This article tries to examine what one of the most pivotal international frameworks on climate change has achieved in the last 5 years. United Nations Framework Convention on Climate Change (UNFCCC)f is the parent treaty of the Paris Agreement with 198 parties i.e., a universal membership. It also is the parent treaty of Kyoto protocol-a treaty on reduction in emissions.

The Paris Agreement signed in 2015 is a legally binding international treaty on climate change with the main aim of holding the global average temperature increase to well below 2° C above pre-industrial levels and pursue efforts to limit the temperature increase to 1.5° C above pre-industrial levels. There are Nationally Determined Contributions under the agreement which the countries submit and are reviewed. The Conference of Parties (COP) is the supreme decision-making body of the convention and all state parties i.e., countries are represented here; it meets on a yearly basis.

The COP 29 climate meeting in Baku concluded in November 2024 with a disappointing deal on climate finance. Developed nations agreed to mobilize a “new collective quantified goal” (NCQG) of only $300 billion per year for developing nations by 2035. This was criticized by developing countries as a “paltry sum” since it represents only a three-times increase over their current mandate of $100 billion and falls significantly short of the estimated $1 trillion, or even $1.3 trillion, that developing countries need to effectively address climate change. Some even viewed it as a “betrayal” and a continuation of the trend of developed countries “taking apart the climate system” over the years. The 2022 Adaptation Gap Report had noted that the international adaptation finance flows to developing countries are five to ten times below estimated needs and will need over US $300 Billion per year by 2030.

Outcomes of the Last Five COPs

The last five COPs have each sought to advance the goals of the Paris Agreement, but they have met with varying levels of success:

COP 25, Madrid

COP 25 in Madrid (2019) focused on finalizing the “Katowice Rulebook,” the guidelines for implementing the Paris Agreement. However, countries failed to reach a consensus on critical issues like the rules for international carbon markets (Article 6). Despite the setbacks, COP25 made some progress on other issues. For example, it strengthened the Warsaw International Mechanism for Loss and Damage by establishing the Santiago Network to offer technical assistance to vulnerable developing countries. It also adopted an enhanced gender action plan to promote gender-responsive climate action and climate finance.

COP 26, Glasgow

COP 26 in Glasgow (2021) was considered a pivotal moment for raising climate ambition and finalizing the Paris Rulebook. It achieved several notable outcomes, including the Glasgow Climate Pact, which called for countries to revisit and strengthen their emission reduction targets and accelerate the phase-down of unabated coal power and the phase-out of inefficient fossil fuel subsidies. COP26 also finally completed the Paris Rulebook, including agreement on Article 6. Another key focus was adaptation. The Glasgow Pact called for doubling the amount of finance to support developing countries in adapting to climate impacts. COP26 also saw the launch of several significant initiatives, including the Global Methane Pledge and a pledge by over 100 countries to halt and reverse deforestation by 2030.

COP 27, Sharm El-Sheikh

COP 27 in Sharm El-Sheikh (2022) was dubbed the “implementation COP”. There was some progress on mitigation, adaptation, and finance, but many issues remained unresolved. A major breakthrough was the agreement to establish a fund to address loss and damage caused by climate change in developing countries. This was a long-standing demand from vulnerable nations and was widely seen as a significant step towards climate justice. However, the final agreement lacked strong commitments on phasing out all fossil fuels, including oil and gas. It also included weak language regarding “transitioning away from fossil fuels” that was at odds with the official global stocktake. COP27 also saw developed countries fail to deliver on their $100 billion per year climate finance pledge, which was due to be met by 2020.

COP 28, Dubai

COP 28 in Dubai (2023) was the biggest COP yet and marked the conclusion of the first ‘global stocktake’ of the world’s collective progress towards achieving the goals of the Paris Agreement. The key outcome of COP 28 was an agreement signalling the “beginning of the end” of the fossil fuel era. This agreement called for a transition away from fossil fuels in a just and equitable manner. It also called for tripling renewable energy capacity globally by 2030 and doubling the average annual rate of energy efficiency improvements over the same period. However, much of the language surrounding these commitments remained vague and non-binding. COP28 also made progress on operationalizing the Loss and Damage fund established at COP27. This fund will support developing nations experiencing the worst effects of climate change, like severe flooding and prolonged drought. COP28 also saw unprecedented recognition of the need to link efforts to address climate change with nature conservation. By the time COP 28 ended, the commitments to the Loss and Damage Fund totalled to US$ 661 Million.

COP, Baku

COP 29 in Baku (2024) focused on finance and aimed to set a new climate finance goal to replace the $100 billion goal set in 2009. The meeting ended with developed nations agreeing to mobilize a new NCQG of $300 billion per year for developing nations by 2035. While this trebled the previous goal, it was widely criticized as being inadequate to address the needs of developing countries, especially given that previous goals were not met. It was also criticized for offering “false hope” to vulnerable communities and nations and essentially “abandoning” them.

Unresolved Issues

Several critical issues remain unaddressed or inadequately dealt with during recent COPs. The most prominent of these is the continued insufficiency of climate finance. The financial commitments agreed upon at COP29 fall far short of what developing countries need to mitigate emissions, adapt to climate impacts, and address loss and damage. This funding gap undermines trust and hinders progress, leaving vulnerable communities and nations struggling to cope with the effects of climate change. The lack of a clear roadmap for achieving the new finance goal also raises concerns about accountability and implementation. Another unresolved issue is the ambiguity surrounding the phasing out of fossil fuels. While COP28 saw an agreement to “transition away from fossil fuels”, much of the language surrounding this agreement is vague and non-binding. The lack of a firm commitment to a rapid and complete phase-out of all fossil fuels, including oil and gas, remains a major concern. Finally, adaptation measures have not received the same level of attention and financial support as mitigation efforts, even though developing countries are facing increasingly severe climate impacts. This imbalance needs to be addressed to ensure a more comprehensive and equitable approach to climate action.

Challenges faced by developing countries

Developing countries are disproportionately vulnerable to climate change impacts, even though they have contributed the least to global greenhouse gas emissions. This is largely due to their geographic locations and limited financial and technological resources, which often make it difficult for them to adapt to climate impacts. As a result, developing countries rely heavily on financial support from developed countries to achieve their climate goals. These challenges are further exacerbated by the historical inequity of climate change. Developed countries have historically emitted the vast majority of greenhouse gases, contributing to the current climate crisis. This historical responsibility creates an ethical obligation for developed countries to provide financial and technological support to developing countries.

Balancing the scales and avoiding a Climate Black Swan

A “Climate Black Swan” event refers to a catastrophic and unpredictable climate-related event with severe global consequences. To avoid such an event, the international community must take urgent and ambitious action. This requires going beyond incremental steps and embracing transformative changes in our energy systems, economies, and lifestyles. It is essential to recognize that climate change is a global issue that requires a collective and coordinated response, one that prioritizes equity, justice, and the needs of the most vulnerable.

To address the imbalance between developed and developing countries and to effectively combat climate change, several actions are crucial. First and foremost, developed countries must fulfill their existing climate finance commitments and significantly scale up their financial support to developing countries. This includes providing grants and concessional loans for mitigation, adaptation, and loss and damage. Technology transfer and capacity-building are also essential. Developed countries should facilitate the transfer of clean technologies and provide capacity-building support to developing countries, empowering them to implement their climate plans and transition to sustainable development pathways. To ensure a just and equitable transition, the shift to a low-carbon economy must also consider the needs of workers and communities dependent on fossil fuels. This includes providing retraining opportunities, creating green jobs, and ensuring a fair distribution of the benefits and costs of the transition. Finally, all countries, especially major emitters, must set ambitious emission reduction targets aligned with the 1.5 degrees Celsius goal. This requires a rapid phase-out of all fossil fuels and a swift transition to renewable energy sources.

(The author is part of the legal research team)

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The post From Madrid to Baku: A chronicle of inadequate climate action at UN Conferences appeared first on SabrangIndia.

Election misinformation and AI

Artificial Intelligence is reshaping the world as we know it. From helping in translation in lower courts in India, to analysing and predicting biological pathways for development of vaccines- there is hardly a field that AI has not found its use case in.

The ability of AI to generate real life like images, voice notes, and deep fake videos has been causing problems and especially in a country like India where internet penetration is high, these problems are exacerbated. While fake news and misinformation have been rampant before the advent of AI, they have become bigger problems to deal with, after AI use has become a common phenomenon. Recently, an audio clip of NCP (Sharad Pawar) leader and Baramati MP Supriya Sule and Congress Leader Nana Patole— was released by the Bharatiya Janata Party alleging that they were involved in a financial fraud relating to Bitcoin. These audio clips were termed as ‘likely to be AI’ by experts.

In India, the acceptance of AI and Deepfakes is rather unsurprising. For example, during the 2024 General Elections, the Prime Minister himself tweeted an AI generated meme video of him dancing in a rock concert like set up-and remarked that “Like all of you, I also enjoyed seeing myself dance;” “Such creativity in peak poll season is truly a delight. #PollHumour.” This also served as a counter to the West Bengal Police warning users to not share a similar video featuring the WB Chief Minister Mamata Banerjee.  Fake videos of Hindi cinema actors Ranveer Singh and Amir Khan campaigning for the Indian National Congress were circulated during the General Elections 2024. Few members of the Congress IT Cell were arrested for circulating a doctored video of Home Minister Amit Shah in Telangana. These people were arrested under the normal criminal laws like CrPC and IPC.

Recently, President of Global Affairs at the technology company Meta was reported as saying that the artificial intelligence only had a modest impact on global elections this year vis-à-vis its platforms including Facebook, Instagram etc. However, Meta and its platforms—as big as they are—form only a part of the AI Ecosystem.

Elon Musk—the billionaire who has openly supported Donald Trump for President in the United States—posted a fake voice note(generate by another user) having 2024 Presidential Candidate Kamala Harris’ voice saying things that she actually did not in real life. This video has more than 135 Million views on Elon Musk owned social site-X.

The use of AI during elections, therefore, has brought forward the issue of regulating the deep fakes and other AI generated misinformation.

What are the policies in India on AI?

There is no one comprehensive policy on Artificial Intelligence in India. India only recently got its Data Protection Act in 2023 highlighting the slow pace with which a technology related law to come into place. This was also because the government had to modify its bill according to the report of the Joint Parliamentary Committee, the pandemic etc. The policy documents on AI in India are all guiding documents or strategies by departments. For example, NITI Aayog had released a National Strategy for Artificial intelligence in 2018. Key highlights of the NSAI include India’s vision to position itself as a global “AI Garage” for developing economies by creating scalable AI solutions for common global challenges. It also advocates for a three-pronged approach: piloting AI projects in high-priority sectors, building a robust ecosystem for AI innovation, and engaging stakeholders across public and private sectors. Furthermore, the strategy emphasizes the late-mover advantage, encouraging India to adapt and innovate existing technologies to leapfrog in the global AI landscape.

Other than this, laws like the Information Technology Act of 2000 and the Digital Personal Data Protection Act of 2023 address certain aspects of data protection and misuse, they fall short of comprehensively addressing the challenges posed by rapidly evolving AI technologies.

Does India need a comprehensive law?

Experts have differing views on this. A recent paper in Carnegie India has noted that there is no consensus on the need for a comprehensive legislation on Artificial Intelligence.  Arguments against it include concerns about stifling innovation, the premature nature of such a law, the evolving pace of AI, and the effectiveness of existing laws like the IT Act. However, some advocate for a dedicated AI law to address novel risks, protect fundamental rights, ensure accountability, and align with global standards. Alternative approaches, such as self-regulation, co-regulation, and sector-specific regulations, are what the experts suggest.

While this has been the case for any technology related law, AI has been one key sector in which even the industry leaders are open to regulation provided it does not stifle the innovation. Therefore, the larger interests of people and the need to serve them should prevail over the superficial ‘need to preserve innovation’ which often gets thrown around as an argument against any measure to have the science benefit the masses.

What can be done about Fake News?

Addressing AI-generated fake news is essential for preserving democracy and societal harmony. Key strategies focus on transparency, public awareness, technological interventions, regulation, and collaboration.

Transparency and Accountability

Campaigns and officials must disclose AI use, including algorithms, data, and objectives, to ensure public scrutiny. Independent oversight bodies should monitor AI in elections, enforce ethical practices, and handle violations efficiently.

Public Awareness and Media Literacy

Comprehensive digital literacy campaigns can empower voters to identify AI-generated content. Supporting fact-checking organizations and collaborating with media outlets can counter misinformation and encourage responsible reporting.

Technological Interventions

Developing AI tools to detect and label synthetic content is critical. Widespread use of watermarks and labels for AI-generated media can help distinguish real from fake content, fostering trust in information sources.

Regulatory Frameworks

New or updated laws must address gaps in managing AI-generated fake news. A balanced, innovation-friendly approach is crucial. Ethical AI development guidelines should promote accountability among developers and researchers.

AI Governance Body

A dedicated AI governance body can establish comprehensive guidelines, monitor AI use across sectors, and address emerging challenges. This reduces reliance on entities like MeitY and ensures specialized oversight and proactive regulation. This body should also be independent enough to regulate the government’s usage of AI since government using AI for in data analysis makes it a formidable force when it wants to march against civil rights movements and activists.

Multi-Stakeholder Collaboration

AI companies must adopt self-regulation and ethical practices. Governments, tech firms, researchers, and civil society should collaborate on shared initiatives, leveraging expertise to develop effective, scalable solutions.

Conclusion

AI is here to stay, and its impact on our lives will only grow with time. While its potential for innovation and progress is undeniable, so too are the risks it brings, especially when it comes to misinformation and deep fakes. It is no longer a question of whether we should address these challenges but how quickly and effectively we can do so. Governments need to step up and establish independent, rule-of-law-based mechanisms to regulate AI while fostering innovation. Striking this balance is crucial—not just for technological advancement, but for safeguarding democracy, societal trust, and individual rights in an AI-driven world.

(The author is a legal researcher with the organisation)

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The post Make and fake information, artificial intelligence (AI) and its misuse: is there need for a comprehensive law? appeared first on SabrangIndia.

Before we understand this scheme and its implications, it is important to understand the contextual dynamics in which this scheme is being announced.

The global academic publishing industry had a worldwide sales amounting to more than $19 Billion USD in 2020. The industry is profitable for the large players so much so that the biggest companies in the sector—Elsevier and Springer-Nature had better profit margins than tech giants like Google, IBM etc in the year 2023.  This lucrative business is possible due to the inherent flaws in the system that exploit the contributions of researchers, institutions, and governments while maintaining tight control over the dissemination of knowledge. These flaws include the monopolization of journals, exorbitant subscription fees, and the prevalence of paywalls that restrict access to publicly funded research.

Academic publishers capitalize on the unpaid labour of researchers, who conduct studies, write papers, and even peer-review submissions without compensation. Once accepted, the publishers charge institutions hefty subscription fees to access the very work those institutions helped produce, creating a closed-loop system that disproportionately benefits the publishers at the expense of academic accessibility.

Moreover, the “publish or perish” culture forces researchers to prioritize high-impact journals owned by major publishers, further strengthening their market dominance. This cycle is exacerbated by the high costs of open-access publishing fees, which often shift the financial burden onto researchers or their institutions, making equitable access to knowledge even harder to achieve.

Despite the growing calls for reforms, such as mandating open-access policies and promoting alternative publishing models, these systemic issues persist, driven by entrenched interests and the lack of unified resistance from the academic community. As an alternative, there are two types of access protocols/frameworks that are followed across the word:

2025. Gold Open Access provides unrestricted online access to scholarly research, typically free of charge to readers. It includes articles, books, and other academic outputs available immediately or after an embargo period, often published in open-access journals or repositories. Japan has issued a mandate that all articles resulting from nationally funded research must be made Open Access immediately upon publication as of 2025. The United States also has made a similar mandate.
2026. Green Open Access, a subset of Open Access, refers to the self-archiving of research by authors. Authors deposit their work in institutional or subject-specific repositories, allowing free access, even if the original publication is behind a paywall. Green Access may involve compliance with publisher policies, including embargo periods before the work becomes freely accessible.

Now what does this have to with India and it launching One Nation-One Subscription?

India has largely followed the Green Open Access model but as already stated above, this system is plagued by not only a restriction on accessing the final version of the paper but also the embargo period by the publishers. This is for the people who are publishing out of India. For those who want to see the international journals or access the articles published by journals who have restricted access—they either have to be a part of the institution which has subscribed to those journals, or they would have to be able to afford the exorbitant subscription/article price. This exclusionary system obviously keeps researchers away from accessing knowledge from across the world. Thus, through the ONOS scheme, the government pays for the subscriptions, enabling students, researchers, and faculty from publicly funded institutions to access these journals.

Understanding the current system for accessing journal articles

Before ONOS, Higher Education Institutions (HEIs) in India accessed journals through a fragmented system of different library consortia, each under the administrative control of various ministries. A library consortium is a group of libraries collaborating to fulfil common needs like resource sharing. For instance, the UGC-Infonet Digital Library Consortium, managed by the INFLIBNET Centre (Information and Library Network Centre) under the Ministry of Education, provides access to selected scholarly electronic journals and databases. Besides these consortia, HEIs also subscribe to journals individually. Other than these, the science and astrophysics related FORSA with participation from premier institutes such as Tata Institute of Fundamental Research also exist. This disaggregated approach has resulted in limited access for many institutions and overlapping subscriptions leading to unnecessary expenditures. It was estimated that India’s institutions spend more than Rs.1500 Crore for the subscriptions.

Details of the ONOS scheme

ONOS seeks to address these issues by centralising journal subscriptions for nearly 6,300 government-run HEIs, including universities, colleges, and institutions of national importance. The scheme will provide equitable access to 13,000 scholarly journals under a single platform, which is set to become operational on January 1, 2025. This common platform will host journals published by 30 renowned international publishers, including Elsevier Science Direct, Springer Nature, Wiley Blackwell Publishing, Taylor & Francis, and many others. All participating institutions will only need to register on the platform to access these journals.

INFLIBNET has been designated as the implementing agency for ONOS, responsible for coordinating the national subscription and making central payments to the publishers. The central government has already negotiated a single subscription price for each of the 30 publishers. Notably, if institutions require access to journals beyond the 13,000 provided on the platform, they can still subscribe to them individually.

The ONOS scheme has been allocated a substantial budget of ₹6,000 crore (approximately US$715 million) for three calendar years – 2025, 2026, and 2027. This investment aims to benefit a vast population of 55 lakh to nearly 1.8 crore students, faculty, and researchers across the 6,300 participating institutions. It will especially benefit institutions in Tier 2 and Tier 3 cities that previously struggled to afford expensive journal subscriptions.

Is there a catch?

There is no catch; not immediately. While ONOS has been widely lauded for its potential to democratise knowledge access, there is a concern.

The most prominent concern revolves around the scheme’s focus on a subscription-based model at a time when the global research ecosystem is increasingly shifting towards Open Access (OA) publishing. OA publishing models, particularly gold OA, charge authors an Article Processing Charge (APC) for publication, making the research freely accessible. Critics argue that investing in traditional subscriptions could be a short-sighted approach given the growing popularity of OA. This criticism is especially valid in 2024 when more than 50% of papers published in the last four years worldwide are open access.

Another issue is the lack of clarity on whether the portal will be accessible to only students or also to the general public, including independent researchers. While this can be incorporated as the plan rolls out, it is important for India to use its leverage to make it easier for its own research ecosystem to thrive by striking a deal for lesser APCs.

Conclusion

The scheme’s substantial budget and wide reach provide an opportunity to incorporate OA principles within this deal. The government could explore negotiating with publishers for reduced APCs for Indian researchers or invest in developing institutional repositories to promote green OA, where authors self-archive their work, making it freely accessible. This could preserve the contributions of academic worldwide to make Open Access a reality.

ONOS is undoubtedly a significant step towards democratizing knowledge access in India. While acknowledging the criticisms and potential challenges, it is crucial to recognize the scheme’s potential to transform India’s research landscape. It will have to be clubbed with much needed higher research funding and better infrastructure to realise India’s scientific potential.

(The author is a legal researcher with the organisation)

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The post The ONOS scheme for research: What It offers and how it works appeared first on SabrangIndia.

Context of the judgment: Balancing secularism and minority rights

The case revolved around the balance between the State’s interest in promoting secular education and the rights of religious minorities to establish and administer educational institutions of their choice. The relevant provisions include:

• Articles 14, 15, and 16: Guaranteeing equality before the law and prohibiting discrimination based on religion.
• Articles 25 to 30: Addressing religious freedom and the rights of minorities.
  • Article 28: Prohibiting religious instruction in state-funded institutions.
  • Article 30: Protecting the right of minorities to establish and administer educational institutions.
• Article 21-A: Guaranteeing the right to free and compulsory education for children aged 6 to 14.
• The Right of Children to Free and Compulsory Education Act, 2009 (RTE Act): Implementing Article 21-A but specifically excluding Madarsas.
• The Uttar Pradesh Board of Madarsa Education Act, 2004 (Madarsa Act): Establishing a board to regulate Madarsa education including teacher qualification, building strength etc.

The case also considered the legislative powers of the State and Parliament, specifically:

• Article 246: Distributing legislative powers between the Union and States.
• Entry 25 of List III (Concurrent List): Empowering both Parliament and State legislatures to make laws on education.
• Entry 66 of List I (Union List): Granting Parliament exclusive power to legislate on coordinating and determining standards in higher education.
• The University Grants Commission Act, 1956 (UGC Act): Enacted by Parliament under Entry 66, regulating higher education and conferring degrees.

Facts of the case

The Madarsa Act, enacted in 2004, established the Uttar Pradesh Board of Madarsa Education to regulate Madarsas in the state. This included prescribing curricula, conducting examinations, and setting standards for teachers and infrastructure. The Act was challenged before the Allahabad High Court in several writ petitions. One petitioner, an advocate, argued that the Act violated the principle of secularism by regulating religious instruction. He also challenged Section 1(5) of the RTE Act, which exempts Madarsas from its purview. The essence of these challenges was that if State is funding the Madarasas, then they ought not to have religious instruction; they ought to have a diverse board governing the UP Board of Madarsa Education—which instead has religious leaders—according to the petitioners to the HC. After the High Court declared the whole act to be unconstitutional and asked the state government to accommodate the children studying in Madarsas in state government schools, an appeal was in to the Supreme Court.

Arguments presented in challenge of the Act:

• Argued that the Madarsa Act, by regulating institutions that impart religious instruction, violated secularism, particularly Article 28.
• Contended that the Act deprived Madarsa students of a holistic, secular education and equal opportunities.
• Highlighted the overrepresentation of members focused on religious instruction on the Board.
• Raised concerns about the inadequacy of teacher qualifications under the Act.
• Argued that the Act encroached on Parliament’s exclusive power to regulate higher education under Entry 66 of List I, as it sought to regulate Fazil and Kamil (Higher education) degrees.

In Defence of the Act:

• Argued that the Act was a regulatory measure aimed at improving the quality of education in Madarsas, which included both religious and secular subjects.
• Emphasized the State’s positive obligation to ensure quality education for minorities under Articles 29 and 30.
• Contended that regulating Madarsas fell within the State’s legislative competence under Entry 25 of List III.
• Pointed out that the RTE Act specifically excludes Madarsas, implying no conflict with Article 21-A.

High Court’s judgement and reasoning

The Allahabad High Court declared the entire Madarsa Act unconstitutional, holding that it violated secularism and Articles 14, 21, and 21-A. The Court reasoned that the Act’s object of regulating institutions imparting “religious instruction and teachings” was inherently contrary to secularism. It also found the Act ultra vires Section 22 of the UGC Act, which restricts the power to confer degrees. The Court directed the State to accommodate Madarsa students in regular schools, effectively leading to the closure of Madarsas.

Supreme Court’s reasoning

The Supreme Court overturned the High Court’s judgment, finding the Madarsa Act largely constitutional. The court noted that while the Equality code of Articles 14,15, 16 forms one facet of Secularism, Articles 29 & 30 form the other facet of Secularism. This formed the essence of the judgment. The Court’s reasoning centred on the following points:

• Secularism as a positive concept: The Court emphasized that secularism in the Indian context involves not just the separation of religion and state but also the State’s positive obligation to ensure equal opportunities for all religions. Regulating Madarsa education to improve its quality was viewed as furthering substantive equality for the minority community.
• Distinction between religious instruction and education: The Court differentiated between religious instruction, which focuses on specific tenets and rituals, and religious education, which provides broader knowledge about religions. It held that the Madarsa Act aimed to regulate education in Madarsas, which included both religious and secular subjects.
• Article 30 and State regulation: The Court recognized the right of minorities to establish and administer educational institutions under Article 30 but also acknowledged the State’s interest in maintaining educational standards in these institutions. It held that the Madarsa Act’s regulatory provisions, relating to curriculum, teacher qualifications, and infrastructure, were reasonable measures to ensure quality education without infringing on the minority’s right to administration.
• Legislative competence: The Court affirmed the State legislature’s competence to enact the Madarsa Act under Entry 25 of List III. It rejected the argument that regulating institutions imparting religious instruction fell outside the scope of “education.” However, the Court found those provisions regulating Fazil and Kamil(higher education) degrees unconstitutional, as they conflicted with the UGC Act—which enables regulation of higher education degrees by the UGC— enacted by Parliament under the exclusive power of Entry 66 of List I.
• Severability: The Court applied the doctrine of severability to uphold the majority of the Madarsa Act. It held that the provisions regulating Fazil and Kamil degrees could be severed from the rest of the Act, which remained valid and enforceable.

On basic structure and it being the basis of a challenge

In Anjum Kadari, the Supreme Court clarified that laws cannot be invalidated solely for violating the “basic structure” doctrine, which limits Parliament’s power to amend the Constitution. Laws can only be struck down if they breach specific constitutional provisions or exceed legislative competence.

The Court highlighted that abstract concept like secularism or democracy, while part of the basic structure, are undefined and open to interpretation. Invalidating laws based on such broad principles could undermine legislative authority. It noted that even in cases like Madras Bar Association vs Union of India [(2014) 10 SCC 1 [109], the violation had to link to concrete constitutional provisions.

For example, to challenge a law based on secularism, a petitioner must show how it violates specific provisions like Articles 14, 15, or 25-30. In this case, the Court examined the Madarsa Act under Articles 28 and 30, rejecting the High Court’s view that it inherently violated secularism.

On Right to Education under Article 21A

The Supreme Court in Anjum Kadari addressed the apparent conflict between the Madarsa Act and Article 21A, which guarantees the right to free and compulsory education for children aged 6 to 14. The key point is that the RTE Act, which implements Article 21A, specifically exempts Madarsas from its purview (Section 1(5) of the RTE Act)1. This exemption itself implies that the legislature recognized the potential tension between the universal right to education and the specific rights of minorities under Article 302.

The Supreme Court in Pramati Educational and Cultural Trust vs Union of India [(2014) 8 SCC 1] had previously held that applying the RTE Act to minority institutions, including Madarsas, could undermine their minority character and violate Article 302. Therefore, the Court in Anjum Kadari did not find the Madarsa Act’s regulation of Madarsas to be in conflict with Article 21A, as the RTE Act itself carves out an exception for such institutions.

Despite the parts related to higher education degrees in Madarsas, this judgement forms a positive part of the jurisprudence relating to minority rights in the country.

(Case Note: Anjum Kadari vs. Union of India)

 (The author is a legal researcher with the organisation)

[1] 2024 INSC 831

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The case arose from challenges to Chapter VIIIA of the Maharashtra Housing and Area Development Act of 1976 (MHADA). The key question before the Court was whether the phrase “material resources of the community” in Article 39(b) includes privately owned property. Previous judgments, such as State of Karnataka vs. Ranganatha Reddy (1977) and Sanjeev Coke Manufacturing vs. Bharat Coking Coal Ltd (1982), had interpreted the phrase broadly to encompass private property.[2]

The Court in Property Owners overturned this expansive interpretation. The majority opinion, authored by Chief Justice Chandrachud, held that not all private property could be considered “material resources of the community”. Justice Nagarathna, in a separate concurring opinion with slight difference of opinion, agreed that private property could theoretically fall under Article 39(b) but stressed the need for a context-specific analysis of previous judges’ interpretations. Justice Dhulia, in a dissenting opinion, maintained the view that all private property is a material resource of the community.

Genesis of the Property Owners case

To understand the events that led to the Property Owners Association v. State of Maharashtra case and the nine-judge bench’s ruling on the term “material resources,” let’s examine the historical context and key cases involved.

Laying the groundwork: Article 31C and Kesavananda Bharati

Initially, Article 31C was added to the Indian Constitution to safeguard laws promoting social and economic objectives, even if these laws appeared to infringe upon fundamental rights. This addition aimed to address earlier Supreme Court rulings that had struck down land reform laws and social welfare legislation for violating fundamental rights to property and equality.

Article 31C had two key parts: the first part protected laws implementing Articles 39(b) and (c) from being voided due to conflicts with Articles 14 and 19. The second part, intended to shield such laws from judicial review even if they didn’t effectively implement Articles 39(b) and (c), was invalidated in 1973 by the landmark Kesavananda Bharati v. State of Kerala judgment. The Kesavananda Bharati case was also Mcrucial for establishing the “basic structure doctrine,” which restricts Parliament’s ability to amend the Constitution.[3]

The Minerva Mills Case and its Implications

A subsequent amendment to Article 31C in 1976 sought to expand its protection to any law promoting any Directive Principle, not just Articles 39(b) and (c). However, the 1980 Minerva Mills v. Union of India case invalidated this amendment, leaving the scope of Article 31C’s protection in question.[4]

The Minerva Mills case generated debate about whether the original, pre-amendment version of Article 31C had been revived. This ambiguity regarding the survival of Article 31C and the interpretation of “material resources” in Article 39(b) contributed to the need for the nine-judge bench in Property Owners.

Navigating Conflicting Interpretations: Ranganatha Reddy, Sanjeev Coke, and Mafatlal

The interpretation of Article 39(b), specifically the meaning of “material resources of the community,” became crucial for applying Article 31C. Several cases grappled with this interpretation, leading to conflicting views and fuelling the debate that culminated in the Property Owners case:

1. State of Karnataka & Anr. v. Shri Ranganatha Reddy & Anr. (1977): This case involved the nationalization of contract carriages in Karnataka. The seven-judge bench was split in its reasoning. The majority upheld the law without directly addressing Article 39(b). Justice Krishna Iyer, in a concurring but minority opinion, interpreted “material resources of the community” broadly to include all resources meeting “material needs,” encompassing private property. The majority explicitly disagreed with Iyer’s expansive view.[5]
2. Sanjeev Coke Manufacturing v. Bharat Coking Coke (1982): This case concerned the nationalisation of coking coal mines. The five-judge bench unanimously adopted Justice Krishna Iyer’s interpretation of Article 39(b), even though it had been a minority view in Ranganatha Reddy.[6]
3. Mafatlal Industries v. Union of India (1997): This case focused on tax refunds. A nine-judge bench, in a single-line statement, suggested that “material resources of the community” includes both public and private resources. However, the Property Owners judgment would later classify this statement as obiter dicta, not legally binding.[7]

The Property Owners Case: Resolving the Debate

These cases, especially the disagreements in Ranganatha Reddy and Sanjeev Coke‘s reliance on a minority opinion, led to uncertainty about the scope of Article 39(b) and the state’s authority over private property.

The Property Owners case stemmed from challenges to a section of the Maharashtra Housing and Area Development Act (MHADA), which aimed to acquire certain properties. The case reached a nine-judge bench to address the enduring question of whether “material resources of the community” encompassed privately owned resources.

The nine-judge bench had to reconcile these previous judgments and provide a clear interpretation of Article 39(b).

Arguments in the Property Owners Case

The petitioners argued for a narrow interpretation of “material resources of the community” in Article 39(b). They submitted that the phrase encompasses resources already owned by the state or those where state ownership is constitutionally mandated. They emphasized that Article 39(b) focuses on “distribution,” not acquisition, implying the state can only distribute resources it already possesses.

The respondents argued for a broader interpretation of “material resources of the community”, contending that it includes privately owned resources. They argued that the state can acquire private property for redistribution to achieve social and economic justice, aligning with the constitutional goals outlined in the Preamble and Directive Principles. A narrow reading, they argued, would render Article 31C, which protects laws promoting Directive Principles, redundant.

Decoding Chandrachud’s majority opinion in Property Owners

CJI(as he was then) DY Chandrachud, authoring the majority opinion in Property Owners Association v. State of Maharashtra, tackled the long-standing debate surrounding the interpretation of “material resources of the community” in Article 39(b) of the Indian Constitution. His reasoning navigated the complexities of judicial precedent, constitutional principles, and economic ideology to arrive at an understanding of the state’s power over private property.

CJI (as he was then) Chandrachud’s judgment begins by acknowledging the historical context surrounding Article 31C and the conflicting interpretations of Article 39(b) that emerged from previous Supreme Court judgments. He notes that Article 31C was initially introduced to protect laws promoting social and economic objectives, even if they appeared to infringe on fundamental rights. The amendment to Article 31C, struck down in Minerva Mills v. Union of India, sought to expand its protection to laws furthering any Directive Principle, not just Articles 39(b) and (c). This amendment, according to the Minerva Mills judgment, would have severely undermined the protections afforded to citizens by Articles 14 and 19.

The judgement authored by the Justice Chandrachud directly addresses the judicial discipline concerns surrounding the reliance on Justice Krishna Iyer’s minority opinion in Sanjeev Coke. He points out that while individual judges can hold differing views, the majority opinion in a case is what establishes binding precedent. In Ranganatha Reddy, the majority, according to him, explicitly distanced itself from Justice Krishna Iyer’s view that “material resources” encompasses all private property. Thus, the five-judge bench in Sanjeev Coke erred by adopting this non-binding minority view.

He then turns to the heart of the matter: interpreting the phrase “material resources of the community” in Article 39(b). He rejects the expansive interpretation espoused by Justice Krishna Iyer, which would essentially allow the state to nationalize any private property deemed necessary for the common good. Such an expansive view, Chandrachud argues, would be tantamount to endorsing a particular economic ideology – a rigid, state-controlled model that is inconsistent with India’s mixed economy.

The majority judgement stated that while the Constitution aims for social and economic justice, it does not mandate a specific economic system. It was reasoned that interpreting Article 39(b) to encompass all private property would undermine individual property rights and stifle economic growth. While acknowledging that private property can indeed be a “material resource,” a caveat was added that not all private property automatically qualifies as such. The determination requires a nuanced analysis according to the majority, considering factors like the nature of the property, the impact of the resource on the wellbeing of the community, scarcity of the resource and the consequences of such a resource being concentrated in the hands of private owners, and the specific objectives of the law seeking to regulate it. [Paragraph 222]

To understand the “community” element of such resources, the majority judgement invokes the Public Trust Doctrine, which posits that the state acts as a trustee for resources crucial to public well-being. This doctrine, initially applied to resources like air, sea, waters, and forests, has expanded to include other resources like spectrum, which possess a community or public element. Therefore, the Public Trust Doctrine aids in identifying private resources that could be considered “material resources of the community” under Article 39(b). [Paragraph 224]

On the crux of the matter, the majority says as follows:

“The direct question referred to this bench is whether the phrase ‘material resources of the community’ used in Article 39(b) includes privately owned resources. Theoretically, the answer is yes, the phrase may include privately owned resources. However, this Court is unable to subscribe to the expansive view adopted in the minority judgement authored by Justice Krishna Iyer in Ranganatha Reddy and subsequently relied on by this Court in Sanjeev Coke. Not every resource owned by an individual can be considered a ‘material resource of the community’ merely because it meets the qualifier of ‘material needs.” [Paragraph 229]

Justice BV Nagarathna’s Concurring Opinion

Justice BV Nagarathna, in her concurring opinion in Property Owners Association, agreed that Article 39(b) does not cover all private property, but took issue with the majority’s characterization of past judgments, especially those by Justice Krishna Iyer. She cautioned against labelling Sanjeev Coke judgement as violative of “judicial discipline,” arguing that such pronouncements could imply that judges in those cases were not true to their oath. [Paragraph 5.11]

She stated that the judgement in Sanjeev Coke merely referred to the minority opinion in Ranganath Reddy while independently upholding the challenged law. She emphasized that judgments should be viewed within their historical context. [Paragraph 23]

She argued that the shift in India’s economic policy towards liberalisation does not warrant branding past decisions, influenced by socialist ideologies, as a “disservice to the broad and flexible spirit of the Constitution.” [Paragraph 1.2] This remark, which we can infer could have been made in the majority judgement draft that was circulated among the judges did not feature in the final uploaded copy of the judgement.

Justice Dhulia’s Dissent in Property Owners

Justice Sudhanshu Dhulia penned a lone dissent in the Property Owners Association case, disagreeing with the majority’s conclusion that the phrase “material resources of the community” in Article 39(b) does not encompass all privately owned resources. He argued that excluding private property from the purview of Article 39(b) overlooked the potential benefits of equitable distribution of certain private resources for achieving social and economic justice. He viewed private resources as an integral part of the “material resources” necessary for realising the goals of the Directive Principles, particularly in light of persistent economic disparities in India. He stated that the interpretation by the majority not only limits the hands of legislature to a non-exhaustive list of factors to determine which resources can be considered as material resources and that there is no need for such pre-emptive determination.[8]  Unlike the majority, which placed specific boundaries on when private property could be considered a community resource, Justice Dhulia argued for a broader interpretation, advocating that these resources should always be viewed with an eye towards redistribution for the common good

Justice Dhulia also stated that the majority did not explicitly disagree with Justice Krishna Iyer’s opinion in Ranganath Reddy and therefore, it cannot be said that judicial discipline was broken by the Supreme Court bench in Sanjeev Coke case by relying on the minority reasoning. [Paragraph 14.7] On the criticism of Krishna Iyer Doctrine in the majority judgement, Justice Sudhanshu Dhulia’s opinion stated as follows:

“Before I conclude, I must also record here my strong disapproval on the remarks made on the Krishna Iyer Doctrine as it is called. This criticism is harsh and could have been avoided. The Krishna Iyer Doctrine, or for that matter the O. Chinnappa Reddy Doctrine, is familiar to all who have anything to do with law or life. It is based on strong humanist principles of fairness and equity. It is a doctrine which has illuminated our path in dark times. The long body of their judgment is not just a reflection of their perspicacious intellect but more importantly of their empathy for the people, as human being was at the centre of their judicial philosophy. In the words of Justice Krishna Iyer himself: “The Courts too have a constituency – the nation – and a manifesto – the Constitution”.[9]

Conclusion

While the change that this judgement could effectuate is yet to be seen, the reasoning employed has paved the way for future decisions that could limit state power especially in the realms of taking over property of the individual. However, a larger question still looms large over the institution of Supreme Court—whether there will be same enthusiasm to curb state power in realms of individual freedoms and right to life or not.

(The author is part of the legal research team of the organisation)
______________________________________________________________________

[1] 2024 INSC 835

[2] (1977) 4 SCC 471; (1983) 1 SCC 147

[3] AIR 1973 SC 1461

[4] AIR 1980 SC 1789

[5] 1978 AIR 215,

[6]  1983 AIR 239

[7]  AIRONLINE 1996 SC 1268

[8] Page 5 of Justice Sudhanshu Dhulia’s opinion.

[9] Page 96, Justice Sudhanshu Dhulia’s opinion.

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Sir Syed Ahmed Khan-an educationist from the 19^th century who also was also the founder of the Aligarh movement-founded the Mohammeden Anglo Oriental College (MAO College) in 1877. There is a great deal of literature on how Syed Ahmed Khan was working for development of both Hindus and Muslims while serving as a judge, and how he found the Scientific Society with Hindu personalities to translate scientific works into Urdu and Hindi.[3] The same literature also marks a shift in how he later specifically focussed particularly on upliftment of Muslims through education. In this pursuit, he established a school in 1875 which later became the MAO College.

The MAO College eventually transformed into AMU in 1920 through an Act of the Central Legislature, expanding its academic reach and gaining university status.  The birth of independent India in 1947 brought forth a new era, marked by the adoption of the Constitution in 1950. This landmark document enshrined fundamental rights, including provisions for minority institutions, notably Article 30(1), which guaranteed religious and linguistic minorities the right to establish and administer educational institutions of their choice.  The enactment of the Constitution necessitated aligning existing laws with its principles.  Consequently, the AMU Act underwent amendments in 1951 and 1965. These amendments aimed to reconcile the university’s governance structure with the newly established constitutional provisions, particularly those related to secularism, equality, and the right to education for all citizens.

Changes to AMU Act after Independence

The 1951 Amendment Act was crucial in reshaping AMU’s governance to adhere to the principles of the Constitution, particularly those related to government aid and non-discrimination. The amendment addressed several key aspects, including the composition of the university’s governing body, “the Court,” and provisions for religious instruction. Prior to the amendment, the AMU Act mandated that all members of the Court be Muslims.  This provision was deemed incompatible with the secular and egalitarian ethos of the Indian Constitution, which prohibits discrimination based on religion.  The 1951 amendment removed this requirement, allowing for a more diverse and inclusive composition of the Court, thereby adhering to Article 14, which guarantees equality before the law.

Another significant aspect addressed by the 1951 amendment pertained to religious instruction. The original AMU Act mandated religious instruction for Muslim students, a provision that raised concerns about potential discrimination against students of other faiths. To rectify this and ensure compliance with Article 28(1), which prohibits religious instruction in educational institutions wholly maintained out of State funds, the amendment removed the mandatory religious instruction provision.  This change was crucial in aligning AMU with the principles of the. By removing the requirement for an all-Muslim Court and the mandatory religious instruction provision, the 1951 amendment sought to remove any impediments to AMU receiving government aid while upholding the principles of secularism and equality enshrined in the Constitution.

However, the 1965 Amendment Act, introduced amidst a period of campus unrest, significantly altered the power dynamics within the university, further intensifying debates about its minority character and the autonomy of minority institutions in general. This amendment effectively curtailed the authority of the Court, reducing it to an advisory body. The Executive Council, on the other hand, saw its powers considerably augmented. Additionally, the amendment introduced significant changes to the composition of the Court, shifting from an elected body to a primarily nominated one. These changes, perceived by many as a move towards greater government control over the university, sparked concerns about the erosion of minority institutions’ autonomy and sparked renewed legal challenges. The Supreme Court delivered its judgement on the validity of the amendments in Azeez Basha vs. Union of India.

Azeez Basha v. Union of India (1967) and subsequent developments.

In the 1967 case of Azeez Basha v. Union of India, the Supreme Court examined the question of whether Aligarh Muslim University (AMU) was a minority educational institution under Article 30(1) of the Indian Constitution. The Court ultimately ruled that AMU was not a minority institution, a decision that has been contested ever since.

The petitioners in Azeez Basha had challenged amendments made to the AMU Act in 1951 and 1965, arguing that they violated the Muslim community’s right to administer an educational institution they had established. These amendments, as previously mentioned, changed the university’s governance structure and composition, including measures that reduced the power of the university’s Court, removed a requirement for Court members to be Muslim, and empowered the Executive Council.

The Court upheld the amendments, determining that the AMU was neither established nor administered by the Muslim minority at the time the Constitution came into force. The Court reasoned that because the central legislature enacted the AMU Act in 1920, the university was established by the government, not a religious minority. The Court determined that the words “establish and administer” in Article 30(1) must be read conjunctively, meaning the minority community must have both established and administered the institution to qualify for protection under this article.

Timeline: key developments after Azeez Basha

November 26, 1981: The two-judge bench in Anjuman-e-Rahmaniya vs. District Inspector of Schools expressed doubts about the Azeez Basha judgment and referred the matter to a larger bench for reconsideration.[4] The case involved a different educational institution and was considering whether registration as a society under the Societies Registration Act changed an institution’s status as a minority institution. The judges questioned whether an institution established with any non-minority participation could be considered a minority institution and directed that a larger bench consider the matter. However, this reference was never conclusively addressed.

December 31, 1981: The AMU Act was amended with the intention of overturning the Azeez Basha judgment. This amendment redefined “University” in the AMU Act to mean “the educational institution of their choice established by the Muslims of India, which originated as the Mohammedan Anglo-Oriental College, Aligarh, and which was subsequently incorporated as the Aligarh Muslim University”. The amendment also emphasized the university’s role in promoting the educational and cultural advancement of Muslims. However, the legal validity of this amendment, and whether it could supersede the Supreme Court’s Azeez Basha judgment, became a point of contention in future litigation.

 2002: The Supreme Court, in TMA Pai Foundation v. State of Karnataka stated that the determination of whether a community is a minority is to be made at the state level.[5] The Court in TMA Pai framed a question similar to the one in Anjuman-e-Rahmaniya, but ultimately determined that the question of indicia for treating an educational institution as a minority institution should be decided by a regular bench, not the eleven-judge bench hearing the case. However, this question remained unanswered.

2005: AMU, asserting its claim as a minority institution based on the 1981 amendment, reserved 50% of seats in postgraduate medical courses for Muslim candidates. This decision led to the case of Dr. Naresh Agarwal v. Union of India.[6] The petitioners in this case, citing Azeez Basha, contested the reservation policy and argued that AMU was not a minority institution. The Union and the University countered that the 1981 amendment had nullified Azeez Basha.

2005: The Allahabad High Court, relying on the reasoning in Azeez Basha, struck down AMU’s reservation policy.  The High Court determined that the 1981 amendment did not change the basis of the Azeez Basha decision, and so AMU remained a non-minority institution. The High Court reasoned that the Muslim community had willingly surrendered their right to administer AMU to the government. It also found the 1981 amendment impermissible because the amendment sought to overrule the Azeez Basha judgment without removing its legal basis.

2006: The Union government and AMU appealed the Allahabad High Court’s decision to the Supreme Court.

 February 12, 2019: A three-judge bench of the Supreme Court, recognising that the correctness of Azeez Basha remained unresolved, referred the question of AMU’s minority status to a seven-judge bench. The bench determined that previous references, including the one in Anjuman-e-Rahmaniya, had not provided a definitive answer to this question.  This referral also directed the seven-judge bench to consider the impact of the 2010 amendment to the National Commission for Minority Educational Institutions Act (NCMEI Act) on AMU’s minority status. The 2010 amendment to the NCMEI Act expanded the definition of a minority institution to include universities, a change the three-judge bench felt necessitated further examination.

Arguments

The petitioners primarily argued that the Aligarh Muslim University (AMU) should be recognized as a minority institution based on its historical connection with the Muslim community, and therefore entitled to protection under Article 30(1) of the Indian Constitution. They challenged the long-standing precedent set by Azeez Basha, which had denied AMU minority status. The petitioners contended that the Azeez Basha judgment misinterpreted the scope of Article 30(1) and created a restrictive precedent that limited the ability of minority communities to establish and administer universities. They emphasized that a university could be considered “established” by a minority community even if it was formally incorporated through a legislative act, particularly when the community played a significant role in the institution’s conception, development, and ongoing character. The petitioners highlighted AMU’s historical origins, its contributions to Muslim education and culture, and the university’s strong ongoing connection with the Muslim community as evidence of its minority character.

The respondents argued that AMU’s establishment through the Aligarh Muslim University Act of 1920, enacted by the British Indian government, negated the claim that it was established by the Muslim minority community. They emphasized that the Act granted the government extensive control over the university, including the power to appoint key officials, regulate its functioning, and oversee its finances. This control, they contended, contradicted the autonomy and independence typically associated with a minority institution. The respondents also argued that the Muslim community, in its pursuit of a university, had willingly accepted a certain level of government control in exchange for recognition and support. This acceptance, they argued, amounted to a surrender of the right to establish an independent minority institution. This surrender predated the Indian Constitution, they noted, and therefore could not be reevaluated based on the fundamental rights enshrined in the Constitution. The respondents further argued that AMU’s designation as an “institution of national importance” under Entry 63 of List I of the Seventh Schedule of the Constitution, combined with its integration into the regulatory framework established by the University Grants Commission (UGC) Act of 1956, demonstrated its national character and its alignment with the broader Indian higher education system.

Majority Judgement

Decoupling minority status from statutory incorporation, date of establishment, and administrative composition

The majority judgment authored by Chief Justice D.Y. Chandrachud and joined by Justices Sanjiv Khanna, J.B. Pardiwala, and Manoj Misra sought to clarify the criteria for determining the minority status of educational institutions in India. This 4:3 decision rejected a narrow interpretation of Article 30(1) of the Indian Constitution, which guarantees religious and linguistic minorities the right to establish and administer educational institutions of their choice. The majority opinion articulated a set of principles aimed at ensuring the protection of minority rights in the realm of education.

Firstly, the judgment refuted the long-held notion that statutory incorporation automatically precludes minority status. The court distinguished between “incorporation” and “establishment,” asserting that these concepts are distinct and should not be conflated. Therefore, the mere fact that the Aligarh Muslim University (AMU) was created through an Act of Parliament (the AMU Act of 1920) does not inherently negate its potential minority status. The majority opinion emphasized that the critical inquiry should focus on who established the institution and the driving force behind its creation, the purpose of the creation and the way it was created. It is here the majority judgement makes the distinction. [Paragraph 94]

The majority stated that the indicia for treating an educational institution as a minority education institution constitutes the genesis of the idea or ‘brain’ behind the establishment as gauged from the correspondence, government resolutions.  This inquiry should lead back to a person from the minority community. Additionally, the purpose of the institution can be for the benefit of the minority community rather than being ‘solely for the benefit of the minority community.’ [Paragraph 72]

The implementation of the idea, according to the majority opinion of the Supreme Court, needs to be examined but state aid in the implementation would not adversely affect the minority status of the institution. The administrative structure also should reflect the minority character of the institution. [Paragraphs 133-138]

Secondly, the majority judgment debunked the idea that an institution’s date of establishment is determinative of its minority status. The court clarified that Article 30 does not restrict the right to establish and administer educational institutions to minorities only after the Constitution came into effect. This clarification ensures that the protection afforded to minority educational institutions under Article 30 extends to institutions established before the Constitution’s adoption, acknowledging the historical context of minority education in India.[Paragraph 119]

Thirdly, and perhaps most significantly, the court held that administration by non-minority members does not, in itself, negate an institution’s minority status. Recognizing the evolving nature of educational institutions and their commitment to secular values, the majority acknowledged that a minority institution might not require minority members in its administration to maintain its essential character. The court highlighted that a minority institution might prioritize secular education, making the presence of minority members in administration unnecessary. This principle allows minority institutions to embrace inclusivity and diversity in their administrative structures without jeopardizing their minority status and the associated constitutional protections. The court also recognized that compelling a minority institution to surrender its minority character in exchange for recognition or affiliation would violate Article 30(1).[Paragraph 160]

Minority opinion

Justice Surya Kant’s dissenting opinion disagrees with the majority on two crucial points: how the case came before the court and what criteria should be used to determine the minority status of an institution.

First, Justice Surya Kant strongly criticizes the procedural route the case took. The issue of AMU’s minority status started with a two-judge bench that doubted the correctness of a previous five-judge bench ruling (the Azeez Basha case). This two-judge bench then referred the case directly to a seven-judge bench, bypassing the proper channels. Justice Surya Kant argues this is a fundamental error. He cited established legal principles and the Supreme Court’s own precedent in Central Board of Dawoodi Bohra Community v State of Maharashtra to emphasise that a smaller bench cannot overrule or refer the decisions of a larger bench without going through the Chief Justice of India.[7] This, he argued, undermines judicial order and predictability. [Paragraph 91]

Second, on the substantive issue of how to determine minority status, Justice Surya Kant disagreed with the majority’s view that an institution incorporated by a statute can still be considered a minority institution. He emphasizes that both the “establishment” and “administration” of an institution must reflect its minority character for it to receive protection under Article 30(1). This is a conjunctive reading of those two terms – both conditions must be met. [Paragraph 131]

.Justice Surya Kant, in his dissent, listed factors indicating a loss of minority administrative control over an institution: management unaccountable to the founders, external vetoes in staffing decisions, lack of guaranteed minority representation on governing bodies, and a shift from the institution’s original minority-focused goals. These suggest diminished influence of the minority community in administering the institution.[Paragraph 181]

Justice Dipankar Datta expressed caution against recent judicial trends that diverge from historical precedent and original constitutional interpretations. [Paragraph 133] He emphasised that judges are not infallible and should be guided by the framers’ intentions rather than rewriting history. He argued that the right to establish and administer minority institutions (under Article 30) is contingent upon the community’s intent and control. Regarding Aligarh Muslim University (AMU), he noted its founding circumstances, highlighting that it was publicly funded and controlled by the colonial government, with minimal Muslim community oversight—pointing to a limited claim to minority status in its administration. He was the lone judge withing the minority to go ahead and declare that AMU is not a minority educational institution.

Justice Satish Chandra Sharma opined that for a minority community to claim administrative rights under Article 30, they must have “established” the institution, meaning they must have independently and predominantly created it without substantial outside control. The institution’s purpose should primarily serve the minority’s interests, and they should hold decisive administrative power. The term “establish” refers strictly to the act of creation, and cases should evaluate whether the minority community directly contributed to its foundation and operation, according to him. [Paragraph 266]

Understanding the reasoning

El Clásico between purposive and literal interpretation

The majority took the route of purposive interpretation of the Constitutional provision by examining the purpose of Article 30(1) and how the article underscores the imperative to enable minorities to maintain their distinctive characteristics and fulfil their specific needs. Out of the majority judgement’s discussion, a principle emerges— that the special right under Article 30(1) of the Constitution is that the state must grant the minority institution sufficient autonomy to enable it to protect the essentials of its minority character. [Paragraph 65] Using this, the Court also went on to devise the tests which look at the origins and purpose of the institution in question, to answer whether it is a minority institution or not. The majority judgement also stated that it is inconsequential whether the word ‘establish’ in Article 30(1) actually means ‘to bring into existence’ or ‘to found’ the real determination becomes possible only when the veil of the statute is lifted. [Paragraph 110]

Justice Dipankar Dutta’s minority opinion stresses on the literal phrase in Article 30(1) and states that the framers of the Constitution were aware of the circumstances of the times and yet, they used the word ‘establish’ instead of ‘found’ —a broader word. [Paragraph 134] Later he stated that even if the verb ‘establish’ could be read as ‘to found’ which he found no warrant to so read, the Muslim community’s leaving the administration of AMU to be worked out according to the AMU Act shows the clear lack of intention on part of the community to administer it. [Paragraph 133]

These are classic conflicts in terms of interpretation. While the purposive interpretation looks at the origins of the law and the purpose it sought to achieve, the literal interpretation gives importance to the intent and wisdom of those who framed the law since they understood the circumstances better and yet used the wording. While literal interpretation is used to let the law be a stable instrument for order, purposive interpretation enables law to be instrument in social change.

Justice Satish Chandra Sharma’s minority ppinion and loose threads

An interesting line of reasoning emerges from the minority opinion of Justice Satish Chandra Sharma. First, he states that there was no right under Article 30 in 1920 for it to have been surrendered to the government by the minority community via the enactment of AMU Act. Essentially, he stated that the Constitution bestows the right on minorities and before 1950, the right did not exist. This reasoning recognises constitution as a document that effectuates change-something similar to what  Justice Vivian Bose had said in Virendra Singh vs State of UP in 1955 that “The Constitution  by  reason of the authority derived  from and conferred  by the people of India destroyed all vestiges  of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State in the present case was seeking to  uphold.”  The chance at progressive interpretation however gets lost when the opinion says that since there was no right to establish institutions for minorities, there is no question of relinquishing the right. Additionally, he went on to say that limited minority aspects/elements cannot make an institution a ‘minority institution.’ [Paragraph 204]

Justice Satish Chandra Sharma stated in his minority opinion that the court cannot be swayed by one side of the story or the other. He referred to the competing narratives by both appellants—saying that the university was established by Muslim people for the benefit of Muslim community with the help of state sanction, and by respondents—saying that the establishment of the university was largely a government affair with minority elements. He states as follows in Paragraph 204:

“If in a given case, there may be other factual factors pointing towards the contrary, highlighting that whatever the intention or the will of the minority community might have been at the said time, in exchange or during negotiations, if the resultant institution was effectively rendered an open governmental institution [with limited minority aspects], then Article 30 would be out of the picture.”

We do not get to see in his opinion how or why this conclusion can be drawn from the elaborate discussion he did on the facts leading up to the establishment of the university or why a significant effort by the minority community can be trumped by the mere fact that university gets incorporated by a legislative act.

The majority judgement tackles this line of reasoning by saying that In Article 30(1) by saying that, there is no distinction between universities and colleges regarding minority rights. Both serve the common purpose of educating students, and minorities are entitled to autonomy in administering these institutions to benefit their communities. The term “establish” refers to the act of founding an institution and is distinct from “incorporation.” A person or community could establish a teaching college that later became a university, and the right to establish is not limited by legal incorporation under the Act.

The bench however left the determination of the minority status of AMU itself and directed that a smaller bench would apply the criteria as laid out by the seven-judge bench.

(The author is part of the research team of the organisation)

[1] 2024 INSC 856

[2] 1968 AIR 662

[3] Kidwai, S., 2020. Sir Syed Ahmad Khan: Reason, Religion and Nation. Routledge India.

[4] W.P. (C) 54-57 of 1981

[5] Writ Petition (civil)  317 of 1993

[6] 2005(4)ESC2489

[7] (2005) 2 SCC 673

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This essay argues that moving beyond insurance and pension schemes is essential for holistically improving the lives of agricultural labourers. It is crucial to invest in strategies that empower this workforce through skill development, education, and the creation of diverse employment opportunities, enabling them to transition smoothly into non-agricultural sectors and improve their overall well-being.

Defining agricultural labourers

Agricultural labourers are individuals who work on farms or in agricultural activities for wages, rather than operating their own farms. They do not own the land they cultivate nor the tools they utilise. Agricultural labourers provide the manual labour required for various agricultural tasks. They play a critical role in ensuring food security and supporting the livelihoods of millions in rural areas. In India, they represent a substantial portion of the workforce. The 2020-21 Periodic Labour Force Survey reported that 46.5% of people in India are engaged in agricultural activities.

Agricultural labourers are essential to the agricultural sector because they perform tasks vital for food production. These tasks can include:

• Preparing land for cultivation
• Sowing, planting, and transplanting crops
• Maintaining crops through weeding and irrigation
• Harvesting and threshing crops
• Tending to livestock and poultry

While the ongoing shift towards farm mechanisation aims to enhance productivity, it also poses a challenge to the traditional employment patterns of agricultural labourers. This displacement necessitates exploring alternative employment avenues to ensure their continued well-being.

Farm mechanization, reduced labour demand, and potential risks

Farm mechanisation is causing a decline in the demand for manual labour in India by replacing human workers with machines for various tasks. This shift is driven by the need for greater efficiency and output in the agricultural sector. The increasing production of crops like grains, cereals, and oilseeds requires faster and more effective harvesting procedures.

Powered machines help meet this need, enabling farmers to reduce costs and increase yields. As per a 2022 report by Parliamentary Standing Committee on Agriculture, Animal Husbandry and Food Processing, 47% of agricultural operations in India are now mechanized, highlighting the ongoing transition. Machines are employed in a wide array of agricultural activities, including seed-bed preparation (ploughing, harrowing), sowing and planting (seed drills), inter-culture operations (weeding, fertilizer application), harvesting and threshing (combine harvesters), and irrigation (tube wells, electric and diesel pumps).

The adoption of farm mechanisation offers several benefits, such as cost reduction due to lower labour expenses and faster task completion. Mechanisation also leads to significant savings in seeds and fertilizers, ranging from 15 to 20 percent, at a conservative estimate.[2] It enhances productivity through improved operational speed and precision in tasks like sowing and harvesting. Furthermore, it optimises resource utilization by ensuring the accurate application of seeds, fertilizers, and pesticides, reducing waste and environmental impact. Lastly, it allows for increased cropping intensity and higher yields by enabling farmers to work on larger areas efficiently.

However, this transition to mechanisation poses risks for agricultural labourers who depend on manual work. A study in the West Godavari district of Andhra Pradesh found that a one-unit increase in input costs and machine time led to a decrease of 0.06 and 4.34 units in labour requirements, respectively, demonstrating the direct impact of mechanization on labour demand.[3] As machines take over tasks once done by humans, labourers face potential job displacement, unemployment, and lower wages due to an oversupply of labour in the market. Marginal and small farmers, who constitute a significant proportion of India’s agricultural workforce, may struggle to afford or operate expensive machinery, potentially widening the gap between them and larger, more mechanized farms. The displacement of labourers also necessitates finding alternative employment opportunities and providing skills training to facilitate a smooth transition to non-agricultural sectors.

This shift can lead to an unstable income for agricultural workers, creating financial uncertainty for rural families who depend on these earnings. Establishing alternative employment options beyond agriculture would provide these families with a much-needed safety net, helping them maintain a stable income even as the agricultural landscape changes.

Importance of skill development

To help agricultural workers transition to new job sectors, skill development is key. As traditional agricultural tasks are met with low demands, these workers need training in skills that fit other growing industries, such as manufacturing, construction, or services. Programmes that focus on building these skills would empower agricultural labourers to secure better-paying, sustainable jobs, giving them an opportunity to improve their financial outlook and move beyond agriculture-based income.

The need for steady income sources

A reliable income stream is crucial for the well-being of rural families. When families have a consistent income, they can invest in essentials like education and healthcare, breaking the cycle of poverty and building a brighter future. By fostering employment opportunities outside of agriculture, rural families can reduce their dependence on the land, bringing stability and resilience to rural communities as they adapt to modern agricultural practices.

Schemes-the abundance and the lack

The government has several schemes for agricultural labourers but a good amount of them revolve only around insurance and pension. Insurance is a risk mitigation instrument i.e. it exists to make sure that the person who is insured does not find themselves in worse situation than they are in currently. Pension too supports the current situation rather than helping the person to achieve a better standard of living.

The Indian government has enacted the Unorganised Workers’ Social Security Act, 2008, to provide social security benefits to workers in the unorganized sector, including agricultural labourers. This act mandates the creation of welfare schemes for unorganized workers, addressing life and disability cover, health and maternity benefits, old age protection, and other benefits determined by the Central Government.

Several specific schemes fall under this act:

Aam Admi Bima Yojana (Department of Financial Services)

Rashtriya Swasthya Bima Yojana (Ministry of Health and Family Welfare)

In addition, there are three other schemes by the Central Government that offer coverage to agricultural labourers:

• Atal Pension Yojana
• Pradhan Mantri Jeevan Jyoti Bima Yojana-Life Insurance
• Pradhan Mantri Suraksha Bima Yojana-Accident Insurance

Pradhan Mantri Shram Yogi Maan-dhan Yojana (PM-SYM), launched in 2019, is a pension scheme that provides a monthly pension of Rs. 3000/- to unorganized workers, including landless agricultural labourers, after they reach the age of 60.

Beyond these, other schemes might benefit agricultural labour, but they do not specifically address the loss of employment due to farm mechanisation.

In a reply to a question posed by an MP, which asked about details regarding the shift of people from agriculture to other activities, the government did not provide the details of such shift. Instead of a direct answer, the reply talked about unrelated things and concluded by saying that the Government of India has implemented various initiatives and policies to boost economic growth and employment in the country.
The reply listed initiatives aimed at boosting non-agricultural sectors, including the “Make in India” program, “Start-Up India” initiative, “Pradhan Mantri Mudra Yojana,” and skill development programs. However, it lacked specific details on how these programs incentivize a shift from agriculture.[4]

This reply also throws light on the fact that the government has been working with scarce data which could affect efficient and effective policy making.

The reason why agricultural labourers need extra protection is because they are deprived of all kinds of resources necessary to get a better life. They are restricted from accessing benefits urbanisation due to lack of capital or skill to move to the city. They are restricted from agriculture due to lack of land etc. Therefore, their lack of resources cannot be solved by placing basic safety nets that barely help them when something bad happens.

A holistic plan-based upliftment must be undertaken to ensure that they do not get left out as the process of farm mechanisation begins to pace up. Specific manufacturing hubs that prioritise employment of women, near villages, incentivising the employment of women along with providing standard health and education facilities can be effective. Only by creating conditions that ensure the improvement in living conditions of agricultural labourers, the goal of restricting unemployment and poverty in rural poor and agricultural labourers can be achieved.

(The author is part of the legal research team of the organisation)

[1] Pib.gov.in. (2024). Agrarian Land. [online] Available at: https://pib.gov.in/PressReleasePage.aspx?PRID=1601902 [Accessed 6 Nov. 2024].

‌[2] Guru, P., Borkar, N., Debnath, M., Chatterjee, D. and Panda, B. (n.d.). Rice mechanization in India: Key to enhance productivity and profitability. [online] Available at: https://krishi.icar.gov.in/jspui/bitstream/123456789/31952/1/2.8.pdf.

[3] Gousiya SK and Suseela K, ‘IMPACT of FARM MECHANIZATION on INCOME and EMPLOYMENT and CONSTRAINTS in MECHANISATION of RICE CULTIVATION in WEST GODAVARI DISTRICT’ (2021) 49 The Journal of Research ANGRAU 107 <https://epubs.icar.org.in/index.php/TJRA/article/view/133453?articlesBySimilarityPage=4> accessed 6 November 2024.

[4] LOK SABHA STARRED QUESTION NO.228, 2023 Available at: https://sansad.in/getFile/loksabhaquestions/annex/1714/AS228.pdf?source=pqals

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Facts of the Case:

In 2022, B.K. Polimex India Private Limited (the Petitioner) purchased three drawings by Akbar Padamsee and four by F.N. Souza from auction houses in London. These artworks, depicting nudity in some instances, were imported into India and declared as “nude drawings” on the customs invoices. Upon arrival, Customs officials, under the Airport Special Cargo Commissionerate, threatened to confiscate and possibly destroy the artworks!

Fearful of the potential loss of these valuable pieces, the Petitioner, following advice from FedEx, requested the re-exportation of the artworks. Despite this, the Customs officials seized the seven artworks on April 20, 2023, deeming them “obscene material.”

The Petitioner contested this seizure, submitting certificates from art galleries, expert opinions, and even prints from the National Gallery of Modern Art’s virtual tour to demonstrate that the artworks were not obscene. Despite a personal hearing on June 22, 2023, where the Petitioner further argued its case, the ACC issued an order on July 1, 2024, confiscating the artworks and imposing a fine of Rs. 50,000.

Reasoning of the Assistant Commissioner of Customs:

The ACC based his decision on Notification No.1/1964-Customs dated January 18, 1964, which prohibits importing “obscene” materials. He contended that since the artworks portrayed nudity and, in some cases, “sexual intercourse positions,” they inherently fell under the category of “obscene” and were thus prohibited.

The ACC’s reasoning can be summarized as follows:

• Reliance on personal interpretation: He relied solely on his understanding of obscenity, dismissing expert opinions and the context of the artwork.
• Anything depicting nudity is obscene: He adopted a rigid stance, equating any form of nudity with obscenity.
• Disregard for artistic merit and expertise: He failed to consider the acclaim and recognition these artists had received globally and the artworks’ artistic value.
• Ignoring judicial precedents: He disregarded established legal principles on obscenity, attempting to distinguish relevant Supreme Court judgments on flimsy grounds.

Reasoning of the Bombay High Court:

The Bombay High Court, in its judgment delivered by Justices M.S. Sonak and Jitendra Jain, found the ACC’s order perverse, unreasonable, and unsustainable. They quashed the order and directed the immediate release of the artworks to the Petitioner.

The court’s reasoning was grounded in the following:

• Not every nude painting is obscene: The court stated that nudity in art does not automatically equate to obscenity. A nuanced approach considering artistic merit, context, and community standards is necessary.
• Rejection of the ACC’s “ipse dixit” approach: The court criticised the ACC’s reliance solely on his assertion without substantiating it with evidence or considering expert opinions and legal precedents.
• Contemporary community standards: The court emphasized that the determination of obscenity must consider the evolving social norms and values of the present-day community.
• Artistic merit and expertise: The court acknowledged the global recognition of both artists and considered their expertise a relevant factor. The ACC’s disregard for this aspect was deemed a critical flaw in his judgment.
• Importance of legal precedents: The court upheld the principles laid down in various Supreme Court judgments that provided guidelines for determining obscenity. They highlighted that personal opinions cannot supersede established legal principles.

Cases Cited and Their Application:

The Bombay High Court cited several landmark cases to support its decision:

• Ranjit D. Udheshi vs. State of Maharashtra (1964): This case established that mere depiction of sex and nudity in art does not constitute obscenity. The focus should be on whether the material would corrupt those exposed to it.[2]
• Aveek Sarkar and another Vs. State of West Bengal and others (2014): The court in this case rejected the outdated Hicklin test, which judged obscenity based on isolated passages taken out of context. It emphasized the importance of contemporary community standards in determining obscenity.[3]
• Ajay Goswami vs. Union of India and others (2007): This case established that nudity alone does not constitute obscenity. The court must consider the artistic, literary, or social merit of a work alongside its potentially obscene content.[4]
• Indibily Creative Private Limited and others vs. Government of West Bengal and others (2020): The Supreme Court, in this case, underscored the freedom of expression and criticized authorities acting as self-proclaimed guardians of public morality.[5]
• Kavita Phumbhra Vs. Commissioner of Customs (Port), Calcutta: The Calcutta High Court, in this case, overturned the customs authorities’ confiscation of glass objects depicting an unclothed female form. They criticised the imposition of vague individual moral standards and highlighted the evolving nature of societal norms.[6]

Judgment and the Court’s stand on the core issue:

The Bombay High Court, in its judgment, quashed and set aside the impugned order of the ACC, directing the release of the confiscated artworks to the Petitioner. The court emphasized that customs laws do not empower an ACC to impose his personal views on obscenity and dictate artistic standards. They stressed that legal principles and contemporary community standards, as laid down in judicial precedents, must guide such decisions.

The core issue, whether the artworks were “obscene,” was addressed by the court in light of the evolving understanding of the term and the context of artistic expression. The court maintained that “sex and obscenity are not always synonymous” and that merely depicting nudity does not automatically render an artwork obscene. They held that the ACC’s failure to consider expert opinions, artistic merit, and community standards demonstrated a perverse and unreasonable approach.

Conclusion:

The Bombay High Court’s judgment in B.K. Polimex India (P) Ltd. v. Union of India serves as a crucial reminder that individual biases and moral judgments cannot supersede established legal principles and due process. The court’s emphasis on context, artistic merit, expert opinions, and contemporary community standards provides a robust framework for determining obscenity in the realm of art. This judgment protects artistic freedom and ensures that bureaucratic overreach based on personal preferences does not stifle creative expression.

(The author is part of the legal research team of the organisation)

[1] WRIT PETITION NO. 14437 OF 2024

[2] 1965 AIR 881

[3] (2014) 4 SCC 257

[4] (2007) 1 SCC 143

[5] AIR 2019 SC 1918

[6]  GA No. 2284 of 2009

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The post Art v/s Obscenity: Bombay High Court overturns seizure of Padamsee & Souza artworks appeared first on SabrangIndia.

However, Justice J.B. Pardiwala dissented, arguing that Section 6A should be struck down for “temporal unreasonableness,” as it no longer serves its original purpose and instead causes more harm.

This article delves into the judgement and reasoning employed by both the majority judgement and the minority opinion in arriving at their respective decisions. A detailed background becomes necessary to understand the judgement better.

The Constitutional provisions on Citizenship:

Part II- Articles 6-11 deal with Citizenship under Indian constitution. Article 5 deals with Citizenship at the commencement of Constitution, Article 6 deals with Rights of Citizenship of Certain Persons who have migrated to India from Pakistan with cut-off date for being deemed as a citizen set as July 19, 1948. Article 7 states that no person who migrated to Pakistan after March 1, 1947 shall be deemed to be a citizen of India.

Article 10 of the Constitution states that every person who is or is deemed to be a citizen of India under this part i.e., Part II—subject to the provisions of any law made by the Parliament—would continue to be such citizen.

Article 11 of the Constitution states that this part i.e., Part II does not take any power away from the Parliament to make any provision with respect to the acquisition and termination of Citizenship and all other matters relating to Citizenship. Essentially, the Parliament has extensive powers vis-à-vis Citizenship.

Article 29 of the Constitution deals with the protection of interests of minorities. It states that any section of citizens residing in the territory of India or any part thereof having a district script of culture of its ow shall have the right to conserve the same.

Assam Accord and the Citizenship Challenge

The Assam Accord is a significant agreement signed in 1985 between the Government of India and various student and political groups in Assam, aimed at addressing the issue of illegal immigration. The backdrop to the Accord includes the Bangladesh War of 1971, which led to a massive influx of refugees into India, particularly in Assam, resulting in demographic changes that caused anxiety among the indigenous Assamese population. The growing resentment towards illegal immigration sparked the Assam Agitation, a movement led by the All Assam Students’ Union (AASU) from 1979 to 1985, demanding the deportation of illegal migrants. In response to the unrest, the Indian government negotiated with movement leaders, culminating in the signing of the Assam Accord on August 15, 1985. The Accord established a cut-off date of March 25, 1971, for identifying illegal immigrants, stating that those who entered Assam after this date would be deported, while those who entered before would be granted citizenship.

Pursuant to this accord, Section 6A was added to the Citizenship Act, 1955 via the Citizenship (Amendment) Act, 1985, and the petitioners challenged this very Section 6A.

The Section grants citizenship to persons of Indian origin who migrated to Assam from Bangladesh. The provision classifies the class of migrants into two categories based on when they entered Assam: those who entered Assam before January 1, 1966 and those who came to Assam after January 1, 1966 but before 25 March 1971.

Provisions under Challenge

Section 6A (2) Conditions- Deemed Citizen of India

Section 6A (3) Conditions-Register to be a Citizen of India

The difference in rights between these two categories of people was that the person who has been registered for Citizenship under Section 6A (3) would be able to have their name included in the electoral roll after 10 years of their registration. Other than this, persons who became Citizens under Section 6A (3) will have same rights as those who became citizens under Section 6A(2).

Issues:

The core issue was the challenge to Section 6A, which is argued to violate the following Articles of the Constitution:

Petitioners’ Arguments

On Legislative Competence

The petitioners argued that as far as Bangladesh is concerned, it was a part of Pakistan at the time of amendment of the Constitution and for citizenship of people from the territories of Pakistan, the Constitution has Articles 6 and 7 which prescribes cut-off dates for people coming into India from Pakistan. Therefore, allowing migrants from Bangladesh and deeming them citizens was only possible via an amendment of the Constitution and not a Parliamentary legislation i.e., Citizenship (Amendment) Act, 1985.

On violation of Article 14

The petitioners argued that Section 6A violates Article 14 for three main reasons. First, it is too narrow as it grants citizenship only to migrants in Assam. Second, there is no valid reason for singling out Assam and ignoring other states that border Bangladesh, as these states form a similar group. Third, Section 6A sets a different cut-off date for migrants entering Assam compared to those entering other states.

On violation of Article 355

The petitioners argued that Section 6A violates Article 355 of the Constitution. They claimed that Article 355 places a duty on the Union to protect against external aggression. According to the petitioners, a three-judge bench in Sarbananda Sonowal v. Union of India interpreted “external aggression” to include aggression caused by external migration. They further argued that, instead of preventing such migration, Section 6A actually encourages more migration into Assam. To support this argument, the petitioners cited the Sarbananda Sonowal judgment, claiming that a law’s constitutionality can be challenged if it violates Article 355.

On violation of Article 29

The petitioners argued that Article 29 of the Constitution protects the rights of endogamous communities, which they claim applies to Assam. They stated that the large influx of illegal migrants from former East Pakistan has caused significant demographic changes, leading to a loss of Assamese culture. They further argued that Article 29(1) gives communities’ full freedom to preserve their cultural identity, which they believe is threatened by the forced imposition of foreign culture through unchecked migration from Bangladesh into Assam.

On temporal unreasonableness

The petitioners argued that Section 6A(3) of the Citizenship Act, 1955 has become unconstitutional over time for several reasons. They claimed it has failed to effectively address illegal immigration, as it has not achieved its goal of identifying and deporting those who entered Assam after March 25, 1971. The lack of a temporal limit makes the provision arbitrary, undermining its original intent to grant citizenship only to immigrants from 1966 to 1971 and impeding efforts to remove illegal immigrants from electoral rolls. Additionally, the passage of time has made it easier for post-1971 immigrants to exploit the provision by forging documents and making false claims, complicating verification as government records deteriorate. The petitioners argued that these factors render Section 6A(3) temporally unreasonable, allowing it to persist indefinitely and contradicting current policies on illegal immigration, thereby incentivizing rather than curbing the issue it was intended to address.

On lack of procedure

The petitioners argued that Section 6A (2) of the Citizenship Act, 1955, is unconstitutional because it does not outline a procedure for granting citizenship to immigrants who entered Assam from Bangladesh before January 1, 1966. They contrasted this with Section 6A(3), which specifies a procedure for those who migrated between 1966 and 1971.

The petitioners highlighted that unlike other provisions in the Citizenship Act, such as Sections 3 and 4, which establish registration regimes, Section 6A(2) does not require any registration process for individuals deemed citizens under its provisions. They argue that this lack of procedure creates ambiguity and raises concerns about the arbitrary conferment of citizenship.

Respondents’ Arguments

The respondents argued that Parliament had the legislative authority to enact Section 6A, as Article 11 of the Constitution grants Parliament the power to make laws regarding citizenship, even if they conflict with other provisions. They emphasised that Entry 17 of List I in the Seventh Schedule empowers Parliament to legislate on citizenship matters and refuted the petitioners’ claim that Articles 6 and 7 apply to East Pakistan, asserting that these articles operate in different contexts. Additionally, they contended that Article 14 ensures equality in benefits, not liabilities, justifying the differential treatment of Assam based on its unique historical situation and the Assam Accord. They maintained that a statute cannot be struck down simply for not addressing all classes, as Parliament has discretion in legislating varying degrees of harm.

Regarding temporal unreasonableness, the respondents asserted that Section 6A reflects a constitutional tradition of accommodating differences and that there is an underlying rationale for the cut-off dates, challenging the notion that the provision has lost its original purpose. They further argued that Section 6A reinforces multiculturalism and that demographic shifts are unrelated to the provision. They claimed that Article 21 protects both the Assamese community and the rights of foreigners, asserting that Section 6A is a “procedure established by law.”

The Citizens for Justice and Peace (CJP) had intervened in the matter. The detailed written submissions made by CJP and a subsequent note submitted to the Court may be read here.

The Judgement

Majority Opinion authored by Justice Surya Kant for himself, and for Justices M.M.Sundresh and Manoj Misra

On competence of Parliament to enact Section 6A

The Court said that Parliament has the power to enact laws concerning citizenship. This power is explicitly granted by Article 11 of the Constitution. Article 11 states that “nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.” The Court said this language gives Parliament broad powers to create citizenship laws, even if those laws appear to conflict with other provisions in Part II of the Constitution.

The Court also pointed to Entry 17 of List I in the Seventh Schedule of the Constitution, which states, “Citizenship, naturalisation and aliens,” as further confirmation of Parliament’s authority over citizenship. The Court explained that the final draft of Article 11 was deliberately amended during the drafting process to remove a clause restricting Parliament’s legislative power. The Court said that this amendment shows that the framers of the Constitution intended to give Parliament significant freedom in crafting laws related to citizenship.

On violation of Article 14

The Court’s Analysis of Section 6A and Article 14

The Court said that Section 6A did not violate Article 14 of the Constitution, which guarantees equality before the law. The petitioners had argued that Section 6A unfairly discriminated against the indigenous population of Assam by granting citizenship to immigrants from Bangladesh. This, they argued, created an unreasonable classification that violated Article 14.

The Court recognised the Assam Accord as a valid basis for the differential treatment of Assam. The Court said that the Assam Accord, a political agreement aimed at resolving the longstanding conflict over immigration in Assam, represented a negotiated settlement reflecting the state’s particular challenges.

The Court said that Article 14 permits reasonable classifications, meaning that the law can treat different groups differently as long as there is a justifiable reason for doing so. The Court said that the historical context and the political solution reflected in the Assam Accord provided a legitimate basis for the classification created by Section 6A.

The Court also addressed the argument that Section 6A was “manifestly arbitrary” because the cut-off dates and procedures for granting citizenship were unreasonable. The Court negated this argument, saying that the cut-off dates in Section 6A were carefully chosen based on significant historical events rather than being arbitrary. The date of January 1, 1966, was selected because it represented a key moment regarding immigration in Assam. The Court explained that March 25, 1971, was another important date, coinciding with the start of the Bangladesh Liberation War. On this date, the Prime Minister of Bangladesh promised to return refugees who had fled to India, highlighting the humanitarian issues involved.

The Court emphasized that these dates were not just randomly picked but were the result of thoughtful discussions. The Bangladesh Citizenship (Temporary Provisions) Order of 1972, which granted citizenship retroactively from March 26, 1971, also played a role in recognizing those affected by the war and addressing statelessness. Overall, the Court concluded that the cut-off dates in Section 6A were reasonable and reflected the unique challenges of the time, allowing the law to effectively manage the complexities of immigration in Assam.

On Violation of Article 355

The petitioners claimed that Section 6A violated Article 355 of the Constitution, arguing that granting citizenship to a large number of immigrants could be construed as facilitating “external aggression” and “internal disturbance” within the state of Assam.

However, the court was of the view that 6A being limited in its ambit did not promote or legitimise continuance of migration. 6A rather paves the way for a practical solution to the problem of immigration into Assam by devising an implementable modus operandi, harmonising India’s commitments, international relations and administrative realities.

The judgment further explained that Section 6A was enacted as part of a political solution aimed at resolving the existing conflict and instability in Assam. The court viewed Section 6A as a measure to bring about peace and order in the state rather than a catalyst for further disturbances.

Chief Justice DY Chandrachud’s concurring opinion

1. On violation of Article 29

CJI D.Y. Chandrachud opined that Section 6A does not violate Article 29(1) of the Constitution. He explained that Article 29(1), which guarantees the right of a group of citizens to protect their culture, centers on preventing the state from interfering with a group’s ability to safeguard its own culture. The petitioners argued that Section 6A, by granting citizenship to immigrants from Bangladesh, would dilute the Assamese population and adversely affect Assamese culture.

However, Justice Chandrachud stated that the petitioners did not demonstrate how Section 6A would directly prevent the Assamese people from taking steps to preserve their culture. He noted that the petitioners based their argument on the assumption that an increase in the Bengali population in Assam would harm Assamese culture but did not prove how Section 6A would directly result in this outcome.

Furthermore, he pointed out that Assam has other laws that safeguard Assamese culture, including laws mandating the use of the Assamese language in certain contexts. He also highlighted that the cultural and linguistic interests of the citizens of Assam are protected by constitutional and statutory provisions. Therefore, he concluded that Section 6A does not violate Article 29(1) because it does not obstruct the Assamese people from protecting their culture.

2. On Temporal Unreasonableness

CJI D.Y. Chandrachud opined that Section 6A(3) is not unconstitutional on the grounds of temporal unreasonableness. This legal doctrine posits that a law, even if initially constitutional, may become unconstitutional over time due to changing circumstances.

Justice Chandrachud stated that Section 6A(3) intended to create a lasting solution to the issue of migration from Bangladesh into Assam. While he acknowledged that concerns about the dilution of voting rights for people native to Assam due to the influx of migrants played a role in the Assam Accord, he asserted that addressing this specific issue of identification of migrants was not the only purpose of Section 6A(3). He determined that Section 6A(3) could not be deemed unconstitutional solely due to the passage of time, especially considering that the process of identifying and granting citizenship in Assam is an extensive undertaking that can take decades. He stated as follows:

“The principle of temporal unreasonableness cannot be applied to a situation where the classification is still relevant to the objective of the provision. The process of detection and conferring citizenship in Assam is a long-drawn out process spanning many decades. To strike it down due to lapse of time is to ignore the context and object of the provision”

3. On Lack of Process in Section 6A

CJI D.Y. Chandrachud opined that Section 6A(2) cannot be considered unconstitutional because it does not specify a procedure for registration. He stated that the Citizenship Rules, amended in 1987, implement the provisions of Section 6A(3). These rules outline that if the question of a person’s foreign status arises in proceedings other than those under the Foreigners Act, 1946, the matter must be referred to a Foreigners Tribunal for determination.

Although Justice Chandrachud did not directly address the lack of process in Section 6A(2) as raised by the petitioners, it is important to note that he refuted the claim that Section 6A(2) was unconstitutional due to a lack of process. The majority judgement too noted that the many other rules complement the implementation of Sectio 6A and all of them have to be interpreted as one harmonious code.

The Dissent

Justice Pardiwala’s Dissent: Temporal Unreasonableness and Lack of Procedure in Section 6A

Justice J.B. Pardiwala wrote a dissenting judgment, disagreeing with Justice Surya Kant’s conclusion that Section 6A of the Citizenship Act, 1955 was constitutionally valid. Justice Pardiwala found Section 6A unconstitutional, arguing that while it might have been constitutional at the time of its enactment in 1985, the provision had become unconstitutional over time.

Justice Pardiwala pointed to the doctrine of temporal reasonableness, a legal principle that suggests a law, while valid at its enactment, may become arbitrary over time due to changing circumstances. He applied this doctrine to analyzeSection 6A(3), which establishes a procedure for determining the citizenship status of immigrants who entered Assam from Bangladesh between January 1, 1966, and March 25, 1971. If such individuals are found to be “foreigners”, they are deleted from electoral rolls for ten years.

Justice Pardiwala argued that the low number of immigrants actually detected and deemed “foreigners” under this provision suggests the process has become arbitrary and ineffective. He highlighted that over 40 years have passed since the enactment of Section 6A, and the original objective of the ten-year exclusion from electoral rolls has become meaningless as that timeframe has long since passed.

Justice Pardiwala also criticised Section 6A for its lack of a well-defined procedure. He argued that the provision does not adequately address the process of determining “ordinary residence” in Assam, a key factor in determining eligibility for citizenship under Section 6A. He stated that this lack of clarity could lead to arbitrary and discriminatory application of the law.

In emphasizing the need for temporal limits, he underscored that other immigration and citizenship laws in India have inherent temporal limitations. For instance, Paragraph 2(1) of the Foreigners (Tribunal) Order, 1964 stipulates that a foreigners tribunal can only adjudicate on an individual’s citizenship status if a reference is received from a competent authority within a specified timeframe. Similarly, the Immigrants (Expulsion from Assam) Act, 1950 is centeredaround removing immigrants who entered Assam after a specific date.

Therefore, according to Justice Pardiwala, the lack of a specified timeframe within Section 6A, especially when viewed alongside other related laws, creates inconsistencies and renders the provision susceptible to arbitrary implementation. He concluded that Section 6A fails to provide a fair and reasonable process for determining citizenship, leading to discriminatory outcomes for those who migrated to Assam from Bangladesh during the specified period.

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The post Section 6A of the Citizenship Act, 1955 is constitutional, says Supreme Court in a 4:1 Judgement; Justice J.B. Pardiwala dissents appeared first on SabrangIndia.

The shift in response to demands from workers

According to Justice Chandru, a former judge and a unionist before he became a judge, in an interview with The News Minute, labour relations in Tamil Nadu have significantly shifted over the past decades. He recalled how in 1968, under C.N. Annadurai, the DMK government remained neutral in labour disputes, instructing police not to interfere. However, after Annadurai’s death, the DMK became more involved by aligning with its own labour wing under M. Karunanidhi’s leadership. He added that later governments, including those of MGR and Jayalalithaa, adopted more repressive measures such as banning strikes and using police force against workers. Justice Chandru opined that an understanding between the government and multinational companies has led to lax enforcement of labour laws, citing an instance where a Korean company was promised no unions would be allowed in its factory. He criticised the current Tamil Nadu government’s handling of the Samsung strike, arguing that their approach mirrored the BJP’s, despite ideological opposition. Furthermore, he emphasised that collective bargaining, once a strong workers’ right, has been reduced to “collective begging,” with labour disputes often delayed in courts, leaving workers without timely justice.

From ‘registration but not recognition’ to ‘neither registration nor recognition’

Trade Unions are supposed to be registered under the Trade Unions Act, 1926 and the workers had alleged that there has been a deliberate delay in registering the union. Usually, the cases used to such that a registered trade union is not recognised by the management for bargaining process, but the Samsung case presents another hurdle for the unions.

One of the core demands of the workers in the Samsung factory strike was the formal recognition of the Samsung India Labour Welfare Union (SILWU), a request the company refused to fulfil. Union recognition is a critical issue that managements often use to suppress worker demands, as companies can deny un-recognised unions the authority to represent workers, weakening their ability to bargain collectively.

The Industrial Disputes Act, 1947 prohibits Unfair Labour Practices. Section 25T of the Act states that no employer or workman or a trade union, whether registered under the Trade Unions Act, 1926 or not, shall not commit unfair labour practices. Section 25U of the Act imposes a punishment for violation of Section 25T—up to 6 months imprisonment or with fine which may extend to Rs.1, 000 or both.   The Fifth Schedule of the Act lists of Unfair Labour practices and within this, refusing to bargain collectively in good faith with the recognised trade unions is also present. Therefore, if companies recognise a union, they will have to bargain with it and failure to do so is punishable.

The complexities surrounding union recognition in India are deeply rooted in the country’s legal framework. While Article 19(1) (c) of the Constitution guarantees the right to form associations or unions, there is no specific provision mandating formal recognition of trade unions by employers. Recognition is a key step that allows unions to engage in collective bargaining, enabling them to negotiate for workers’ interests effectively and maintain stable industrial relations.

However, a clear distinction exists between registration and recognition. The Trade Unions Act of 1926 outlines a process for the registration of trade unions, granting them legal status and certain protections. Despite this, registration does not automatically lead to recognition by employers. Recognition, unless mandated by specific state laws, is generally left to the discretion of employers, creating a fragmented system that allows management to influence and delay the process, further eroding the bargaining power of the unions.

Some states, like Maharashtra, have attempted to address this issue with laws such as the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, which governs union recognition and aims to protect workers from unfair labour practices. Other states, including West Bengal, Kerala, and Odisha, have established procedures for union recognition, which can involve secret ballots or membership verification. In some of these legislations, the applicant trade unions need to have not less than 30% of the membership of the establishment and apply for a recognition by the Industrial Court.

Various methods, such as the check-off system (where union fees are deducted from workers’ wages via authorisation from the worker) and secret ballots (as supported by the Supreme Court in Food Corporation of India Staff Union vs. Food Corporation of India, 1995 AIR SCW 1288), are used to determine union representation. However, the absence of a uniform national law leaves recognition vulnerable to manipulation, allowing employers significant leverage in the process. The Code of Discipline, adopted in 1958, serves as a voluntary set of guidelines for maintaining industrial discipline. The Code includes criteria for union recognition, but it is not legally binding

This lack of clarity and consistency in the legal framework creates challenges for unions, leaving them unable to fully represent their members’ interests, thus weakening their influence and reducing workers’ ability to organise effectively.

Conclusion

In the Samsung workers’ case, the government allegedly delayed the registration of the Union in the first place under the Trade Union Act, 1926 thus attracting the ire of the protesting workers.

To conclude, the right to strike in India is not a fundamental right, nor is there a clear legal guarantee for the recognition of trade unions. Both remain largely at the discretion of employers, leaving room for management to suppress workers’ collective bargaining power. This lack of recognition can hinder workers from effectively voicing their concerns or negotiating better terms.

There is a pressing need for laws that establish clear guidelines for mandatory recognition of trade unions. Currently, while the Trade Union Act, 1926 provides for the registration of unions, it does not ensure their recognition by employers. Without a legal obligation to recognise unions, employers often have significant leeway to deny representation, as seen in cases like that of Samsung. A national framework in the form of Industrial Relations Code, 2020 has been proposed in which there were powers to the Union government to frame rules for Union Recognition but the Act has not been implemented yet.  The solution could also like bringing legislations similar to state-level acts like the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, which could provide a more uniform approach across India, reducing the ability of employers to exploit the lack of recognition.

However, these issues must be understood in the context of the Directive Principles of State Policy (DPSPs), which, though not enforceable in court, provide a guiding framework for governance. Articles 39 and 43 of the DPSPs emphasize fair distribution of resources and securing living wages for workers, underscoring the need for mechanisms that support workers’ rights, including the right to strike.

The Supreme Court in All India Bank Employees’ Association v. National Industrial Tribunal (1962 AIR 17), held that the right to form a union comes under the ambit of the right to form an association under Article 19 (1) (c). There have also been instances of judicial interpretation, such as in Kameshwar Prasad v. State of Bihar (1962 AIR 1166), where the right to protest was protected but the court refused to declare Right to Strike as a fundamental right. This suggests that strikes, as a form of collective demonstration, may find indirect support in constitutional protections for free speech and assembly but not a direct one.

Ultimately, without robust legal guarantees for union recognition, workers will continue to face barriers in advocating for their rights. Aligning labour laws with the principles laid out in the DPSPs would provide greater protection for workers and strengthen their ability to organize, ensuring that they can not only form unions but also have those unions recognised and respected by employers.

(The author is part of the organisation’s legal research team)

Related:

Victory for Samsung workers in Tamil Nadu: A hard-fought struggle pays off, brings key wins

TN: Samsung Workers Continue Strike, Demand Union Recognition

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