concern is that a seven-year-old child has to go to school which is 28 kilometres away.” She added that this is also contrary to the Right to Education Act, which mandates that students of classes I to V should reside within a 1-km radius of the school and students belonging to classes VI to VIII within a 3-km radius, India Today reported^[5].

Responding to this, the counsel appearing for the petitioner, Shadan Farasat, noted that the “That’s the only good school available and the father is ready to take the child to school”. He countered the argument of the State, pointing out that “It is the school which was within this radius that caused harm to the child”. The response was in regard to the child being admitted in the private school affiliated to CBSE. Farasat also contended that, the affidavit submitted by the State Government regarding the recommendations contained in the TISS report was “inadequate”.

Following the SC order in November 2023, Basic Siksha Adhikari (BSA) at Muzaffarnagar, Shubham Shukla was quoted as saying, “‘I then visited Shardein School, a well-known educational institution in the city, and got him admitted. The boy was provided a seat there in class II and will restart his schooling from Monday. His uniforms and syllabus have been provided. All the educational expenses will be taken care of by the state.’”, the Times of India reported^[6]

Following these developments, the SC bench comprising Justice AS Oka and Ujjal Bhuyan in their order dated January 12, 2024, said that the counsel appearing for the petitioner, Shadan Farasat, is free to give his suggestions to the State after consulting the parents of the child, so that the recommendations of the report can be implemented, and listed the matter on February 9, 2024^[7].

It was at the hearing of the case on February 9, 2024 that the bench sharply chastened the UP government and expressed its strong disapproval for not complying with its orders. The order reads, “We find from the affidavits filed on record that the State has not undertaken counselling of the other children, who were participants and witnesses in terms of the suggestions of TISS. There was an element of urgency in counselling. We direct the State Government to immediately implement the suggestions in TISS report about the counselling of other children, who were participants and witnesses in the corporal punishment incident. Compliance affidavit shall be filed on or before 28.02.2024.”^[8]

During the hearing, Farasat had brought to the notice of the court the fact that the affidavit submitted by the State did not name the agency appointed to conduct the counselling of the said students^[9]. To this, the counsel for the state of Uttar Pradesh, Garima Prashad, responded that the officials had held discussions with one agency, Childline, and will file a better affidavit showing the steps taken^[10]. The bench then dismally observed that “There has been a complete breach of our directions. None of the kids have been given counselling. This has to be in letter and spirit.” The court also directed the State to comply with its other directions issued in the order dated September 25, 2023 regarding implementation of the provisions of the RTE Act, 2009, and Uttar Pradesh RTE Rules, 2011, and granted one month’s time to report the compliance^[11].

It was following this rebuke that, on March 1, 2024 Uttar Pradesh Government informed the SC that it has implemented the recommendations of TISS report and started counselling workshops for students who were encouraged by their teacher to slap their fellow classmate, as per the Indian Express report^[12]. The workshops will continue till April 24 as per the affidavit filed by the State Education Department. The state government has also been asked to file a status report on the workshops conducted by the end of April. Another issue emerged during the court hearing on March 1, when the counsel for the petitioner raised the issue of travel reimbursement for the victim child being stopped by the State Government.^[13] Though no written order was passed by the court in this regard, it orally asked the State Government to release the pending amount and suggested that some help can be taken from a charitable trust for the same. For other matters relating to the implementation of RTE Act and Rules and relevant court orders, the next hearing is scheduled on April 15.

How the present case violates several provisions of the law

The present incident of hate crime against a minor school student is not only reprehensible for vitiating the classroom environment but also transforms the safe learning spaces of such classrooms, which should ideally teach children the values of fraternity, dignity, religious harmony, and scientific temperament, into factories of hate propaganda, misinformation, and bigotry.

The incident also violates the right of children to a safe educational environment under sub-section (1) of Section 17 of the RTE Act, which completely prohibits subjecting a child to physical punishment or mental harassment. In addition, sub-rule (3) of Rule 5 of UP RTE Rules, 2011, states that local authority shall be responsible for ensuring that no child is subjected to caste, class, religious or gender abuse or discrimination in the school.

The Supreme Court in the earlier hearing in September 2023 had also referred to detailed guidelines for eliminating Corporal Punishment in Schools as laid down by the National Commission for Protection of Child Rights (NCPCR)^[14], a statutory body for ensuring the rights of children. Incidentally, when the video of the incident emerged in public, NCPCR wrote to the police to file an FIR against the teacher and submit a copy of the inquiry report.

While the Constitution of India under Article 21A provides the fundamental right to free and compulsory elementary education to all children between the age of 6-14, and the complementary RTE Act provides the framework to implement the same, the role of (civil) society and most importantly teachers in creating harmonious and hate free environment is prerequisite to secure the most basic of our fundamental rights.

(The author is part of CJP’s Legal Research Team)

[1] Writ Petition (Criminal) No. 406/2023, Item No. 49, https://main.sci.gov.in/supremecourt/2023/35839/35839_2023_9_49_48228_Order_10-Nov-2023.pdf.

[2] Ibid.

[3] Writ Petition (Criminal) No. 406/2023, Item No. 53, https://main.sci.gov.in/supremecourt/2023/35839/35839_2023_8_53_48975_Order_11-Dec-2023.pdf.

[4] Krishnadas Rajagopal, “U.P. Muslim student slapping case | Supreme Court says State failed in its role”, The Hindu, January 12, 2024. https://www.thehindu.com/news/national/muzaffarnagar-slapping-case-sc-directly-criticises-uttar-pradesh-in-case-of-teacher-goading-students-to-slap-muslim-classmate/article67733661.ece.

[5] Kanu Sarda, “Muzaffarnagar slapping case: Top Court says state did not act the way it should have”, India Today, January 12, 2024. https://www.indiatoday.in/law/story/muzaffarnagar-student-slapping-case-supreme-court-says-up-did-not-act-as-it-should-have-2488071-2024-01-12.

[6] Mohd Dilshad, “Boy in UP school slapping row admitted to ‘good’ institute”, The Times of India, November 19, 2023. https://timesofindia.indiatimes.com/city/lucknow/boy-in-up-school-slapping-row-admitted-to-good-institute/articleshow/105320508.cms.

[7] Writ Petition (Criminal) No. 406/2023, Item No. 48, https://main.sci.gov.in/supremecourt/2023/35839/35839_2023_7_48_49426_Order_12-Jan-2024.pdf.

[8] Writ Petition (Criminal) No. 406/2023, Item No. 45, https://main.sci.gov.in/supremecourt/2023/35839/35839_2023_7_45_50289_Order_09-Feb-2024.pdf.

[9] Abraham Thomas, “‘Why weren’t students counselled’: SC rebukes UP in Muzaffarnagar slapping case”, Hindustan Times, February 9, 2024. https://www.hindustantimes.com/cities/lucknow-news/why-weren-t-students-counselled-sc-rebukes-up-in-muzaffarnagar-slapping-case-101707494991430.html.

[10] Ibid.

[11] Writ Petition (Criminal) No. 406/2023, Item No. 45, https://main.sci.gov.in/supremecourt/2023/35839/35839_2023_7_45_50289_Order_09-Feb-2024.pdf

[12] “Slapping by classmates: Counselling workshops being held at Muzaffarnagar school for students, UP tells SC”, Indian Express, March 2, 2024. https://indianexpress.com/article/india/slapping-by-classmates-counselling-workshops-being-held-at-muzaffarnagar-school-for-students-up-tells-sc-9191211/.

[13] Srishti Ojha, “UP student slapping case: Top Court seeks status report from state on counselling”, India Today, March 1, 2024. https://www.indiatoday.in/law/story/up-student-slapping-case-supreme-court-seeks-status-report-on-counselling-workshop-2509180-2024-03-01.

[14] Writ Petition (Criminal) No. 406/2023, Item No. 50, https://main.sci.gov.in/supremecourt/2023/35839/35839_2023_11_50_47191_Order_25-Sep-2023.pdf.

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The post Supreme Court: Directs UP government to comply with directions and implement wholistic reparations appeared first on SabrangIndia.

A five-judge bench has been constituted to hear the petitions on same sex marriage, and in this case, the counter affidavit filed by the union of India on March 12, 2023 sharply opposes the prayers of the petitioners. Several arguments—some based on the “sanctity of the institution of marriage” and “others relying on precedents”—were made by the Union in its affidavit. 

This article discusses the union of India’s counter affidavit and the mask of legislative competence it uses to cover the lack of understanding of rights jurisprudence that has evolved over the past few years. The first part deals with the affidavit itself, while the second part deals with a brief history of how amendments in marriage laws were received in the country. The third part deals with the case of Navtej Singh Johar vs Union of India and its relevance to the present case, which the union of India appears to have wilfully ignored.^[1] 

The decriminalisation of Section 377, Indian Penal Code, 1860 by the Supreme Court in the case of Navtej was only the first of the many progressive steps that are needed for the protection of rights of LGBTQ community. 

The petitions that were filed in the Supreme Court deal with three laws. One is the Hindu Marriage Act, 1955(HMA); Special Marriage Act, 1954(SMA); Foreign Marriage Act, 1969 and the Citizenship Act, 1955. The prayers in the petitions range from pleading that the court gives its interpretation on the notice period and objections to be allowed under the SMA to also urge the provisions of this law to allow and include same sex marriages. A detailed understanding of the provisions under this law is kept for another day. 

I.  What does the Centre’s Counter affidavit say?

The arguments in the controversial affidavit are two pronged. The first is a mix between separation of powers, sanctity of marriage and compelling state interest. Second is the countering of the progressive interpretation of Navtej Singh Johar and Puttuswamy judgements to state that there is no fundamental right to marriage that can be claimed, under Part III of the Constitution. 

Sanctity of Marriage, Legislative Competence & Intent, and Compelling State Interest. 

The affidavit states that religious notions or codified personal laws of the country govern the institution of marriage, and the population only regards a biological man and woman as participants of marriage. According to the affidavit, since this is a question of which social relationships should be recognised (or not)—essentially a matter for the society and people to decide—the legislature should be the one to decide whether same sex marriages should be recognised or not. This is the first line of defence.

The second part is that, if same-sex marriages are recognised, associated laws such as adoption, divorce, domestic violence and penal laws would come into play and these were not enacted keeping this development in mind. The affidavit argues that this would lead to recognition of marriage without any associated laws having the required framework to accommodate this new development. Therefore, the recognition of same-sex marriages, the affidavit argues, be left to the legislature.

The third point of the affidavit is an interesting one. It connects the continuance of the institution of state to the institution of marriage. It states as follows:

“It is submitted statutory recognition of marriage limited to marriage/union/relation as being heterosexual in nature, is the norm throughout history and are foundational to both the existence and continuance of the State.”

The affidavit states that heterosexual nature of marriage is foundational to the state and does not essentially go into any details substantiating the claims of this connection.

 Decriminalisation of Homosexuality is not equal to the right to marriage.

The second prong of the affidavit goes on to negate the existence of a right to marry under Part III of the constitution for the LGBTQ community. The affidavit states that the separate treatment given to heterosexuals is a reasonable classification since it has a rational nexus with the object of ensuring social stability via recognition of marriages and therefore, Article 14 is not violated.

With respect to Article 15, 19 and 21- the affidavit relies on case laws or interprets landmark judgements in the narrowest possible manner to negate the claim of right to marriage. The affidavit argues that the discrimination marker under Article 15 (1) cannot be adjudged for the issue of sexual relations between same sex couples since, even heterosexual, live in couples are not (in law) given the same status as married couples. The presumption of marriage in live-in relationships is rebuttable as held in Badri Prasad vs. Director of Consultation.

On Article 19, the affidavit argues that while Article 19 gives a person the right to form associations, there is no “concomitant right” that such association must necessarily be granted legal recognition by the state. Further it argues that right to a same-sex marriage cannot be claimed under Article 21, since the judgement in Navtej Singh Johar case only extends to the private sphere of individuals and not to a “public institution such as marriage”.

II.  A pattern of opposition to progressive change.

Marriage- The touch-me-not institution

Family and marriage, and in general, the sphere of personal laws have always been relatively hard to amend, from the state’s perspective. Why is there a need to understand the history of how the institution of marriage has undergone changes? It is important to establish a pattern as to how almost all progressive changes with respect to personal laws, have been resisted by a conservative section, in one or the other way.

For example, Divorce is an alien concept to Hindu law, and to date, the family law regime in the country works to preserve the institution of marriage by enabling counselling to the spouses who want to get a divorce. Moreover, a different scholarship also argues that divorce or some sort of separation existed in different cultures in pre-colonial India, and therefore, it cannot be said that Divorce was completely unknown to India until the 20^th century.

Irrespective of this, it is well known that the Hindu Marriage Act, 1955 faced stiff opposition from the conservative section of the country, when it incorporated provisions for Divorce. It is important to note that several women’s organisations were working on incorporating divorce provisions in marriage laws from the 1930s.^[2] The compromises of the Hindu Marriage Act, 1955 are very interesting to note especially because of how radical it was to have provisions for Divorce in a country newly formed with powerful lobbies against these provisions. The act was still pushed, even with poor implementation and little to no change in women’s status in the immediate aftermath of passage of the act. Some members of the Rajya Sabha did point out the limitations of the Hindu Marriage Bill in empowering women to the fullest extent but supported it for being a progressive legislation nevertheless. The CPI member from Madras- Pravathi Krishnan said the following, while expressing her opinion on the bill:^[3]

While we, as a party, support this Bill, we must make it absolutely clear that we do not feel that it is going to solve the problem finally. We welcome it because we know that it is a very essential measure in our country; we welcome it because, insofar as it goes, this piece-meal measure guarantees and bestows certain benefits, particularly on women. On the one hand we find that it restricts polygamy and bigamy which have been the bane of the women of our country for innumerable years, and. On the other hand, it creates the right of divorce. Although we do not either advocate or accept that people will queue up outside divorce courts, at the same time we feel that in any civilised country it is necessary that such a right should exist for those few people who find it impossible to live together as husband and wife. In supporting this right, we support it from the angle that it is an essential right of the individual to be able to live a life of happiness and a life free from all worry; we also maintain that in such cases where reconciliation is absolutely impossible, to safeguard the interests of the children, to prevent children being born and brought up in an atmosphere of un-happiness, an atmosphere of petty strife, an atmosphere of constant friction between father and mother, it is very necessary that this right should be bestowed and should be guaranteed to our people.

This view by Parvathi Krishnan was a minority one, with most of the conservatives and a good section of other parliamentarians not liking the provisions for divorce finding place in the bill.

Even though Divorce is still frowned upon by society, it is an important part of the family law regime, giving the right of separation for the spouses. Another example is the Supreme Court’s ruling that instant triple talaq is unconstitutional where an old custom which was being used to violate rights of people, within their marriage, was declared unconstitutional in the case of Shayara Bano vs Union Of  India And Ors. ^[4]

If we go a little further into history, when the Age of Consent Act, 1891 was enacted, there was widespread agitation against it. The British passed the Age of Consent Act, 1891 which mandated that a girl child must be at least 12 years old for them to get married, and it applied to all religions. The act was passed because of a campaign by a Parsi Social Reformer- Behramji Malabari from Bombay. Justice Ranade and some other reformists did support this development but influential leaders like Bal Gangadhar Tilak decried that the act was being passed without listening to people.^[5] Much earlier, when Widow Remarriage was being campaigned, anger of conservatives was inescapable. One criticism against the pre-colonial changes in personal laws is that those were British attempts to break the family system. However, the British tried to not interfere into the complex family system of India, as much as possible since it would be counter productive to its economic interests. However, the campaigns of Indian Social Reformers, whom we hail today as heroes, was a main driving factor in having the British enact whichever legislations they did in the sphere of family law.

These examples show a pattern where any change to the family system, of any religion has attracted some or the other opposition. Moreover, even though the Hindu law or in general in the Indian Culture, marriage is seen as a lifelong commitment, without any end to it, and even beyond lives —the laws have allowed divorce, recognising and realising the change the institution has to undergo to suit the sensibilities of the population. This means that the notion of marriage being only and only a holy union and nothing else is not entirely correct. And this also shows that changes in the institution of marriage are not some threats to the state as the state is showing it to be, to claim the defence of compelling state interest.

The institution of marriage should be viewed as a social institution, rather than a religious one, whether it be Islamic, Hindu or otherwise. If marriage is viewed as an institution with social characteristics, along with hints of religion, then it is only natural that the social characteristics of the institution change over time.
 

III.  Missing by Miles – Narrow understanding of Navtej Singh Johar

A. The Judgement

The Supreme Court judgement in Navtej Singh Johar is also based on the court’s ruling in Justice KS Puttuswamy in which right to privacy was recognised as a fundamental right.

There are two relevant discussions from the judgement, for the topic related to same sex marriages. One is the discussion on Constitutional Morality-Progressive Realisation of Rights, and second is the emphasis on Dignity, throughout the judgement.

1. Constitutional Morality- Progressive Realisation of Rights

Constitutional Morality-according to the judgement is different from the societal or majoritarian morality. This means that the values and goals imbibed in the constitution have a separate path within which they are to be realised- whether it be pluralism, equality or justice. The morality such path requires and emits, is Constitutional Morality. The court stated as follows, talking about Constitutional Morality:

…. Rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism.

This means that the morality within which law has to operate or within which the citizens have to conduct themselves is not societal or majoritarian morality but constitutional morality. Progressive Realisation of Rights means that the rights provided in the constitutional scheme should evolve to suit ever changing values within society and to that extent, the Constitution is and should be a living document.       

Essentially, the Supreme Court held that the contours of constitutional morality should be drawn with the help of a progressive realisation of rights.

2. Dignity

One of the most recurring and highly emphasised concepts in the judgement, in all opinions, is the concept of Dignity and how it is inalienable to the rights of individuals. The court stated that the changing nature of the Constitution means that it recognises the dignity of individuals and the fostering in all spheres including socially. The court stated as follows:

Dignity is an inseparable facet of every individual that invites reciprocative respect from others to every aspect of an individual which he/she perceives as an essential attribute of his/her individuality, be it an orientation or an optional expression of choice.

The court stated as follows on how the law should be, with respect to the constitutional ethos and values:

The law provides legitimacy for social institutions. In a democratic framework governed by the rule of law, the law must be consistent with the constitutional values of liberty, dignity and autonomy.

B.  Affidavit’s inconsistencies vis-à-vis Navtej Singh Johar

The affidavit took the stance of restricting the rich jurisprudence of Navtej Singh’s case to just decriminalisation of Section 377. The affidavit stated as follows:

After the decision in Navtej Singh Johar (supra) the only change is that persons of the same sex can engage in consensual sexual intercourse without being held criminally liable under Section 377 of the Indian Penal Code. This, and no more than this, is what has been held in that case.

The judgement read the right to privacy, expression of sexual orientation into Article 21 and 19, and as a result, found the restriction of the homosexuality unconstitutional. Now, when sexual orientation and expression of it forms part of the fundamental right— the ways in which such sexual orientation manifests itself also should have legitimacy. This means that people who are expressing their love for each other, in the form of a commitment to live with each other, should be allowed to do so, only because their sexual orientation is different. And no amount of discrimination shall be practiced by the state against those who are expressing their sexual orientation and choice.

Discrimination based on Article 15.

Article 15 of the constitution states as follows:

5. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
 

The affidavit states that there is no discrimination based on sex whereas it has already been established by the Supreme Court in the case of NALSA vs Union of India that discrimination based on gender identity is also discrimination on the basis of Article 15. This also has been reiterated as the correct view by Justice D.Y. Chandrachud (Now Chief Justice) in the case of Navtej Singh Johar case.^[6] 

The affidavit states that the current status quo of not recognising same sex marriage is not violative of Article 15. It tries to substantiate this argument by trying to equate same sex couples with heterosexual couples in a live-in relationship and therefore, the basis for different treatment is not sex.   

The affidavit fails to recognise the fact that there is a possibility that heterosexual live-in has the possibility to be recognised as a marriage without there being a traditional marriage in some cases. There is no such possibility for same sex companionship or relationships and there exists the discrimination against LGBTQ people.

A large part of the union of India’s affidavit rests itself on narrow interpretation and selective quoting of very progressive judgements. However, one leg of the argument of the union that states that associated legislations are not well equipped to deal with same sex  marriages is of some significance. It is yet to be seen if the Supreme Court will go on to recognise the right and let the government legislate to incorporate the right. 

^[1]AIR 2018 SC 4321

^[2] Sinha, C., 2012. Debating patriarchy: The Hindu code bill controversy in India (1941–1956), pp. 211.

^[3] Parvathi Krishnan, Rajya Sabha Debate, 7^th December 1954, Available at https://rsdebate.nic.in/handle/123456789/583713?viewItem=browse 

^[4] (2017) 9 SCC 1

^[5] Kosambi, M., 1991. Girl-brides and socio-legal change: age of consent bill (1891) controversy. Economic and Political Weekly, pp.1857-1868.

^[6] AIR 2014 SC 1863

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The post Right to Same Sex Marriages is not a right that can be claimed: Union to SC appeared first on SabrangIndia.

First published on: 29 Nov 2022

Image: https://bit.ly/3iuqlT1

The election commission and the recently appointed Election Commissioner Arun Goel have been in the news due to the hearings before a five judge constitution bench of the Supreme Court. The apex court is hearing the petitions seeking established, transparent procedure for appointing members to the ECI. In the course of deliberations, with the Centre arguing that there “was no trigger point” warranting such judicial scrutiny, the Court questioned the undue haste in the appointment of Arun Goel as the Election Commissioner [EC] while the matter was being adjudicated. The post had been lying vacant since May 2022.

The matter had been referred to the Constitutional Bench after a Division Bench of the Apex Court had held that ‘a close look and interpretation of the provisions of Article 324 of the Constitution of India’, which states superintendence, direction and control of elections to be vested in the Election Commission, may be required, reported LiveLaw.

Given these developments, it is important to understand the significance of the Election Commission, and its independent role in the conduct of free and fair elections.

The process of appointment of Election Commissioner(s) post-Independence, has its own tale to tell. The election commission had always been a one member body until 1989. In 1989, the Rajiv Gandhi government appointed election commissioners, as provided in Article 324(1). This was again changed and the EC was made a body with just the CEC by the VP Singh government. However, the PV Narasimha Rao government brought in an ordinance establishing the multi member nature of the commission, which was later converted into an act. A case too was filed in the Supreme Court over these developments.

In this article, the first part deals with the functions and powers of the Election Commission which have been enumerated within the Constitution and other statutes. The second part deals with different cases (jurisprudence) that hold importance in the context of the role and constitution of Election Commission. The third part examines the level and extent of independence the election commission has. To put things in perspective, the appointment of members of ECI is governed by the Constitution (amendment as mentioned above, in 1991). The Election Commission (Conditions of Service of Election Commissioners And Transaction of Business) Act, 1991 prescribes the salary, term and pension matters. A plain reading of Article 324 makes it clear that the process of appointment of the EC members has been left to the law to be made by the Parliament; a lacuna that still persists in the absence of such a law. Even the present constitutional bench pointed out that it’s been 72 years and no law has been put in place.

Election Commission in the Indian Constitution

Articles 324 to 329 of the Constitution deal with the Elections. While Article 324 deals with the commission, its functions and its powers, Article 329 bars the interference of courts in election matters except when brought to them in the form of election petitions.

Article 324 (1) – Establishes the authority of the Election Commission over superintendence, direction and control of the preparation of the electoral rolls, and the conduct of all elections to parliament and the state legislatures, and to the posts of the President and Vice-President.

Article 324 (2) – States that there shall be a Chief Election Commissioner, appointed by the president subject to the law made by the Parliament. It also includes the provision for appointment of Election Commissioners, if the president deems fit, subject to the law made by the parliament.

Article 324 (3) – In case of appointment of Election Commissioner, states that the Chief Election Commissioner shall act as chairman of the commission.

Article 324 (4) – Empowers the president to appoint regional election commissioners.

Article 324 (5) – Subject to the laws of the parliament, the president may make rules for service and tenure of the regional election commissioners and Election Commissioners. For the Chief Election Commissioner, however, the process of removal is the same as the process of impeachment of the judge. The process to impeach a judge starts with either 100 Lok Sabha or 50 Rajya Sabha members giving a notice of motion to the speaker and if the speaker accepts such motion, an inquiry committee has to be constituted with a Supreme Court Judge, a Chief Justice of a High Court and a distinguished jurist who will frame charges and investigate. The report is presented to Parliament and only if each house passes the motion to impeach the judge with majority and 2/3rd of the majority of the members present and voting, the motion will be passed. After both the houses pass such motions, the president will have to pass an order removing the judge. Apart from this special status to the Chief Election Commissioner, Article 324 (5) also states that the Election commissioners and the Regional Election Commissioners, shall not be removed without the recommendations of the Chief Election Commissioners.

Article 324 (6) – states that the president or the governor of a state, shall provide the election commission with necessary staff, when requested, to discharge the functions as enshrined in Article 324 (1).

Statutes

The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991
Section 4 of the Act states that the tenure of the Chief Election Commissioner or the election commissioner is 6 years or until he reaches the age of 65 years, whichever is earlier.

The Process

In the recent hearings over the appointment of the Chief Election Commissioner, the Attorney General submitted to the Supreme Court that the CEC is appointed from the lists of ECs on the basis of seniority. A name is picked by the Prime Minister and it is sent to the President along with a note of recommendation, he submitted to the court.

Judicial Pronouncements on the EC

1. SS Dhannoa vs. Union of India.

The Rajiv Gandhi government, via a notification, fixed the number of election commissioners 2, in the year 1989. By another notification, SS Dhannoa and another person were appointed as Election Commissioners. However, the V.P. Singh government issued notifications rescinding the earlier two notifications by the Rajiv Gandhi government. Consequently, the two posts of  Election Commissioners were abolished and the appointment of  SS Dhannoa and the other Election Commissioner came  to  an end.

SS Dhannoa challenged the notifications by the VP Singh government on the grounds that the Election  Commission being  an  independent body, the abolition of the  posts  of Election Commissioners and their consequent removal tampered with the independence of the Election Commission directly or indirectly; in view of the service rules made  by the President  the Election Commissioners were entitled to continue in office for full tenure of five years or until they attained the age of 65 years whichever was earlier; the notification  abolishing  the  two posts  and  removing the petitioner  and the other Election Commissioner were issued mala fide under the advice of the Chief Election Commissioner; his removal affected him  materially.

The court however stated that the post of election commissioner can be created and abolished as the president may deem fit. The court noted the difference in treatment of both the Election Commissioner on the one side and the Chief Election Commissioner on the other side, as provided in the constitution. The court stated that while the conditions of service and tenure of office of all are to be such as the President may, by rule determine, a protection is given to the Chief Election Commissioner in that his conditions of  service shall not be varied to his disadvantage after his appointment, and he  shall  not be removed from his office  except  in like manner and  on the like grounds as a judge of the Supreme Court. These protections are not available either to the Election Commissioners or to the Regional Commissioners. The court stated that  the conditions of Election Commissioner and the Regional Conditions can be varied to their disadvantage.

2. T.N.Seshan vs. Union of India

A five-judge constitution bench in this case, heard the petitions challenging the validity of the The Chief Election Commissioner And Other Election Commissioners (Conditions Of Service) Act, 1991 on the grounds that it equates the status of CEC and EC by introducing the concept in which whenever a conflict arises as to a decision, the majority will prevail rather than CEC’s decision. The judgement stated that just because the CEC’s conditions of service are different from that of Election Commissioners, it cannot be concluded that CEC is of a higher status than the other Election Commissioners.

The TN Seshan case, therefore confirmed the basics of the power structures with the Election Commission

Independence of the Election Commission

Before the issue of independence itself is examined, it is important to understand and affirm the need for an independent election commission. This does not need complex and layered explanations. Elections are one of the many strong pillars on which democracies stand. If there is any discrepancy in the conduct or result of the elections, there will be cracks in a democracy which will hamper rule of law and public order. This means, the conduct of elections shall be free and fair and for that, the institution which conducts the elections should be free from any influence from the political parties.

Now, how can an institution be truly independent? There are different facets to an institution. Financial, Administrative and others. As far as money is concerned, the Union budget provides for the money required to run the Election commission i.e. EVMs, salaries for the staff, allowances etc. Since the union budget is presented in the parliament, it can be understood that no interference of the executive is present there.

Now, to the facet of administration. The powers of the Election Commission are written in the constitution but the Constitution does not detail out the process in which the persons’ appointment to the posts of CEC or EC. Therefore, the government follows the process of seniority + appointments. That is the Centre will appoint Election Commissioners and the senior most of them usually becomes the Chief Election Commissioner. The Centre, here, means the President on the recommendation of the Prime Minister.

Even prima facie, this process has tenets of executive influence in the appointment of the Election Commissioner and the Chief Election Commissioner. Effectively, if the executive wanted, it can control the Election Commission by placing ‘yes’ men in the commission who will dance to its tunes. The process of appointments to the EC and CEC of the commission is where the independence of the Election Commission falls flat.

What are the other ways in which an Election Commissioner can be appointed?

The issue with the current system is the control of the executive and the lack of concurrence or consultation with other political parties. The current petition in the Supreme Court prayed for a collegium-like system that can appoint the Election Commissioner. This could be a way. Or, say  like in Australia, some jurisdictions necessitate consultation with other political parties before appointing an electoral officer, and in some jurisdictions, a consultation with a parliamentary committee is necessary.

In South Korea, after election discrepancies in 1960, a National Election Commission was constituted in which the members were to be appointed by the National Assembly, the President and the Judiciary and the chairman of the commission was to be elected from such members.

Any of these ways or a new ways in which there is ample independence to the appointment may or should be adopted in India.

Conclusion

The idea of independence is not a straight arrow. Independence manifests itself in various forms-behavioural and structural. However, to have the starting step of appointments influenced by the executive brings down the independence of the Election Commission to the ground. It remains to be seen if the Supreme Court will pass any guidelines or recommendations as such for appointments to the Election Commission.

(The author is a legal researcher currently giving his post graduate examinations)

Related:

Appointment of Election Commissioner under SC scrutiny: The story so far

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The Bombay High Court in a recent judgement, in the case of ABC vs. State of Maharashtra has allowed a 33 week pregnant woman to terminate her pregnancy under Section 3(2B) of the Medical Termination of Pregnancy Act, 1971(MTP Act) .^[1] Pregnancy can be terminated within 20-24 weeks of pregnancy provided some conditions are fulfilled. It was ground broken by the Supreme Court some months ago, however that has led to courts taking a more liberated view. The Supreme Court, some months ago, in the case of X vs. NCT of Delhi, has ruled that even unmarried women can get their pregnancy terminated under the 20-24 week timeframe as provided under the MTP Act, 1971. Now, since the Bombay High Court’s judgement is also a new interpretation in terms of allowing the pregnancy of 33 weeks to be terminated, it needs to be understood in greater detail.

Facts of the case

When the petitioner underwent a foetal anomaly scan, into 14 weeks of pregnancy, the result was normal i.e. the foetus was healthy. However, at 29 weeks of pregnancy, another scan revealed that the foetus was suffering from microcephaly and lissencephaly, two diseases that require special care for the infant and also might result in life threatening conditions before the child gets to the age of 10. The Medical Board constituted under the MTP Act, 1971 denied the request for termination of pregnancy in view of the advance gestation period which was way more than the “permitted” 24 weeks. The petitioner stated that she is not in a position to take care of the infant born with such conditions. When the petitioner approached the court, the court asked the board to consider the decision once more and answer two issues – whether infant born with these conditions is likely to require extensive and continuous or live long medical intervention; and whether a medical termination of the pregnancy at this stage poses a risk or danger to the Petitioner either physically and mentally and report the condition to the court.  The report tendered to the court stated that the foetal deformity being correctable at government and major municipal Corporation hospitals free of cost and considering the advanced gestational age the Medical Termination of pregnancy is not recommended even on directions of the High Court.

In November 2022, Citizens for Justice and Peace (cjp.org.in) had published a legal resource with an overview of abortion laws.

This article attempted to explain abortion laws in context their origin, development and current status. It also discussed the Medical Termination of Pregnancy Act, 1971 and its subsequent 2021 amendment; a very specific aspect with respect to the Indian legal system. This article then also explored the November 2022, three judge bench decision of Supreme Court of India in X vs Principal Health Secretary, NCT of Delhi and compared it with Dobbs vs Jackson Women’s Health Organization, a diametrically opposite verdict of the SCOTUS (Supreme Court of the United States).

Legislation

Section 3 of the MTP act, states that any registered medical practitioner will not be guilty under Indian Penal Code, if the termination is carried under certain conditions. The conditions are that if the pregnancy is 20 weeks old, with the opinion of one registered medical practitioner; and if the pregnancy is 24 weeks old, with the opinion of two registered medical practitioners. And there are only two opinions which would matter- one is that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury to her physical or mental health; or that there is a substantial risk that if the child were born, it would suffer from any serious physical or mental abnormality.

Section 3(2B) of the act states as follows:

“The provisions of sub-sections (2) relating to the length of the pregnancy shall not apply to the termination of pregnancy by the medical practitioner where such termination is     necessitated by the diagnosis of any of the substantial foetal abnormalities diagnosed by a Medical Board.”

Arguments

First, the petitioners argued that the court is not bound by the medical board’s recommendation.

Secondly, the petitioners argued that Section 3(2B) does not explicitly talk about late detection of foetal abnormalities and therefore, Court’s writ jurisdiction is invoked. It was argued that the Medical Board is not entitled to a discretionary advisory position under the law on whether a termination can be performed or not. It only had to assess whether there is a substantial foetal abnormality and if medical termination is safe on an assessment of the mother’s mental and physical health.

It was also argued that uncertainties of pregnancy and parturition can sometimes confront a woman very late in her pregnancy with having to make a choice she never anticipated and that no Medical Board can wander outside the remit of the statute that creates it.

Judgement

The judgement borrowed the values to interpret the MTP Act from the judgement given by the Supreme Court in the X vs. NCT case only recently. The court stated as follows, regarding the Medical Board not recommending for termination due to a delay of 7-8 weeks:

“In refusing a medical termination of pregnancy only on the ground of delay, this Court would not only be condemning the foetus to a less than optimal life but would also be condemning the Petitioner-mother to a future that will almost certainly rob her of every positive attribute of parenthood. It would be a denial of her right to dignity, and her reproductive and decisional autonomy. The mother knows today that there is no possibility of having a normal healthy baby at the end of this delivery.”

The court interpreted Section 3(2B) as a section of the law as a ‘directory nature’ with powers accrued to Medical board to suggest and recommend and not as an ‘empowering section’ which gives final authority to the Medical Board to decide on the question of termination. To say that the foetal anomalies are curable, free of cost- the court stated- the medical board did not take into account the extra effort every day and week that the parents would have to put in giving the child such care only to see a chance at life threatening disease possibly be faced when the child is 10 years old.

Hence the court held as follows, with respect to the autonomy of the woman over her body and pregnancy, when the conditions in the law are met. The judgement reads:

“The Petitioner takes an informed decision. It is not an easy one. But that decision is hers, and hers alone to make, once the conditions in the statute are met. The right to choose is the Petitioner’s. It is not the right of the Medical Board. And it is also not the right of the Court to abrogate the Petitioner’s rights once they are found to fall within the contemplation of the law.”

Conclusion

The judgement although gave an expansive meaning with respect to autonomy of the woman in cases of Section 3(2B), it explicitly distances unmarried women from exercising the same autonomy. In fact, the Bombay High Court clearly stated that it is only considering the situation and rights that are available under Section 3 of the MTP Act when it related to the pregnancy of an adult married woman. The reasoning given by the court to arrive at this partial conclusion is that the petitioners did not ask the court to consider the case of unmarried women.
However, there was no clear reasoning as to why this logic of reproductive autonomy within the contours of law will not be applicable to unmarried women.

Despite this judgement being a progressive expansion of judgement of the Supreme Court in X vs. NCT, there is this significant gap yet that remains to be filled.

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Recently, a comment by former CJI S.A. Bobde raised eye-brows. He famously  said “Sanskrit can do exactly what English can do, namely be the link language throughout the length and breadth of the country,” speaking at the Akhil Bhartiya Chhatra Sammellan organised by the Sanskrit Bharti. Apart from the fact that Sanskrit is a dormant and almost unspoken language across the country, there are various problems that make this proposal not worthy of any consideration. Curiously, however, this is not the first time a prominent person has made a comment about a ‘link language’. The debate over a national language – having the potential to be a the link language across the country – has been widely discussed since Independence and even before. The Constituent Assembly discussed the importance of language, national language and other issues to arrive before it arrived at some solution. It is important to revisit the discussions that occurred and the arguments that were made at the time so that references can be made to those early discussions. This would enable a more informed evaluation with a proposal such as the former CJI’s.

Human civilisation without language would have been shallow and slow in terms of its progress. As the depth and varieties of languages grew, even in terms of words and vocabulary to express complex phenomena, it became easier to propagate ideas and discuss them. With varying factors, and speed, diverse sets of languages developed across the world. In India too, different languages such as Sanskrit, Pali (Prakrit), Urdu, Hindi, Tamil, Kannada etc developed at different periods of time. Languages are in many ways, representative capsules of information of the time in which they flourished. A simple indicator is the way how Portuguese trade with India and their control of Bombay has influenced many words that we have today in Hindi such as the word Pineapple- is ananás in Portuguese and ananas in Marathi, Chai- is Cha in Portuguese and Chai in many languages including Hindi, Soap –Sabao in Portuguese, Sabun in Hindi, Sabbu in Telugu.^[1]

However, their similarity of words or vocabulary is not enough to be tool to bind them together as the same language. For every word that develops in a language, there is also grammar, syntax and etymology, a context; and, for every dialect within such language, there is a complex history. The kind of literature that develops in a region is interlinked to how well developed the language is and the socio-economic features of that region. A region that is plush with agriculture and irrigation would likely develop a romantic literature while a region experiencing scarcity and oppression would more likely develop radical/revolutionary literature, thus contributing different sets of words, phrases etc. The Indian Subcontinent witnessed different cultures, kingdoms and sets of customs- and consequently different languages developed (emerged) over centuries. Moreover, there was no unifying imperial power for centuries combined with an unwaveriing strength to have given India a uniform culture, religion and language. Therefore, when such a union of states was being formed in 1947, a debate on language was inevitable for administrative and unification purposes. The discussion over a national language had occurred even before the Constituent Assembly was formed.

The Language Question during the freedom movement

Gandhi supported a national language in India to unify communities and support the independence movement. However, it’s unclear what type of language he meant, as he used terms such as “link” and “common” interchangeably. He aimed to bring people together and achieve independence through nonviolent tactics and promoting a single language.

Gandhi pushed for Hindustani (a spoken mix of Urdu and Hindi), which then resulted in Hindi being chosen as the official language of the Indian National Congress in 1925. This was criticised by former Congress President Annie Besant as ‘provincial’. Gandhi defended his stance, stating that Hindustani, a combination of Hindi and Urdu, was the best option as a national language after attending Congress sessions and speaking with delegates.^[2]

In response to the exclusionary Simon Commission and the notion of the British that Indians cannot govern themselves, the Motilal Nehru Committee was formed after an All Party Conference. The report submitted by the committee, famously known as the Nehru Report, asked for dominion status to India. Additionally, it also had provisions regarding language that Hindustani, either in Devanagari or Persian,          shall be the language of the commonwealth, with provinces having a principal language of their own.^[3]

Constituent Assembly and the Language Question

The debate in the Constituent Assembly can be divided into three groups. One is the group which advocated for Hindi to be the national language. Second is the group that did not want Hindi to be the national language. Third is the group which worked for a compromise between the former two groups. Although there were various other propositions, this was the composition of the assembly on the question of language.

As already stated above, both Gandhi and the Congress were firm on Hindi having a unifying status. One issue that surfaced after India was partitioned, was the unfortunate extrapolation of the ‘religious’ with language: therefore Urdu with the Muslims and Hindi with Hindus, thus communalising the debate around language.

A compromise, famously called the Munshi-Ayyangar formula, was proposed by N.G. Ayyangar, in the form of an amendment, which would give Hindi the official language status, with English accompanying it for the first 15 years after the Constitution came into force. This was met with both support and opposition in the Constituent Assembly.

Naziruddin Ahmad, a Sanskrit scholar stated that Hindi cannot be the national language immediately and therefore, until then, then English should be an accompanying national language for some time. Pandit Lakshmi Kanta Maitra, quoting the example of Israel having Hebrew as their official language, stated that Sanskrit should be the national language while accepting the suggestion that English should continue for 15 years. Algu Ram Shastri, a member from the United Provinces stated Sanskrit is not spoken on a mass scale, and Syama Prasad Mookherjee stated that the question of language should be decided through a consensus. P. Subbarayan proposed that English be added to the list of languages under the Eighth Schedule.

Nehru also spoke about national language with a distinct tilt towards Hindi while rejecting Sanskrit as a potential national language. He invoked Gandhi’s bid for Hindustani as a national language and gave his support for Ayyangar’s amendment. Durgabai Deshmukh, a member elected from Madras, argued for Hindustani as national language as an extension to her efforts in the south to propagate Hindustani and adhering to Gandhi’s call to propagate Hindistani. Shankar Rao Deo, a member from Bombay stated that Hindi was not spoken among all people of the country and therefore, whatever assumptions are there within the assembly that Hindi is spoken by the ‘majority population’, these should be re-considered. He quoted the example of people from Bihar not speaking in Hindi. The difference between Hindustani and Hindi is that the former is a mixture of Hindi and Urdu. Gandhi advocated this so it can not only unite Muslims and Hindus together but find a resonance among all Indians since this was the closest to a mass spoken language.

Purushottam Das Tandon, despite being an admirer of Sanskrit, said that it being the national language would not be a practical solution. He stated“Then, Sir, something was said about the adoption of Sanskrit. I bow to. those who love Sanskrit. I am one of them. I love Sanskrit. I think every Indian born in this country should learn Sanskrit. Sanskrit preserves our ancient heritage for us. But today it seems to me-if it could be adopted I would be happy and I would vote for it–but it seems to me that it is not a practicable proposition that Sanskrit should be adopted as the official language”

It can thus be stated that although there were advocates for Sanskrit, it was clear then that Sanskrit cannot be the national language and the only language that had such potential was Hindi. And finally, the Ayyangar-Munshi formula of Hindi being the official language with English accompanying it for 15 years, was adopted.^[4]

Ambedkar on Sanskrit as National Language

Though it is widely reported that Ambedkar actually supported Sanskrit as national language, but he did not speak for any such adoption in the Constituent Assembly. All we have as evidence is, newspapers reporting on September 11, 1949 that Ambedkar supported the amendment to make Sanskrit the official language. However, two years before, Ambedkar had supported Hindustani in Devanagari Script as the national language, and we do not find a rationale as to why Ambedkar’s stance suddenly changed.^[5]

Conclusion

There was an unopposed understanding during the movement for Independence and thereafter that, the adoption of a national language is/was a necessity to bind the nation together. Partition experience was a grim reality and keeping India united was important. Today, we need to ask whether the same factors hold. India is more united and cohesive today, politically at least, than ever before. The consolidation of all provinces and cultures under one Indian identity has been a success. At this juncture, to somehow push for a new national language with a ‘special identity’ or a single official language with more privileges would be detrimental to the unity that India enjoys now.

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