RULJ (2015) Vol. 1.

RULJ
RAJASTHAN UNIVERSITY LAW JOURNAL

BY
UNIVERSITY FIVE YEAR LAW COLLEGE
JAIPUR

VOLUME 1 ISSUE 1
JANUARY-JUNE 2015

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RAJASTHAN UNIVERSITY LAW JOURNAL

VOLUME 1 2015 ISSUE 1

PATRONS

Mr. Hanuman Singh Bhati Dr. Manju Koolwal

(Vice Chancellor, (Director
University of Rajasthan) Five Year Law College, Jaipur)

Justice Panachand Jain

(Former Judge Rajasthan High Court)

ADVISORY BOARD

Prof. T. Bhattacharya
(Former Head, Dean, Department of Law)

Prof. N.H. Gupta

(Former Principle, University Law College)

BOARD OF REVIEW

Dr. Bhupesh Rathore Dr. Sonu Agarwal

Dr. Richa Dangayach Dr. Veenu Rajpurohit

STUDENT EDITORS

Harshad Kapoor Harshit Mittal

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RAJASTHAN UNIVERSITY LAW JOURNAL

VOLUME 1 2015 ISSUE 1

RULJ
Mode of Citation: 1 RULJ 2015

Copyright © 2015: Any reproduction or publication of the text of the articles

contained in this journal, without prior permission of University Five Year Law
College, University of Rajasthan, Jaipur is punishable under copyright laws.

Disclaimer: The views expressed by the contributors are personal and do not in any
way represent opinion of the editors.

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TABLE OF CONTENTS

Editorial

Articles

CONSTITUTIONAL PROVISIONS AND ENVIRONMENT PROTECTION IN INDIA: A

LEGAL INSIGHT
ATRAYEE DE - AMITY LAW SCHOOL, CENTER –II, NOIDA 10

REVISITING THE DEBATE ON INDIAN FEDERALISM: A THEORETICAL AND

COMPARATIVE PERSPECTIVE
AMBUJ DIXIT- SCHOOL OF LAW, KIIT UNIVERSITY, BHUBANESWAR 22

WRITTEN CONSTITUTION AS A LIMITATION: COMPARATIVE STUDY BETWEEN

U.S.A. AND INDIA

KARAN GEHLOT- ITM UNIVERSITY, GURGAON 32

RELIGIOUS CONVERSIONS VERSUS RIGHT TO FREEDOM OF RELIGION

KUSH KALRA - NATIONAL LAW UNIVERSITY, DELHI 49

AFFIRMATIVE ACTION ACROSS COMMON LAW COUNTRIES: A COMPARATIVE

APPROACH
PITAMBER YADAV - JINDAL GLOBAL LAW SCHOOL, SONIPAT 60

THEORISING SPECIAL CATEGORY STATUS: QUESTION OF ASYMMETRIC

FEDERALISM
RAHUL MOHANTY- NALSAR, HYDERABAD 70

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EUTHANASIA – A DEBATE OVER DEATH: AGREEMENTS & CONTRADICTIONS

SONAL VYAS- UNIVERSITY FIVE YEAR LAW COLLEGE, JAIPUR 88

CONCEPTION OF CONSTITUTIONALISM AND FUNDAMENTAL RIGHTS IN INDIA:

AN ANALYTICAL PERSPECTIVE

SUNKLAN PORWAL - AMITY LAW SCHOOL, AMITY UNIVERSITY, NOIDA 98

HUMAN TRAFFICKING: A SOCIO-LEGAL FACET OF MODERN WORLD

TANAY JAIN & NIMISH M. BHAGWATI - UNIVERSITY FIVE YEAR LAW
COLLEGE, JAIPUR 109

CONSTITUTION WITH RESPECT TO FLOW OF WATER

ARNABI DUTTA- KIIT SCHOOL OF LAW, KIIT UNIVERSITY, BHUBANESWAR
126

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EDITORIAL

“We are well aware that the review takes very seriously its role as
judge of judges - and to that, we say, more power to you. By your
criticisms, your views, your appraising cases, your tracing the trends,
you render the making of new law a little easier. In a real sense, you
thus help to keep our system of law an open one, ever ready to keep
pace with changing social patterns”. 
Justice Stanley Flug

Looking forward with a vision that law journals are critical to the proper
development of law and an eminent source of research for the students,
academicians and the Bar & the Bench the inaugural issue of Rajasthan University
Law Journal describes in depth, the current state of the law, and offers analysis of
legal policies, rules and history. The Journal is an annual peer reviewed journal
which seeks to provide a forum for engaging in discussions on constitutional law.

Constitution is not only law but goes beyond. People regard it as an expression
of their aspirations from the State constituted by them. Constitution therefore, is
rightly regarded as a living law. Aspirations of the people change from one
generation to another generation. Therefore, constitutions across the nations are
accordingly amended and enriched by the experiences gained by people over
generations.

Our attempt to instigate a spirit of enquiry about several constitutional issues

has been duly supported by researchers from all over the country with inputs
ranging from students to academicians and even practicing lawyers in this issue.
These wide varieties of contributions have indeed motivated us to work hard
towards excellence and have also expanded our knowledge base for a better


Justice Stanley Flug, A Judge Looks at the Law Review , 28 New York University Law Review, 918
(1953).
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understanding of the nuances of public law. Though we have selected few articles
from the abundant submissions sent to, we were greatly impressed with the quality
of research work put in by the students and their interest in this field.

We express our gratitude to the support and guidance extended by our Chief Patron
Justice P.C. Jain, Patrons - Sh. Hanuman Singh Bhati (Vice Chancellor), Dr. Mahesh
Koolwal (Dean), Prof. Manju Koolwal (Director) and all the faculty advisors.

We hope that the articles included in the journal would develop better
understanding of the subjects discussed and turn out to be helpful to readers from
every corner of legal fraternity.

(EDITORIAL BOARD)

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CONSTITUTIONAL PROVISIONS AND ENVIRONMENT PROTECTION IN

INDIA : A LEGAL INSIGHT

ATRAYEE DE
Our constitution is not an inert but has grown and evolved over the years. In the Indian
scenario, environment protection, has not only been raised to the status of fundamental law of the
land, but it has also been webbed with human rights approach and is now considered as a well-
established fact that it is the basic human right of every individual, to live in a pollution free
environment with complete human dignity. The preamble to our constitution provides for a
socialist society which promotes environmental protection. The fundamental duties again clearly
impose duty on all citizens to protect environment. The Directive principles further are directed
towards ideals of building welfare state. Healthy environment is one of the essential elements of a
welfare state. Article 47 states that the State shall regard the raising of the level of nutrition and
the standard of living of its people and the improvement of public health which includes the
protection and improvement of environment as a part of its primary duties. Article 48 deals with
organization of agriculture and animal husbandry. Article 48-A of the constitution states that the
state shall endeavor to protect and improve the environment and to safeguard the forests and wild
life of the country. Part III guarantees fundamental rights which are essential for the development
of an individual. A citizen cannot carry on business activity, if it is health hazards to the society
or general public. Public Interest Litigation under Article 32 and 226 has resulted in a wave of
environmental litigation and establishment of environmental courts. The constitution encapsulates
the framework of protection and preservation of nature without which life cannot be enjoyed. The
knowledge of these provisions is necessary to bring greater public participation, environmental
awareness amongst the masses.


2nd Year, B.A. LL.B (Hons.), Amity Law School, Center –II, Noida.

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1. INTRODUCTION
In the Indian scenario, environment protection, has not only been raised to the status of
fundamental law of the land, but it has also been webbed with human rights approach and is now
considered as a well-established fact that it is the basic human right of every individual, to live in
a pollution free environment with complete human dignity. The Supreme Court of India has
opined that the essential features of sustainable development such as the ―precautionary
principles‖ and also the ―polluter pay‘s principle‖ are also part of the environmental law of the
country.1 The Constitution of India imposes an obligation on the ―state‖ as well as its ―citizens‖
to protect as well as improve the environment.2 The provisions contained for environmental
protection by the Indian Constitution has been followed by other nations in the world. One such
nation is South Africa. Similar provisions for environmental protection have been incorporated by
the framers of the South African constitution. In this article an attempt has been made to analyze
the various constitutional mandates that helps in promoting the cause of environmental
protection, we shall analyze each of these mandates in details, under the following sub-heads:

2. PREAMBLE
At the very outset, the preamble establishes that our country is based on the ―socialistic‖3
pattern of society, in which the state pays more attention to social problems than on individual
problems. The basic idea behind the concept of socialism is to promote ―decent standard of living
for all‖ which is only possible in a pollution free environment. Pollution is considered as one of
the social problems. The state is thus compelled by the Constitution to pay attention to this social
problem to establish a just social order.4 This objective of the preamble is vividly reflected and in
specific terms in Part IV of the Constitution, which deals with the directive principles of state
policy. The preamble further declares India to be a ―Democratic Republic‖. In such a setup,

1
See Vellore Citizens‘ Welfare Forum v. Union of India, (1996) 5 SCC 647at 659-660 (This case is popularly
known as T.N. Tanneries Case).
2
See Article 48-A and 51-A(g) of the Const. of India.
3
The word ―socialist‖ was added to the preamble by the Constitution (Forty-second Amendment) Act, 1976 vide
(w.e.f. 3-1-1977). However, the ―socialism‖ has always been the goal of the Indian Constitution, even prior to the
amendment of 1976, as is evident from the directive principles of the state policy. See Sanjeev Coke Mfg. Co.v.
Union of India, AIR 1983 S.C. 239 at 251.
4
Article 38 of the Const. Of India mandates the State to secure a social order for the promotion of welfare of the
people.

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people have the right to know and to participate in the governmental policies and access
information of environmental policies which is extremely important for the success of
governmental policies. Other objectives of the preamble include justice, liberty and equality
which finds its place in the Part III of the Indian Constitution that deals with fundamental rights.

3. FEDERAL SYSTEM OF GOVERNMENT

Problem of the environment can be primarily tackled with the help of various statutes.
Thus, if we consider the scenario from the environmental point of view, allocation of legislative
authority becomes extremely important. The Indian setup, has adopted a federal form of
government whereby, the governmental power is shared between the central and state
governments. Part XI of the Constitution (Articles 245-263) regulates the legislative and
administrative relations between the union and the states. Article 245 empowers the parliament to
make laws for whole of India whereas the state legislatures on the other hand, have been awarded
with powers to legislate for their respective states. Article 246 further divides the subject matters
of legislation between the Union and States under 3 distinct lists, i.e., the Union list which
contains 100 items (though last item is numbered 97), the State list which contains 61 items
(Initially there were 66 items in the list) and the Concurrent list which contains 52 items (though
the last item is numbered 47). Under the Union list only the parliament can make laws, along with
this the parliament has also been awarded with ―residuary powers‖ on any matter which is not
covered under the 3 lists.5 The subjects mentioned under the Union list, inter alia include, atomic
energy, mineral resources, defense, UNO, development of oilfields, mineral resources and other
items including inter-state rivers, fishing6 etc. The items having an inter-territorial environmental
impact are also under the legislative authority of the parliament as for e.g. items of the State list
inter alia, include public health, sanitation, agriculture, ponds, water supply, irrigation, drainage7
etc. and related environmental impact is precisely local, and are left to be tackled at the local
level. On the Concurrent list, both the Union and State are empowered to make laws for the inter
alia which include, forests, protection of wildlife, population control, family planning etc. Items
in this list sometimes have a local and sometimes a national implication; these are left to be

5
See entry 97 in the Union List.
6
See entries No. 6,7,9,12,13,14,22 to 30 and 52 to 57 of the Union List.
7
See entries No. 5,6,14,16,17 and 24 of the State List.
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tackled by both the Centre as well as by the State legislatures. Article 254, talks about cases
where inconsistency may occur between the laws made by the parliament and the legislatures of
different states, it provides that if the central law conflicts with the state law on any item of the
Concurrent list then the Central law shall prevail over the state law (doctrine of repugnancy
applies), if it has received the assent from the president. Thus, if we consider the distribution
scheme of the legislative power between the center and the states under the federal setup we find
that it is evident that there are ample of provisions to make laws dealing with the various
environmental problems at both the local as well as the national level. The government controls
the finances largely, it may happen when an industrial project is to be allocated in a particular
state, it may have certain environmental impact in the state, so maybe it will be opposed by the
environment and planning department of the concerned state. On the other hand, the central
government may threaten to withdraw the project from a particular state, if it results into a
conflict between development and the environment. Such type of conflict is taken care by the
Environmental Impact Assessment (EIA) which is basically an effort to anticipate measure and
weigh the socio-economic and ecosystem changes which may be the end product of the proposed
project. The need for EIA, has been recognized even by the planning commission in its seventh
five year plan. However, the present system of administrative framework which has centralized
environmental appraisal sometimes leads to conflict between the project authorities and
environment authorities.8 Thus, it has been suggested that the project authorities should be
compelled to consider all the environmental factors before incorporation of the project and any
conflict between development and environment should be avoided by taking into consideration
environmental costs and benefits analysis.

4. OBLIGATION TO IMPLEMENT INTERNATIONAL AGREEMENTS

The objectives of the international agreements can be only achieved if all the relevant
countries become parties to them. India is a signatory to a number of international treaties and
agreements relating to regional and sometimes global environmental issues. India has played a
leading role from 1972 UN Conference on Human Environment at Stockholm to 1992 UN

8
The conflict between environment and development was highlighted by the environmentalists in the Silent Valley
Project and the Tehri Dam Project.
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Conference on Environment and Development at Rio de Janerio and also in the Earth summit
Plus 5 of 1997 at New York. India is therefore under an obligation to translate the contents and
decisions of the international conferences, treaties & agreements into the stream of its national
laws. Article 51 (c) states that ―the state shall endeavor to foster respect for international law and
treaty obligations in the dealings of organized people with one another‖. Article 253 of the
Constitution empowers the parliament ―to make any laws for the whole or any part of the territory
of India for implementing any treaty, agreement or convention with any other country / countries/
any decision made by any international conference, association or other body‖. Entries number 13
and 14 of the Union list includes items on which parliament can make laws provides
―participation in international conferences, associations and other bodies, implementing of
decisions made thereat‖9 and ―entering into treaties and agreements with foreign countries and
implementing of treaties, agreements and conventions with foreign countries‖10. Thus, Article
253 is read with entries 13 & 14 of the Union list, we can conclude that the parliament can pass
any law including laws on environmental protection and the same cannot be challenged before
the courts on the ground that the parliament lacks legislative competency11 to do so. These
provisions served as potent weapons in the armory of the courts to uphold any parliamentary
legislation if it is in pursuance of Article 253 read with entries 13 & 14 of the Union list.
Parliament has made use of this power to enact Air (Prevention and Control of Pollution) Act,
1981 and Environment (Protection) Act, 1986. Preambles of both the laws clearly indicate that
that these laws were enacted to implement the decisions reached at the United Nations
Conference on Human Environment held at Stockholm in 1972.

5. ENVIRONMENT PROTECTION ACT, 1986

The decisions were taken at the United Nations Conference on the Human Environment
held at Stockholm in June, 1972, in which India participated and agreed to take appropriate steps

9
Entry number 13 in the Union List in the VII Schedule.
10
See entry number 14 in the Union List in the VII Schedule.
11
In India, the judiciary has the power of judicial review under Articles 32 and 226 and they can strike down any
parliamentary legislation if it is enacted without any legislative competence. The Supreme Court has nullified five
Constitutional amendments which sought to diminish judicial power either directly or indirectly. See Kesvananda
Bharti v. State of Kerela, A.I.R 1973 S.C.1461; Indira Gandhi v. Raj Narain, A.I.R 1975 S.C. 2299; Minerva Mills
Ltd. v. Union of India, A.I.R. 1980 S.C. 1789; Waman Rao v. Union of India, A.I.R 1981 S.C. 271; and P.
Sambamurthy v. State of A.P. , A.I.R 1987 S.C. 663.
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for the protection and improvement of human environment and the prevention of hazards to
human beings, other living creatures, plants and property. In People‘s Union for Civil Liberties v.
Union of India12, the Supreme Court held that the provisions of the international covenant, which
elucidate and go to effectuate the fundamental rights guaranteed by our constitution, can certainly
be relied upon by the courts as facets of those fundamental rights and hence, enforceable as such.
Thus, the Indian Constitution puts an obligation and authorizes our parliament to implement the
decision of any international treaty, agreement or convention with other country or other
associated bodies.

6. FUNDAMENTAL DUTIES
The 42nd Amendment in 1976 added a new part IV-A dealing with Fundamental Duties in
the Constitution of India.13 Article 51-A of this part enlists 11 fundamental duties. This part was
added on the recommendations of the Swarn Singh Committee bringing the Constitution of India
in line with Article 29(1) of the Universal Declaration of Human Rights.14 Article 51-A (g)
specifically deals with the fundamental duty with respect to environment. It provides: It shall be
the duty of every citizen of India to protect and improve the natural environment including the
forests, lakes, rivers and wildlife, and also to have compassion for living creatures. Article 51-A
(j) further provides: It shall be the duty of every citizen of India to strive towards excellence in all
spheres of individual and collective activity, so that the nation constantly rises to higher level of
endeavor and achievements. The basic motive behind the fundamental duties is to inculcate a
sense of responsibility among the people and to promote their participation in restructuring and
building a welfare society. The protection of the environment is a constitutional priority and it is
the concern of every citizen. Article 51-A (g) is the fundamental duty of every citizen to protect
and improve natural environment. But, in the present scenario pollution is not only caused by
exploiting the natural environment but otherwise also. In modern industrialized civilization such a
concept may seem to be a misnomer. It is submitted that the word natural before the word
environment is to be understood in a broad sense. Nature gave us the environment pollution free.

12
(1997) 3 SCC 433 at 422.
13
See Section 11 of the Constitution (Forty-second Amendment) Act, 1976 (w.e.f. 3-1-1977).
14
See Article 29(1) of the Universal Declaration of Human Rights. It provides ―Everyone has duties to the
community in which alone the free and full development of his personality is possible‖.
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The fundamental duty of every citizen is not only to protect the environment from any kind of
pollution but also to improve the environmental quality if it has been polluted. Thus, the
underlined emphasis of this fundamental duty is that every citizen has a duty to make an
endeavour to preserve the environment in the same way as it was given to us by nature. Now, we
come to the question of ensuring the compliance of these fundamental duties. When they were
incorporated in the Constitution in the year 1976, it was considered that the fundamental law of
the land reminds the citizens of their constitutional obligations. They cannot be directly enforced.
However, in due course of time, the judicial activism provides an impetus to achieve the
underlined objectives of the fundamental duties, particularly, Article 51-A (g) relating to the
environment. The interrelationship between Articles 48, 48-A and 51-A (g) of the constitution has
been explained by the Supreme Court in the State of Gujarat v. Mirzapur Moti Kureshi Kassab
Jamat.15

7. DIRECTIVE PRINCIPLES OF STATE POLICY

Part IV of the Constitution deals with directive principles of State policy. These directive
principles represent the socio-economic goals which the nation is expected to achieve. The
directive principles form the fundamental features and the social conscience of the Constitution
and the Constitution enjoins upon the State to implement these directive principles.16 These
directive principles are designed to guide the destiny of the nation by obligating three wings of
the State i.e. legislature, judicature and executive to implement these principles. Article 47 of the
Constitution is one of the directive principles of State policy and it provides that the State shall
regard the raising of the level of nutrition and the standard of living of its people and the
improvement of health as its primary duties. The improvement of public health also includes
protection and improvement of the environment without which public health cannot be assured.
The 42nd Amendment of the Constitution in 1976 added a new directive principle in Article 48-
dealing specifically with the conservation and improvement of the environment. It goes as under:
The state shall endeavor to protect and improve the environment and to safeguard the forests
and wildlife of the country.

15
(2005) 8 SCC 534 at 567.
16
See State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 at 379.

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Thus, Indian Constitution became one of the rare constitutions of the world where
specific provisions were incorporated in the Suprema Lex putting obligations on the State as
well as citizens to protect and to improve the environment. This certainly is a positive
development of Indian law. The State cannot treat the obligations of protecting and improvising
the environment as mere pious obligation. The directive principles are not mere show-pieces in
the window-dressing rather they are fundamental in the governance of the country and being a
part of the supreme law mandatory to implement.
Article 37 of the constitution provides:
The provisions contained in part IV shall not be enforceable by any court, but the principles
therein laid down are nevertheless fundamental in the governance of the country and it shall be
the duty of the state to apply these principles in making laws. The court cannot directly enforce
the directive principles by compelling the state to apply them in making the law but only when
the state commits a breach of its duty by acting in a way which is contrary to these principles The
directive principle serves the courts as a code of interpretation. They now stand as elevated to
inalienable fundamental human rights. Even they are justiciable by themselves. In M.C. Mehta v.
Union of India17, the court observed that Articles 39(e), 47 and 48-A by themselves and
collectively cast a duty on the state to secure the health of the people or to, improve public health
and to protect and improve the environment.

8. FUNDAMENTAL RIGHTS
The essence of Principle 1 of the Stockholm Declaration can be seen in our constitution in
Articles 14, 19 and 21 dealing with the Right to Equality, Freedom of expression and the right to
life and personal liberty respectively.18 The permanent people‘s tribunal regards the anti-
humanitarian effects of industrial and environmental hazards not as an unavoidable part of the
existing industrial system, but rather as a pervasive and organized violation of the most
fundamental rights of humanity. Most important among these are the right to life, health,

17
(2002) 4 S.C.C. 356.
18
Principle 1 of the Stockholm Declaration provided that man has the fundamental right to freedom, equality and
adequate conditions of life, in an environment of quality that permits a life of dignity and well being, and he bares a
solemn responsibility to protect and improve the environment for present and future generations.
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expression, association and access to justice.19 All these rights are present in Part III of the Indian
constitution which deals with fundamental rights. A constitutional provision is never static it is
ever evolving and ever changing and, therefore, never admit of a narrow, pedantic or syllogistic
approach. The fundamental rights are intended to serve one generation after another. The
provisions of part III and part IV dealing with fundamental rights and directive principles
respectively are supplementary and complementary to each other. The basic idea behind
fundamental rights is to achieve the goals mentioned in directive principles and must be
construed in the light of the directive principles.20 A right can be recognized as a fundamental
right even though it is not expressly mentioned in the constitution. Thus, we can say that there are
many unenumerated fundamental rights in Part III and judicial activism in India has taken a lead
in interpreting various unenumerated rights in Part III of the Constitution.21 Environment
protection is one of them. Specific provisions are only provided in the part dealing with Directive
Principles and Fundamental Duties, yet right to live in a healthy environment has been interpreted
by the judiciary into various provisions of Part III dealing with fundamental rights. Thus, the
judiciary in India has provided impetus to the Human Rights approach for the protection of the
environment.

9. RIGHT TO LIFE AND RIGHT TO LIVE IN HEALTHY ENVIRONMENT

Article 21 guarantees a fundamental right to life- a life of dignity, to be lived in a proper
environment, free of danger of disease and infection. We all are aware of the fact that there exists
a close link between life and environment. The right to life would be meaningless if there was no
healthy environment. The judicial interpretation has made Right to live in a healthy environment
as the sanctum sanctorum of Human Rights. In M.C. Mehta v. Union of India22, the Supreme

19
Asia‘ 92 Permanent peoples tribunal, findings and judgements- Third Session on Industrial and Environmental
Hazards and Human Rights: 19-24 October, Bhopal to Bombay (India) at 14 (1992).
20
See Unni Krishnan v. State of A.P. (1993) 1 SCC 645 at 730.
21
Right to free legal assistance was recognised in Khatri v. State of Bihar, A.I.R 1981 S.C. 928; the right of prisoners
to be treated with human dignity was recognised in Charles Sobraj v. Superintendent, Central Jail, Tihar, A.I.R
1978, S.C. 1514; Right to live with human dignity, free from exploitation was recognised in Bandhu Mukti Morcha.
v. Union of India, AIR 1986, S.C.180.
22
A.I.R. 1987 S.C. 1086.

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Court impliedly treated the right to live in pollution free environment as a part of the fundamental
right of life under Article 21 of the constitution.

10. RIGHT TO LIVELIHOOD

The Judicial interpretation has further broadened the scope and ambit of Article 21 and
now ―right to life‖ includes ―right to livelihood‖. Even the right to earn livelihood is considered
as part of the right to life under Article 21. This broad interpretation is very helpful as it helps in
checking the governmental action which has an environmental impact that threatens the poor
people of their livelihood by dislocating them from their place of living or otherwise depriving
them of their livelihood. In the last few years many people have been protesting against the
construction of large dams as they generally displace thousands of tribal people and forest
dwellers and thus deprive them of their livelihood.
Fundamental Freedom of Speech and Expression Article 19(1) (a) gives every citizen a
fundamental right of speech and expression. In India most of the environmental jurisprudence has
evolved from judicial activism. Most of the cases have come before the court as Public Interest
Litigation or PIL in which the people exercised their freedom of speech and expression by writing
letters to the court or otherwise by filing petitions before it, highlighting the violation of the rights
of the people to live in a healthy environment in one way or the other.

11. RIGHT TO KNOW

The Right to know is also implicit in Article 19(1) (a) and it has a close link with Article 21
of the Constitution, particularly in environmental matters where the secret government decisions
may affect health, life and livelihood of the people. The Right to know or access to information is
the basic right for which people of a democratic country like India aspires. Secrecy erodes the
legitimacy of elected governments.
Freedom to Carry on Trade or Business Article 19(1) (g) guarantees all citizens the right
―to practice any profession, or to carry on any occupation, trade or business‖. However, this right
of citizens is not absolute. Its exception is subject to Article 19(6) according to which reasonable
restrictions which are in the interest of general public can be imposed. Thus, environment can be
protected from any business which is hazardous.

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12. RIGHT TO EQUALITY

The Right to Equality in the Indian Constitution is provided under Article 14. It strikes at
―arbitrariness‖ of governmental action because ―an action that is arbitrary must necessarily
involve a negation of equality. Whenever there is arbitrariness in State action, whether of the
legislative or of the executive or of an authority under Article 12, Article 14 springs into action
and strikes down such action.23 In fact, the absence of arbitrary power is the essence of rule of
law upon which our whole constitutional system is based. In such a system, discretion when
conferred upon execution authorities must be confined within defined limits.
In D.D. Vyas v. Ghaziabad Development Authority24, the grievance of the petitioner was
that the respondents had not taken any steps to develop the area reserved for park. On the
otherhand, respondents were making time to carve out plots on such open space dedicated for
public park in the plan and alienate the same with a view to earning huge profits. The Allahabad
High Court followed the dictum of the Supreme Court in Bangalore Medical Trust and held that
authority or state cannot amend the plan in such a way so as to destroy its basic feature allowing
the conversion of open space meant for public park.

13. REMIDIES FOR THE ENFORCEMENT AND WRIT JURISDICTION

According to Doctor B.R.Ambedkar, Article 32 is the backbone of the Indian Constitution.
He regarded this article as the most important article in our constitution. It is the most innovative
part of the Indian Constitution as fundamental rights can be enforced in the Supreme Court under
this article by filing a writ. It is also conferred upon the 24 High Courts of the country under
Article 226 of the Constitution. Under these provisions the Supreme Court and High Courts have
the power to issue any direction or orders or writs in the nature of Habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever is appropriate. The only difference between
the writ jurisdictions of the two is that one can move the Supreme Court only for the enforcement
of fundamental rights, whereas in High Courts, it may be for the enforcement of fundamental
rights or for any other purpose. From this point, the writ jurisdiction of the High Court is wider in
scope. But it‘s a fact that ―the law declared by the Supreme Court shall be binding on all Courts

23
See K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1.
24
AIR 1993 All. 57.
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 RULJ (2015) Vol. 1.1

within the territory of India‖25, also the Supreme Court in exercise of its jurisdiction may pass any
decree or make any order which is necessary for providing justice in any matter pending before it.
Generally Environmental law is regulated by specified statues but, in India the Environmental
law jurisprudence has mostly developed through writ jurisdiction. Judicial activism and the
concept of Public Interest Litigation under writ jurisdiction have brought about a mutation in the
procedural jurisdiction and it has played a pivotal role in developing and providing impetus to
environmental jurisprudence with Human Rights approach. The remedy is preferred over torts
action or public nuisance because it is relatively speedy, cheaper and provides direct approach to
the higher judiciary thereby reducing the chances of further appeals. The relaxed rules of locus
standi and evolution and recognition of epistolary jurisdiction by the Supreme Court and High
Courts has further ensured the public participation in matters like environment protection. The
remedy under writ jurisdiction also provides flexibility to the courts The judiciary has been very
cautious in its approach. It has refused to interfere on imaginary apprehensions of environmental
pollution and in those cases where the government has arrived at a decision after considering
relevant facts and application of its mind without any extraneous considerations. However, the
court has always issued directions for strict compliance with Environment Protection Act,
1986.The court has been ensuring the compliance of its orders by granting costs against the
parties for non-compliance. The number of times the court has appointed monitoring committees
to see that the courts order are duly complied with. The Court has also used the affidavits,
commissions, panel of experts and took judicial notice for ascertaining the factual matrix.

CONCLUSION
From the perusal of various judgments, it is evident that the Indian judiciary has used the
potent provisions of the constitutional law to develop a new ―environmental jurisprudence‖. The
courts have not only created public awareness regarding environmental issues but also it has
brought about urgency in executive lethargy, if any, in any particular case involving
environmental issues.

25
supremecourtofindia.nic.in/jurisdiction.htm (last visited 12/1/15).

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 RULJ (2015) Vol. 1.1

REVISITING THE DEBATE ON INDIAN FEDERALISM: A THEORETICAL AND

COMPARATIVE PERSPECTIVE

AMBUJ DIXIT

Federalism is a concept of sharing of power between two governments that the

governments should work in close co-ordination with each other, without imposing the will of
one on the other. U.S Constitution and Australian Constitution are certainly good examples of
such an actual federal scheme of power distribution. Our Constitution is certainly a so-called
example of a federal constitution. But this federal feature of the Constitution of India has been
subjected to a lot of debate, argument and unending litigation. There has always been a doubt in
the mind of the inferior or state governments over the question of federal distribution of powers,
and the case is all the same with various jurists, judges and law practitioners. Though, a lot of
papers and books have been written about this feature of Indian Constitution, and one of them
comes from a well known Indian jurist and former member of the Law Commission of India, P.K
Tripathi. Tripathi in his article „Federalism: A Myth or Reality‟ which was published in the
Journal of Bar Council of India in August 1974 concluded that Indian Constitution is anything
but a federal constitution. The article will try to prove that India is indeed a federalism but with
less powers to the states. This present article will try to analyze the federal structure of the Indian
Constitution by means of a comparative study of the best models of federal constitutions. The
article will also try to analyze the feature in question in light of landmark judgments,
Constitutional provisions, and writings of eminent jurists on the subject and also in the light of
the basic characteristics of a federal distribution of power. This article aims to prove with
reference to aforementioned authorities that Indian Constitution is Centre Oriented Federation as
our Constitution makers have given a blend of federalism to the Constitution while concentrating
the final decision making authority in the Central government.


3rd Year, B.A.LL.B (Constitutional Law Hons.), School of Law, KIIT University, Bhubaneswar .

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1. UNDERSTANDING THE CONCEPTS OF FEDERATION AND UNION

Federalism constitutes a complex government mechanism for governance of a country.
The basic idea behind federalism is to bind into one political union several autonomous units
known as states (in the United States and Australian Constitution) or provinces (as in Canadian
Constitution). It is necessary feature of a federal constitution that it provides independent area of
power utilization to the autonomous units by whatsoever name they are known, and keeps that
area untouched by the supremacy of the Centre, thereby, providing these self autonomous units
their independent areas of legislation, execution and adjudication. The federal principle
according to Professor K.C Wheare is ―the method of dividing powers so that the general and the
regional governments are each, within a sphere, co-ordinate and independent.‖26 They will be co-
ordinate only if they operate, with respect to the matters assigned to them under the constitution,
directly upon the citizens and none of them has to operate through the other or by virtue of the
authorization of the other.27 In State of West Bengal v. Union of India28, Sinha C.J., speaking for
the bench envisaged the following characteristic of a federal constitution:
1. Agreement between independent units: A truly federal form of government envisages a
compact or agreement between independent and sovereign units to surrender partially
their authority in their common interest and vesting it in a Union and retaining the residue
of the authority in the constituent units. Ordinarily each constituent unit has its separate
Constitution by which it is governed in all matters except those surrendered to the Union,
and the Constitution of the Union primarily operates upon the administration of the units.
Our Constitution was not the result of any such compact or agreement.
2. Supremacy of the Constitution: It cannot be altered except by the component units. Our
Constitution is undoubtedly supreme but it is liable to be altered by the Union Parliament
alone and the units have no power to alter it.
3. Distribution of powers: Distribution of powers between the Union and the regional units
each in its sphere coordinate and independent of the other. The basis of such distribution
of power is that in matters of national importance in which a uniform policy is desirable

26
Wheare, K.C., FEDERAL GOVERNMENT, at p. 10, Fourth Edition (1963), Oxford University Press, London.
27
Tripathi, P.K, Federalism: The Reality and the Myth, Journal of The Bar Council of India, Aug. 1974, pg. 258.
28
AIR 1963 SC 1241
23
 RULJ (2015) Vol. 1.1

in the interest of the units, authority is entrusted to the Union, and matters of local
concern remain with the State.
4. Supreme Authority of the Courts: In order to interpret the Constitution and to invalidate
actions against the provisions of the Constitution. A federal Constitution, by its very
nature, consists of checks and balances and must contain provisions for resolving
conflicts between the executive and legislative authority of the Union and the regional
units.
As contradistinguished with the federal constitution, there is the unitary constitution in
which the Central Government is supreme.29 This kind of government may also consist of a local
government, and such government may also be liable to discharge a few functions and may have
some powers but those powers are subject to the whims and caprices of the Union Government.
In a unitary system the central government commonly delegates authority to sub-national units
and channels policy decisions down to them for implementation. A majority of nation-states are
unitary systems. They vary greatly. Great Britain, for example, decentralizes power in practice
though not in constitutional principle. Others grant varying degrees of autonomy to sub-national
units. In France, the classic example of a centralized administrative system, some members of
local government are appointed by the central government, whereas others are elected.30
Thus, from the above two concepts it becomes quite clear that the basic difference between a
federation and a union is that:
A federal government doesn‘t delegates any power to the units and these units are quite
independent and supreme to operate in their own sphere without being subject to any restriction
from the federal government whereas a unitary government delegates power to its constituent
units but they are subordinate to the Union and the exercise of the power depends upon the
directions given by the union.

2. EVOLUTION OF FEDERALISM IN INDIA

There had always been some kind of federal element in the Indian governance, even
during the rule of Mughal Empire or Delhi Sultnate. The kings appointed some local landlords

29
Jain, M.P, INDIAN CONSTITUTIONAL LAW, Lexis Nexis Butterworths Wadhwa, Sixth Edition Reprint, p.527.
30
http://www.britannica.com/EBchecked/topic/615371/unitary-system (Accessed on 25/2/2015).
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who acted as local governments and were answerable to the king only. Later, during the British
rule a systematic blend of parliamentary monarchy and federalism was introduced in India by the
Government of India Act 1858 which appointed Lieutenants for North-West Provinces, Bengal,
Punjab and Burma.31 But of all these the major federal developments were made by the
Government of India Act, 1935, which came with the objective of uniting the Indian States into
federation, but that could not be achieved. For diverse reasons the Indian states never joined the
proposed federation and the part dealing with federation never became effective. 32 The major
failure of the GOI Act 1935 lies in the fact that it had undertaken a task of creating a federal
system for which no historical precedent ever existed. In the history of the concept of federalism
we see there were always some independent states that by their agreement formed a federation.
But the task bestowed upon The Joint Parliamentary Committee was to first create self-
autonomous units and then again give them the independence to operate in their own sphere
without being subject to the control of Governor General in Council, as the provinces were
subject to legislative, adjudicative and executive authority of the British Government.33 The
basic source of Indian federal scheme is also the Government of India Act, 1935 and also the acts
of constitution passed by the British government for Canada and Australia. 34 However, the
Indian Constitution has also made several departures from the Government of India Act 1935.
The departures were made on the points which were not suitable to the contemporary Indian
constitution and also due to which the GOI Act 1935 tasted failure.

3. INDIAN FEDERALISM : A COMPARATIVE STUDY

As they have been called the best models of a federal constitution are the United States of
America and Australia. A comparison between Indian Constitution will show how federal the
constitution of India is. The article will move forward by comparing the basic characteristics of a
federal system of government as given in State of West Bengal v. Union of India.35 The

31
Pylee, M.V, CONSTITUTIONAL HISTORY OF INDIA 1600-2010, S. Chand Publications, p.21.
32
Bakshi, P.M, COMMENTARY ON THE CONSTITUTION OF INDIA: Enlarged Edition, Universal Law
Publishing Co., pp. 17, 18.
33
Basu, D.D, INTRODUCTION TO THE CONSTITUTION OF INDIA, Lexis Nexis Publications, 20th Edition
Reprint 2012, p.54.
34
Sridhar, Madabhushi, Evolution and Philosophy behind the Indian Constitution, For Reference See
http://www.hrdiap.gov.in/87fc/images11/4.pdf (Accessed on 26/02/2015).
35
Supra at 3.
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comparison will focus on three Constitutions namely: The Constitution of the United States of
America; The Constitution of Australia; and The Constitution of India. As the initial and most
prominent modern example of federalism, the United States is often considered as first among
the equals and also the prototype for a model federal constitution36 so this comparative study will
focus more on American federalism but bringing in the Australian constitutional perspective on
federalism as and when needed.

Agreement between independent units

This first characteristic can be divided in two parts; one being the agreement between
constituent units to form a Union and the other being the surrendering of powers to the union. As
is known to all the Constitution of the United States of America was not a document formed by
whims and caprices of some great independence leaders. The Constitution was a product of
year‘s long process of meetings in a confidential room and hours of discussion, as is the Indian
Constitution. Thus, by the virtue of the number of representatives and the duration of debates
both the Indian Constitution and the U.S Constitution are great masterpieces. But what makes the
Constitution of United States more federal in nature was the compulsory ratification of the
Constitution by the states. The adoption of the Constitution was subjected to ratification of at
least Nine out of Thirteen states failing which it could not have been brought into force or let‘s
say even adopted.37 Thus, American federation was a result of a confederate structure coming
into picture and then turning federal. But contrary to it the scenario in India was totally different
as there was never any such agreement between the Indian states and the Union Parliament.
Some of the states willingly joined the Union, some on persuasion of Sardar Patel and some were
forced to join (as in the case of Hyderabad). But amidst all this the State of Jammu & Kashmir
joined the Indian Union under a contract and that contract even got a constitutional status.38 So,
one may definitely say that the relationship between J & K and UOI is federal in nature but
certainly there is no agreement between other Indian states to form a federation.

36
Choudhry, Sujit and Hume, Nathan, Federalism, devolution and secession: from classical to post conflict
federalism, COMPARATIVE CONSTITUTIONAL LAW, Edward Elgar Publication, p. 358.
37
Article 7, United States Constitution.
38
Article 370, The Constitution of India 1950.
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In State of West Bengal v. Union of India the Hon‘ble Supreme Court also opined that the
states must surrender some of their authority to the Union to form a federation and may retain the
residue. While the power of legislation under Article 246(1) read with List I of the 7 th Schedule
of the Constitution may be thought of as the powers which the states have surrendered to the
Union. However, the residue which according to the basic principles of federalism should have
been left with the states to legislate upon also has been surrendered to the Union under Article
248 of the Constitution and also under Article 246(1) read with Entry 97 of the List I of the 7 th
Schedule. However, under the American Constitution all the powers in residue are left at the
discretion of the States and not that of the Union.39 The case is all the same with Australia as
there also all the residuary powers are given to the states and not the Union. 40 Thus, yet again the
Constitution of India makes a departure from the most critically acclaimed models of federal
constitution, thereby strengthening the suspicion of it not being federal. Thus, the first federal
character as enunciated in the case is found missing in the Indian Constitution but is found in the
American Constitution and Australian Constitution.

Supremacy of the Constitution

The Constitution of India is indeed the suprema lex or supreme law of the land. It prevails
over any other law. The Constitution was directly adopted, enacted and given by the people of
India.41 The Constitution is the document which prescribes the powers of all the organs of the
Indian state. However, this feature of a federation demands that the supremacy of the
Constitution cannot be altered or amended except without the authority of the constituent units.
The United States Constitution also proves fit on these criteria as any amendment to the
Constitution cannot be made except with the authority of at least two thirds of the states. 42 In
Australia also the states have the power to influence the alteration of the Constitution.43 Whereas,
under Article 368(1) of the Constitution of India the Parliament is sufficiently empowered to
make any amendments and change the nature and substance of the Constitution subject to the

39
Amendment X (1791), The United States Constitution.
40
Shukla, V.N, CONSTITUTION OF INDIA, Eastern Book Company, 12th Edition (2013), p.803.
41
Preamble, The Constitution of India.
42
Article 5, United States Constitution.
43
Section 128, Constitution of Australia.
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 RULJ (2015) Vol. 1.1

basic structure doctrine.44 The irony is such that the states even for their existence depend upon
the will of the Parliament.45 Though it may seem that proviso to Article 368(2) comes to the
rescue of the states as it mandates ratification of amendments relating to specific clauses and
chapters by one half of the states, hence maintains the federal character of Indian Constitution.
However, if we really examine the scope of these amending powers given to the states we will
learn that these powers are just in words and mean nothing, for example we may examine a few
provisions mentioned in the proviso to article 368(2). Article 54 and 55 are the very first articles
mentioned in the proviso relating to the appointment of President of India and the manner of his
election respectively. But this power means nothing as the President howsoever appointed by the
states has to work in accordance with the aid and advice of the Council of Ministers. 46 Thus, it
stands proved that the states may have a bit of say in amendment of the Constitution but still
these powers are not up to the federal standards as set by the United States Constitution, so we
should conclude that albeit the constitution of India satisfies this character of federalism, still it is
far behind in being a true federation and obviously not a distinguished federation as that of
United States or Australia.

Distribution of powers
This character of a federal Constitution is certainly the most debated feature of the Indian
Constitution and as this is the most important aspect of a federal Constitution so this feature must
be dealt under two distinct heads, the first one being, Distribution of Legislative Power. General
Legislative powers of the States and the Parliament are dealt with in Article 245 and 246 which
deals with extent of legislative powers of the union and the state and subject matters of the union
and the state laws respectively. Article 246 make it clear that the law making power of the states
is restricted to matters enumerated in the state list i.e. List II Schedule 7 and concurrent list i.e.
List III Schedule 7. But the concurrent lawmaking powers of the state legislature is subject to
Article 254, that means Parliament can easily overrule any law made by state legislatures
whereas the Parliament may even make laws over the matters enumerated in state list if it feels

44
Keshavnanda Bharati v. State of Kerala, AIR 1973 SC 1461.
45
Article 2 and Article 3, The Constitution of India 1950.
46
Article 74, The Constitution of India 1950.
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 RULJ (2015) Vol. 1.1

that it is necessary in the national interest to do so.47 Also, the Parliament may make laws on
state matters under Article 353 and 356 if an Emergency is declared under Article 352 or a
state‘s constitutional machinery has been declared as failed under Article 356 respectively.
Under Indian Constitution the Executive Power of the States extends to the subjects on which
State Legislature is empowered to make laws.48 This power in its very substance is subordinate
to the Union as already proved above the power of state legislatures to make law is subordinate
to the Union. Moreover, the Executive power of the state is further restricted by the proviso to
Article 162 as it is subject to the executive power of the Union and legislative power of the
Parliament. However, under the United States Constitution as already shown the powers of the
Federal government are restricted to those mentioned in the Constitution and the residue is upon
the states to legislate. Thus, yet again the Indian Constitution proves to be less federal in nature
when the question of distribution of powers is considered.

Supreme Authority of the Courts

Though, the Indian Constitution is weak in other federal characters but when comes the
question of the supremacy of the courts, it is always answered in positive. Just like in United
States where it was in the case of Marbury v. Madison49 the doctrine of judicial review was
given thereby declaring the supremacy of the Supreme Court, in India also the power of judicial
review as given under Article 32 is an important and integral part of the basic structure of the
Constitution and no Act of Parliament can abrogate it or take it away.50 Thus, the Constitution
very well satisfies this necessary feature of a federation.

4. FEDERAL SHARING OF POWERS BETWEEN THE INDIAN UNION AND THE STATE OF
JAMMU & KASHMIR
Irrespective of the defaults that we tend to find in our federal structure, there is one area in
which the Constitution is totally federal. Article 370 of the Constitution of India declares that no
law relating to the State of Jammu & Kashmir can be made by the Parliament except without the

47
Article 249, The Constitution of India 1950.
48
Article 162, The Constitution of India 1950.
49
5 U.S. 137 (1803).
50
I.R Coelho v. State of Tamil Nadu, AIR 2007 SC 861.

29
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prior consultation to the state government and reference to the document of accession. The state
also does not depends upon the Parliament or the Union for its continued existence, for any such
purpose a Constituent Assembly of the state must be convened. The state of J&K is independent
in its sphere to make laws relating to its territory. There exists an agreement between Union of
India and the State of J&K. Thus, the relationship that our Constitution creates between the state
of Jammu & Kashmir and the Union is federal in all its aspects and the powers of the State are
independent of the Union. This relationship satisfies the model of federation as envisaged under
the United States Constitution.

CONCLUSION: IS INDIAN CONSTITUTION REALLY FEDERAL

In light of the above study we must conclude that though India is not truly federal in
nature, but this cannot be denied that some federal characteristics do exist which distinguish us
from a unitary polity. Several names have been given to the Indian political structure since due
course of time such as ―constitution with a unitary bias‖ or ―quasi federal‖ etc. But in my opinion
it should be called ―Centre oriented federation‖ as it cannot be in any way termed as Unitary.
The term unitary denotes that all the power rests with the centre. However, in Indian system the
power is not vested just with the centre. The states are given their due status, even where the
states are not given direct say their representatives in the Council of States do have a say in all
the matter ranging from declaration of Emergency to Constitutional Amendments. Moreover, the
executive power of the Union to promulgate ordinances under Article 123 is also subject to
approval by Parliament and the Parliament means both the houses. Under Article 80 the
members of the Council of States are chosen by the state legislatures by means of proportional
representation in form of single transferable vote. Thus, indeed the states do not have much say
in the working of the Union or Parliament directly, but they do have representation by means of
the elected members from states just like Article 3 of the United States Constitution. One may
assume that after partition the makers of the Constitution gave extraordinary powers to the
Centre but they were aware of the difficulty which may arise and that is why they envisaged a
unique method of checks and balances. Thus, it is argued that India is a ―Centre oriented
federation‖ as it possesses the qualities to qualify as a model of federalism and characteristics of
federalism are not totally absent. The Indian constitution presents a unique model of a federal

30
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constitution for the first time in the world‘s political history and represents the real will of “We
the People” to empower the states and maintaining the Union as the real sovereign.

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WRITTEN CONSTITUTION AS A LIMITATION:

COMPARATIVE STUDY BETWEEN U.S.A. AND INDIA

KARAN GEHLOT

The motive forces, which led to adoption of a written constitution, have varied in
different parts of the world, the basic assumption underlying them broadly in the same (being
derived from the American Constitution), namely, that a written Constitution is a legal
instrument which sets up and limits the powers and functions of the different organs of the state.
Since the organs of the state, including the legislature or ordinary law making body itself are this
set up by the constitution, it is natural to regard the written constitution as a higher law with
reference to which the powers of the different branches of the body politic have to be tested or
circumscribed.

1. UNWRITTEN CONSTITUTION

Under an unwritten Constitution, such as that of England rules of constitutional law at best
operate as rules of ―constitutional morality‖51 or usage because they are not enforceable by the
courts like other laws. A court or lawyer would have nothing to do with the rules of morality,
whether founded on the unwritten constitution or usage or otherwise. It follows, there is no legal
limitation to the sovereignty of the legislature even though a Parliament may not, in practice
intend to violate these rules of constitutional morality. In other words of Dicey: 52
“A modern judge would never listen to a barrister who argued that an Act of
Parliament was invalid because it was immoral or because it went beyond the
limits of Parliamentary Authority.”

“If a legislature decided that all blue-eyed babies should be murdered, the
preservation of blue-eyed babies would be illegal, but the legislatures must go
mad before they could pass such law.”53


B.B.A. LL.B. (Hons.), ITM UNIVERSITY, GURGAON.
51
Maitland, Constitutional History of England, p.398.
52
Dicey (10th EDITION), p.63.
53
Leslie Stephen‘s Science of Ethics, quoted in Dicey (10th Edn.), p. 81.
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2. WRITTEN CONSTITUTION
Since the powers of all organs of the State are defined by the Constitution, it follows that
under a written constitution, no organ or branch of the government can claim omnipotence of
sovereignty in English sense. Under a written constitution, all the organs are non-sovereign. It
means that none of them can exercise unlimited power, but it is limited and restrained by
superior law and that if any of those constitutional limits are transgressed, the relevant act of the
government whether executive, legislative or judicial, shall be ultra vires or unconstitutional. It is
because in absence of any arbitrary power in the body politic, which is governed and restrained
by higher law, that Americans call their political system as a government of laws and not men.
The Privy Council establishes two prepositions:
a) That in the absence of any constitutional limitations, the law making or legislative organ of a
State possesses the plenary power of making any laws, substantive or procedural, unfettered by
any restriction which is called by Dicey legal ‗sovereignty‘.54 Hence, even when there is written
constitution, but the constitution does not impose any limitation, prohibition or restriction as to a
particular matter, the legislative authority of the legislature to deal with that matter that cannot be
questioned in any manner.
b) Where, however there is written constitution and that constitution provides that the legislature
must not do a particular thing or can do it only in the manner prescribed by that constitution, the
legislature cannot transgress that limitation, if it does, its act must be void.

3. KIND OF LIMITATIONS
Different kinds of limitations may be imposed upon the organs of the State by a written
constitution by creating them:
An overall limitation may be imposed (substantive as well as procedural) in the matter of
amending the constitution itself. Limitations may be imposed upon all the organs of the State by
guaranteeing certain rights of the individual in a Bill of Rights or list of fundamental rights,
which, when violated would render the relevant state act null and void. Limitations may be
imposed upon the legislative body in the matter of enacting ordinary legislation.
Such limitation may be:

54
Kilbourn v. Thompson, (1880) 103 US 168 (199).
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 Procedural, i.e., as to the mode of making a law. Such limitation may exist not only in
federal but also in unitary constitutions.
 Substantive, i.e., as to the subject matter regarding which a law may be made, such
limitation exist in federal constitutions which distribute legislative powers between the
federal and State Legislature.
Since the States are territorial units, the jurisdictions of the various States Legislatures,
under a Federal Constitution are also limited within their respective territories. Substantive or
procedural limitation may also be imposed upon the various organ of the State by other
mandatory provisions of the constitution, which stand apart from the fundamental rights or the
distribution of legislative powers. Such provisions either exclude certain matters (other than
human rights) from the powers of the Legislature or other specified organ, or subject it to certain
restrictions.
The essence of different kinds of limitations as aforesaid is the same, namely, that
provision of the constitution, in regard to these entrenched or excluded matters are intended to be
mandatory or legally binding as limitation upon the Legislature (or some other organ which is
sought to be limited by the provision concerned).

4. AN ANALYSIS OF THESE DIFFERENT KINDS OF LIMITATIONS UPON A

COMPARATIVE LEVEL

Procedural Requirements Regarding Ordinary Legislation

The constitution may lay down a procedural requirement not only regarding process the
process of amendment of the constitution itself but also as regards ordinary legislation.55
Presently in this sphere, a distinction is usually made between the irregularity or
unconstitutionality.56 Where it is regarded as mandatory condition precedent to making the law
its breach would be regarded as an illegality or unconstitutionality. Otherwise a procedural
irregularity is usually regarded as not affecting the validity of the legislation itself.
This may illustrated with reference to constitutional provision requiring a special
procedure for the passage of Bill. Can the validity of enactment be challenged before the court

55
Vide Arts. 107-117, 196-207 of the Indian Constitution, Art.I ss 7-10 of the Constitution of U.S.A.
56
Ref. No. 1 of 1964, AIR 1965 SC 745 (para.62).
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on the ground that the requirement of the relevant constitution provision was not complied with
and consequently the statute though passed by the legislature was void?
1) U.S.A.: A similar view has been taken in the U.S.A. Though it is acknowledge that the
Legislature has power to describe its own procedure, it cannot while regulating its proceedings or
in making rules in that behalf, ―ignore constitutional restrains.57‖ Hence, though ordinarily a
court would not invalidate an Act of Congress on the ground of any defect in procedure or look
into the journals of the Houses to determine whether an Act which has been signed by the
presiding officers of the two Houses and by the President has been duly passed58, it will interfere
if some constitutional provisions going to the root of the power of the Legislature to make the
law has been violated e.g. when a Bill, relating to a revenue measure, has been passed without
originating in the House of representatives, or where a Bill has been passed without the special
majority required by the Constitution.59
The power to interpret the constitutional requirement to determine whether it has been violated,
of course, belongs to the court.
2) INDIA: In India, there is a specific constitutional provision {Arts. 122(1), 212(1)}, barring the
jurisdiction of a call in question any proceedings on Parliament (or a State Legislature) ―on the
ground of any alleged irregularity.‖ Notwithstanding such barring provisions, however, the court
has held that it does not prevent the court from inquiring whether the Legislature in question had
the power or competence to do that thing under the Constitution from which it derives its power,
e.g., where the Bill had been passed by a Legislature which had not been properly summoned
{Arts. 85(1), 174(1).}60
But before invalidating a law on the ground of a procedural provision of the constitution, the
court has to interpret the provision in question and determine whether it would hold the provision
to be mandatory or directory.
A. It will be interpreted as mandatory if the requirement of that provision goes to the root of the
jurisdiction or power of the legislature to act under the Constitution.61 In this case the court will

57
U.S. v. Ballin, (1982) 144 US 1 (5).
58
Flint v. Stone Tracy Co., (1991) 220 US 107.
59
U.S. v. Smith (1932) 286 US 6.
60
Cf. Powell v. McCormack, (1969) 395 US 486.
61
Cf. Sharma v. Sri Krishna (II), AIR 1960 SC 1186 (1190).
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invalidate the statute, which has been passed in violation of the mandatory requirement of the
constitution.
B. On the other hand many, of the procedural provision of the Constitution have been held to be
director, so that their violation would not render invalid the resultant act of the legislature. The
principle upon which the court has determined such a provisions to be directory is that they
merely regulate the manner of exercise of the jurisdiction of the legislature and not the existence
of the jurisdiction itself. There is specific provision in our Constitution-Art. 255, which render
some of the other procedural provisions directory.62

Limitations Arising From Constitutional Distribution Of Legislative Powers

The Constitution of U.S.A. makes the division of the powers between the federation and
states by provision of four classes:
I. The Federal Congress has no general powers to make laws for the people it has got only
enumerated powers. These powers are enumerated in Art. I, s. 8, e.g. to declare war, raise armies,
coin money, regulate foreign commerce. The 10th amendment makes it clear ―the powers not
delegated to the United States by the Constitution, nor prohibited by it to the State, are reserved
to the States respectively, or people.63
II. Though all powers not expressly given to the Union were reserved to the States (10th
Amendment), the Constitution at the same time imposed certain limitations upon the exercise of
those reserved powers so that their exercise might not interfere with the exercise of the powers
conferred upon the National Government.
III. There is no concurrent List in the American Constitution. Nevertheless, a concurrent sphere
has resulted from the judicial interpretation there is a sphere where a state can legislate so long as
congress does not occupy the field or the state legislation does not conflict with a federal
legislation.64
As in the United States, the Commonwealth Parliament (of Australia) has only enumerated or
selected legislative powers and no general power65 to make laws for the peace, order and good

62
Manglore Bedi Works v. State of Mysore, AIR 1963 SC 589 (para. 5).
63
Gibbons v. Ogden, (1942) 9 Wh 195.
64
O Sullivan v. Noarlunga Meat Ltd., (1956) 3 ALL ER 177.
65
Melbourne Corporation v. Commonwealth, (1974) 74 CLR 31 (47).
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government of the people as the Canadian Parliament has. The enumeration is not double, only
the powers of Commonwealth Parliament are enumerated.

India: Distribution System In Three-Fold

The system of distribution of legislative power between the Union and State Legislature
under the Indian Constitution is unique in so far as enumeration of subjects in the 7th schedule is
three-fold-list I specifies the exclusive powers of the Union Legislatures, List II similarly gives
an exclusive jurisdiction to a State Legislature over the subject enumerated in that list III , on the
other hand, specifies certain subject as concurrent .
Several outstanding features mark this system:
 By enumerating as many as 211 subjects in 3 lists, it aims at exhaustion, in order to
minimize litigation over conflict of jurisdiction between the union parliament and a state
legislature.
 Secondly, wherever any conflict could be anticipated, the institution has given pre
dominance to the union jurisdiction, so as to give the federal system as a strong central
bias. Thus:
i. In case of overlapping of a matter as between the three list, pre dominance as being
given to the union legislature, as under the government of India Act, 1935. Thus the
power of state legislature to legislate with respect to the matter enumerated in the
state list has been made subject to the power of the union parliament to legislate in
respect of matter enumerated in the union and concurrent list, and the entries in the
state list have to be interpreted accordingly.
ii. In the concurrent sphere, in case of repugnancy between union and a state law
relating to the same subject, former prevails. If however, the state law was reserved
for the assent of the president and has received such assent, the state law may
prevails not withstanding such repugnancy but it would still competent for
parliament to over ride such state law by subsequent legislation (Art.254 (2)66.
iii. The vesting of residual power under the constitution follows the precedent of
Canada, for it‘s given to the union instead of the states. The constitution of India vest

66
Zverbhai v. State of Bombay AIR 1954 SC 752.
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the residuary power, i.e., the power of legislated with respect to any matter not
enumerated in any one of the three list,- in the union legislature [Art 248]67, and the
final determination as to whether a particular matter falls under the residuary power
or not is that of the courts.
 Thirdly, even part from the central bias in the foregoing normal distribution of powers,
there are certain extra ordinarily provision in the Indian constitution which provide for
expansion of the federal power in cases of emergency or other pre dominating national
interest, instead of leaving it to be judicial interpretation as in the USA, Australia or
Canada, as we have noticed. These provision, therefore, constitute additional limitation
upon the power of the state legislature. This exceptional circumstances are –
i. ―In the national interest. A law made by parliament, which parliament would not
but for the passing of such resolution have been competent to make, shall, to the
period of six months after the resolution has ceased to be in forced except as
respect thing done or omitted to be done before the expiration of the said period
[Art .249]. The resolution of the counsel of the state renewed for a period of one
year at a time.‖
ii. Under a proclamation of Emergency, while a proclamation of ‗Emergency‘ made
by the president is in operation, parliament shall have similar power to legislate
with respect to state subject [Art. 353(b) ].A law made by parliament, which
parliament would not but for the issue of such proclamation have been competent
to make, shall, to the extent of incompetency, cease to have effect on the
expiration of a period of a six month after the proclamation has ceased to operate,
except as respect things done or omitted to be done before the expiration of said
period[Art. 250].
iii. By agreement between the state. If the legislature of two or more state resolves
that it shall be lawful for parliament to make laws with respect in any matter
included in the state list relating to those states, parliament shall have such power
as regards such state. It shall also be open to any other state to adopt such union

67
Zaverbhai v. State of Bombay, AIR 1954 SC 752.
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legislation in relation to union itself by the resolution passed in that behalf in the
legislature of the state. In short this is an extension of the jurisdiction of union
parliament by consent of the state legislature [Art. 252].68

5. IMPLIED LIMITATION

Judicial Interpretation
It constituted by express provision of the constitution i.e., the bill of rights , the
distribution of under federal constitution or other specific provision which curb the power of
legislature to deal with particular subject which could otherwise have been dealt with it.
It shall deal other with other limitation which are not be found expressly mention in the text
of the constitution but have yet be acknowledged to constitute imitation not only upon the
legislature but also upon the executive and the judiciary, as if they had been laid down in the
constitution itself. Before proceeding to take up such implied limitation in particular, we should
refer to the process in which such implied limitation had their origin.
The first thing to be noted is that such implied limitations have been judicially evolved.
But we have already seen that when a written constitution is adopted, the court cannot refer to
extraneous material either as a source of constitutional power or limitation except by way of
interpretation of the express provision of the constitution. The USA and India that the court
cannot draw any power or limitation from any supposed ―spirit of the constitution‖.
How could then a court assume a power to add implied limitation to the express provision
of the written constitution?
The court power lies to interpret the express provision. In those countries which treat its
written constitution as a legal instrument, the function of interpreting the constitution, as in case
of other legal instrument,(like Deeds, indentures, testaments), belongs exclusively to the court. In
India, this is enjoining by the constitution itself, - by Art. 367. Once it is acknowledge, it
becomes the function and duty of its constitutional court or courts to determine whether any
action of any branch of Government has transgressed the limits imposed upon it by the
constitution, as interpreted by the Court itself.

68
UOI v. Basaviah AIR 1972 SC 1415.
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Scope For Implication

More controversial is the scope for the Judges to add to the contents of a written
Constitution by the judicial process of implication.
I. We have seen that a court is entitled through its process of interpretation of an express
provision to include within its ambit, which may held to have been included in it by necessary
implication. An express limitation by way of a fundamental right may be amplified by this
process to include some unremunerated right, which may be said to be an integral part of
enumerated right.
II. But there are certain doctrines, which the courts in various countries have evolved not out of
any express constitutional limitation, but upon a reading of several provisions or their scheme as
a whole. This process is markedly reflected, in the evolution of the doctrine of Separation of
Powers and corollaries emanating from it, such as doctrine against delegation of constitional
functions, deference of one organ for the practice of the other organs and the like which are
judicially acknowledged as constitutional limitations in addition to those expressly provided in
the written Constitution.

6. LIMITATAION ON THE EXECUTIVE

I. The function of the executive being to execute laws it cannot assume the power of making
laws, which function belongs to the legislature.69
II. THE Executive cannot make even subordinate legislation, such as rules or regulations, unless
authorized by legislature itself, within the constitutionality permissible limits of delegation. 70
III. Arbitrary action on the part of the Executive is checked by the judiciary applying the
principle of rule of law, namely, that any act of the Executive which interferes with the liberties
of an individual would be illegal and void if it is not authorized by the Constitution or by a law
made by the Legislature or by some authority empowered by Parliament in this behalf. This
limitation obtains in all democratic countries, irrespective of the nature of the Constitution, such
as the U.K, U.S.A, India. IV. It is the duty of the Executive, to enforce judgments of competent
courts and not to defy them.

69
Youngstown v. Sawyer 1952, 343 US 579.
70
U.S. v. Eaton 1982, 144 US 677.
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In the Steel Seizure Case, - in December, 1951, in order to avert a nation-wide strike in
the Steel Industry, President Truman issued an executive order (not backed by any law) to seize
and continue the operation of the steel mills, on the ground that the strike would seriously
jeopardies the national defense as American troops were then fighting in Korea.
The question brought before the court was whether the order, which amounted to a legislative
act, could be issued by the President in exercise of his executive power under Art. II, s.1 (1) or of
his power as ‗Commander-in-Chief‘ [Art. II, s(1)] Prima facie, the Constitution itself did not
impose any limits to the aforesaid powers of the President.
Nevertheless, the court held that under no situation could the President claim to exercise a
legislative function, which had been vested by the Constitution in the Congress, because of the
doctrine of Separation of Powers. DOUGLAS, J., in his concurring opinion, observed:
 ―The doctrine of separation of powers was adopted by the Convention of 1787...to
preclude the exercise of arbitrary power. The purpose was not to avoid friction, but by
means of...friction incident to the distribution of the governmental powers among three
departments, to save the people from autocracy”71

The court held that seizure of property was a legislative function under Art. I, when read
with the Fifth Amendment, according to which no person can be deprived of his property
―without due process of law‖. Hence, the President cannot, even in war emergency, seize
property without the authority of law or otherwise then in accordance with the procedure lay
down by law.
Even those powers which are vested in the President by the Constitution are subjected to
the ―necessary‖ law making power of Congress, by Art I, s.8(18), to make laws which shall be
necessary for carrying into execution...all other powers vested by this Constitution in the
Government of the United States. Of course in emergent circumstances, the President may take
action in anticipation of legislative sanction; but where in the Steel Seizure case, the Congress
had already occupied the field, by enacting laws as to how property might be seized in

71
Fischery v. Sec. of State (1808) 22 MAD 270.
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emergencies, the President could not override that statutory procedure, in the purported exercise
of an inherent power.72
Any restraint on publication would violate the First Amendment, Freedom of Expression.
The court, in the exercise of its judicial power, issue an injunction to restrain a publication but
only on the Executive, satisfying the court that the disclosure of any such information ―will
surely result in direct, immediate, and irreparable damage to our nation or its people.‖ The
Executive cannot assume any power, which is vested in the Congress or the courts.
As to the power of Congress, in this behalf, it was observed:
“Undoubtedly, Congress has the power to enact specific and appropriate
criminal laws to protect government property and preserve government secrets. It
would, however, be utterly inconsistent with the concept of Separation of Powers
for this court... To prevent behavior that Congress has specifically declined to
prohibit... The Constitution... did not provide for government by injunction in
which the courts and the Executive branch, “make law” without regard to the
action of Congress.”73

7. LIMITATION ON LEGISLATURE

Like the application of the doctrine of Separation of Powers in the U.S.A. in relation to the
Executive organ. It is similarly applicable to other organs. Since it is not possible to exhaust all
its ramifications within this short compass, we can refer only to its broad principles in relation to
the Legislature:
I. The Legislature cannot make any law interfering with the exercise of the President those
executive powers which are vested by the Constitution in the President, example-
(a) Conduct of military operations or of foreign affairs.74
(b) The power to appoint ―all officers of the United States‖ whose appointment is not
otherwise provided for in the Constitution (Art. II s.2 (2).75

72
Youngstown v. Sawyer 1952, 343 UDS 579.
73
N.Y. Times v. U.S. (1971) 403 US 713.
74
Cf. Luther v. Borden (1849) 7 How 1.
75
Buckley v. Valeo, (1976) 424 US 1.
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(c) It follows that unless a power of appointment has been granted to Congress by the
Constitution, Congress cannot engraft executive duties or powers upon officers of
the Legislature, as distinguished from appointees of the Executive.
II. In the recent case of Chadha76, a majority of the American Supreme Court (7:2) has held
that by Art. I, s.1, the legislative power has been vested in Congress, composed of two
Houses, and that this power was to be exercised in the manner laid down in the other
provisions of the Constitution. Thus, under S.7 of Art. I, the legislative power was to be
exercised by means of a Bill, passed by both Houses, and assented to by the President.
The President had a power of Veto, which again, could be overcome by Congress in the
specified manner. Any attempt to short circuit this procedure by Congress, would be to
override the principle of separation of powers. Hence an executive decision, even though
it had been made in exercise of power delegated by Congress itself, could be altered only
by making a law passed by both Houses and assented to by the President and not by
resolutions by either of both Houses, otherwise than what is required by Art .I s.7(2-3).
Consequently, where this result was provided for by a provision in a Statute made by
Congress, such provision itself would be unconstitutional as offending the principle of
separation of powers, by which a balance was sought to be achieved by the framers of the
Constitution between the executive and legislative powers.
III. The function of the Legislature is to make laws or general rules applicable to public in
general and not to decide particular cases, by making ad hoc legislation or a bill of
attainder. The Indian Parliament, to illustrate, cannot direct that an accused in a pending
case, be acquitted or that a suit shall stand decreed.77
IV. It follows that the Legislature cannot pass judgments and, consequently, cannot directly
override a judicial decision.
In short, while exercising its legislative power, the Legislature cannot violate either the
Constitutional powers of the Executive or of the courts, to decide a cause in a particular way.

76
Statesman Calcutta dated 28-7-1983.
77
Loan Assocn v. Topeka 1875.
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India
The Indian Constitution differs from the American and Australian Constitutions, in so far
as there is no attempt at any express introduction of the doctrine of Separation of Powers by
vesting the executive, legislative and judicial powers in different organs. Of course, our
Constitution vests the executive powers in the President (Art. 53(1)) but there is no
corresponding ―vesting‖ provision as regards the legislative and judicial powers. From this, it is
evident that the framers didn‘t intend to introduce any rigid application of the doctrine of
Separation of Powers into our Constitution as would tend to divide them into watertight
compartments. As we shall see just now, at least as between the Legislature and the Judiciary,
there is no such rigid Separation of Powers under our Constitution as debars the American
Legislature to ―set aside judgments of courts‖, compel them to grant new trials, order the
discharge of offenders or direct what steps shall be taken in the progress of a judicial inquiry; or
as between the judiciary and the Executive, in the matter of appointment, transfer and the like.78
Nevertheless, whatever doubt might have existed at the time of early case of the Delhi
Laws Act References, the essence of the doctrine of Separation of Powers between the
Legislature, Executive and the Judiciary, has been placed on the highest pedestal in the Full
Bench decision in the Keshavananda Case, by some of the Judges ascertain that it is one of the
basic or essential features of the Constitution which cannot be taken away even by exercising the
power of Constitutional Amendment vested by Art. 368 of the Constitution.
Of course, the doctrine has been imported into India, not in the original American sense of
preventing the Union of different kinds of powers in the same hands. The Constitution itself
deviates from that sense by placing the legislative powers in the hands of the Executive,
example, to make Ordinances (Art.123,213) or of the Union Executive to legislate for a State
during Emergency (Art.357(a)). Hence it would not be legitimate to contend that to extent the
Ordinance making power into the sphere of life and liberty under Art.21 would destroy the basic
structure of the Constitution.79
The process by which the principle of Separation of Powers has been imported into India
has been two fold:

78
Gupta v. UOI, AIR 1982 SC 149.
79
Kesavananda v. State of Kerala, AIR 1973 SC 1461.
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Firstly, it has been held that the Constitution being written, any power claimed by any
organ of the State must be found from the provision of the Constitution itself.
Secondly, once it is ascertained that the Constitution intends that a particular function shall be
discharged by a specific organ, it would be a violation of the Constitution if another organ
attempts to assume that function or power.
Of course, a distinction has been made between the essential and non-essential or ancillary
powers of each organ and it is only when the essential functions of one organ are usurped by
another that there shall be a breach of Constitution. This distinction has been made even in the
U.S.A., which strictly adheres to the doctrine of Separation of Powers. It is founded on the
obvious reason, that under modern conditions of government dealing with complicated problems,
it is not possible to separate the three departments of administration into watertight
compartments. While exercising its proper function, one organ may necessarily have to
incidentally assume or encroach upon the functions belonging to another organ, without a breach
of the principle if Separation of Powers. For instance, though investigation partakes of a judicial
nature, this power may be exercised by the Legislature when necessary for effectively exercising
its legislative function or by administrative or executive bodies, while exercising their power to
execute a statute. On the same principle, it is constitutionally permissible for the courts to make
rules regulating procedure, which are legislative in nature.
In the Delhi Laws Act case, it was pointed out that though the functions (other than the
executive) were not vested in particular bodies, the Constitution, being a written one, the power
and the functions of each must be found in the Constitution itself. Thus, subject to exceptional
provisions like Arts. 123, 213, 239B (power to make ordinances during the recess of Legislature)
and Art. 357 (exercise of legislative powers by president in case of breakdown of constitutional
machinery in the States), it is evident that the constitution intends that powers legislation shall be
exercised exclusively by Legislature created by the constitutions, i.e., by the parliament in the
case of Union.
As expressed by Mahajan, J., as regards the judicial power thus:
“The Constitution trusts to the judgment of the body constituted in the manner
indicated in the Constitution and to exercise of its discretion by the following
procedure prescribed therein. On the same principle the judges are not allow to
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surrender their judgment to others. It is they alone who are trusted with decision
of a case. They can, however, delegate ancillary powers to others, for instance, in
a suit for accounts and in a dissolution of partnership, commissioners can be
entrusted with powers authorizing them to give decision on points of difference
between parties as to items of account.”
The majority of Supreme Court proceeded to this conclusion upon the ordinary rule of statutory
construction:
“If a statute directs certain acts to be done in a specified manner by certain
persons, their performance in any other manner than that specified or by any
other person than is there named is impliedly prohibited.”80
Thus, notwithstanding the refusal of the framers of our Constitution to introduce a rigid
separation of powers in the Constitution, there is a differentiation of functions between
Executive, Legislature and Judiciary and that no organ can constitutionally assume the powers
that essentially belong to another organ, has come to be confirmed by the observations of the
Supreme Court in the Delhi Laws Act case, and thereafter.81 But, since the doctrine of Separation
of Powers has not been imported into India to the same extent as in the U.S.A., in view of special
features of the Indian Constitution, it would be necessary to point out broad differences in
approach, under various issues:

Pre-Constitution India
Since the constitutional set up in India under the Government of India Act, 1935 was
similar to that in Canada or Australia, it was natural for judges of our Federal Court to look at
vires alone and hold that if a matter was within the legislative competence of a Legislature, it
could enact a law, validating an illegal administrative act or subordinate legislation, with
retrospective effect.

Post-Constitution India
The foregoing principle has been applied by the Supreme Court in a number of decisions,
but it seems that the court is still wavering between the two propositions—

80
Crawford, Statutory Construction, p. 334.
81
Ram Jawaya v. State of Punjab, (1995) 2 SCR 225 (236).
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(a) The Legislature cannot directly nullify a decision; but

(b) It can amend the law retrospectively so as to declare what the law shall be deemed to
have been, so as to render ineffective the decision which would otherwise have been
binding as the final pronouncement of the court.
The niceties of the interplay between the two propositions may be illustrated with reference to
the Chhindwara case:
In 1963an increase in the rate of local cess was struck down by the Supreme Court on the ground
that it contravened Art. 277 of the Constitution. In 1964, the state Legislature made an act to
validate such increase, by providing as follows:
“Notwithstanding anything contained in any judgment, cesses imposed, assessed
on collected by the board of pursuance of the notifications specified in the
schedule shall, for all purposes, be deemed to be, and to have always been,
validly imposed.”
The court struck down this provision on the ground that it was a direct attempt to overrule or set
aside the judgment of the court, which was beyond the competence of any legislature in India:
“It is not open to the Legislature to say that a judgment of a Court properly
constitute and rendered in exercise of its power in a matter brought before it shall
be deemed to be ineffective and the interpretation of the law shall be otherwise
than as declared by the court.”
The court also observed:
“It is open to Legislature within certain limits to amend the provision of an Act retrospectively
and to declare what the law shall be deemed to have been ...” Though this latter proposition has
been established by a plethora of age-old decisions, the Author is constrained to enter his caveat
against its importation into constitutional sphere, since all these decision rest on the assumption
that a ‗sovereign Legislature ‗ is competent to enact retrospective legislation to the same extent
as prospective legislation.

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CONCLUSION
The blunder is that in post-Constitution India, the legislature is not, in fact, sovereign, but
is limited by the fundamental rights and other mandatory limitations imposed by the
Constitution. The question is, if a law which prospectively overrides these limitations would be
void [Art. 13(2)], can the Legislature retrospectively enact that, even where the court has
invalidated a law on the ground that it has violated a Fundamental Right, that statute or anything
done there under shall be valid, notwithstanding anything held by the highest tribunal of the
land?
It cannot be overlooked that by and by the Supreme Court has been obliged to acknowledge that
the Legislature cannot make a law retrospective where such retroactivity would take away vested
rights guaranteed by fundamental rights, e.g., Art. 14, 19 or 31(2).
The query is-why should not the court strike down a validating Act as unreasonable within the
purview of Cls. (2)-(6) of Art. 19 where it seeks to revive a law which has been struck down by
the court as violate of a constitutional limitation?
If the American precedents be instructive in India on this point, as it should, the answer is clear
enough, because if a judgment of court be revised, overturned or modified by another organ of
the State, there would not only be a violation of the doctrine of Separation of Powers, but also
violation of the guarantee of Due Process in as much, as it would take away vested private rights
which had been created by the judgment, unless the Constitution itself authorizes the subsequent
legislation.
In my view, when a validating Act seeks to validate an Act which had been held void by a
competent court on the ground of contravention of a fundamental rights the validating Act
directly offends Art. 13(2). Secondly, now that the spirit of ‗due process ‗has been instilled into
the ‗reasonableness‘ concept in Cls. (2)-(6) of Art. 19 it should be held that a validating Act of
the aforesaid description category would constitute an unreasonable restriction upon the affected
individuals‘ fundamental rights.

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RELIGIOUS CONVERSIONS VERSUS RIGHT TO FREEDOM OF

RELIGION

KUSH KALRA
Religious change has turned into the subject of energetic open deliberation in
contemporary India. From the early twentieth century onwards, it has surfaced over and over in
the political domain, in the media and in the courts. Amid the last few decades the question has
accomplished another peak in the plenty of daily papers, diaries, and books whose pages have
been committed to the inquiry of conversions in India. There is no all around satisfactory
definition in respect to what precisely "religion" is. There has all the earmarks of being close
unanimity that religion, for the most part, is a conviction or confidence in the presence of a
Supernatural Being and the statutes which individuals take after for accomplishing salvation.

1. MEANING OF RELIGION
Religion may be viewed as conviction and examples of practices by which human attempt
to manage what they see as essential issues that can not be illuminated through the application of
known innovations and strategies of association. To defeat these impediments individuals turn to
the control of powerful creatures and forces.
Each individual has a regular qualification of religious confidence and opportunity of still,
small voice, a privilege to receive or relinquished any confidence he could call his own decision.
In this sense flexibility of religion and opportunity of inner voice is basic right both intrinsically
and traditionally. The flexibility of religion and opportunity of soul has been perceived under the
global law. The General Assembly of united countries received without disagreeing vote on tenth
December,1948 the Universal Declaration on Human Rights perceiving truth that the whole
mankind appreciates certain alienable rights which constitute the establishment of flexibility,
equity and piece on the planet.
With a specific end goal to offer impact to the Universal Declaration of human rights the
parts of the united countries of likewise received the two traditions in 1966 in this worry:-


B.A. LL.B (Hons.) National Law University, Delhi.
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1. Universal Covenant on Economic, Social and Cultural Rights.

2. Universal contract on Civil and Political rights.
The Government of India by its presentation dated 10.4.1979 had acknowledged Universal
Declaration of Human Rights and the two worldwide agreements with specific reservations
which don't cover the privilege to flexibility of religion. It has likewise been expressed in the
Constitution of India that one of the essential privileges of the populace of India is the flexibility
of religion. In 1947 India got freedom and the Constitution in 1950 pronounced India as a
mainstream State. As per secularism, each resident of the nation has a central right to practice his
or her religion gently.
Then again, we have been listening to various occurrences of religious narrow mindedness
that have prompted mobs and roughness in our nation from quite a while. The late news of
Muslims being changed over to Hindus in Agra has truly loaded a lot of contention. Everybody
has a privilege to take after his religion according to his introduction to the world or according to
his wish. It's the established right to pick his or her own particular religion, however rolling out
individuals persuasively improvement their religion or attracting individuals to change their
religion ought to be considered as wrongdoing.

2. INDIA HAS FIVE NOTEWORTHY RELIGIONS

India has five noteworthy religions – Hinduism, Islam, Jainism, Buddhism and Sikhism,
where Hindus structure 80% of the populace and others are the minorities. There are likewise
States in India with greater part populaces of different religions like in J&k, where we have
Muslim lion's share, Punjab with Sikh greater part, and Mizoram, Nagaland and Meghalaya with
Christian dominant part et cetera.

3. FREEDOM TO PROFESS AND PRACTISE RELIGION OF ONE’S CHOICE

The freedom of conscience and the right to profess, practice and propagate religion is
enshrined in Art.25 of the Constitution. The equality of all religions is expressly recognized by
Art.25 thereby emphasizing the cherished ideal of secularism. The expression ‗practice‘ is
concerned primarily with religious worship, ritual and observations. Propagating the religion
connotes the right to communicate the religious beliefs to others by expounding the tenets of that
religion. Of course, in the name of propagation, no one has a right to convert a person to another
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religion under pressure or inducement (vide Rev. Stainislaus v. State of Madhya Pradesh, AIR
1977 SC 908). Religious practices are as much a part of religion as religious faith or doctrines
(vide The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thiratha
Swamiar of Shirur Mutt, AIR 1954 SC 282). The fundamental right to freedom of conscience
and the right to profess, practise and propagate a religion is subject to the considerations of
public order, morality and health. Clause (2) of Art.25 preserves the power of the State to make a
law regulating any economic, financial, political or other secular activity which may be
associated with religious practice. Art.26 gives effect to the concomitant right of the freedom to
manage religious affairs and this right is again subject to public order, morality and health.
Articles 25 and 26 undoubtedly extend to rituals also and not confined to doctrine. It is well-
settled that the freedom of conscience and the right to profess a religion implies freedom to
change the religion as well. It is pertinent to mention that Art. 18 of the Universal Declaration of
Human Rights specifically lays down that the freedom of conscience and religion includes
freedom to change the religion or belief. The right to freedom of conscience thus implies the
individual right of a person to renounce one‘s religion and embrace another voluntarily.
The change from one religion to another is primarily the consequence of one‘s conviction
that the religion in which he was born into has not measured up to his expectations – spiritual or
rational. The conversion may also be the consequence of the belief that another religion to which
he would like to embrace would better take care of his spiritual well-being or otherwise
accomplish his legitimate aspirations. At times it may be hard to find any rational reason for
conversion into another religion. The reason for or propriety of conversion cannot be judged
from the standards of rationality or reasonableness.
Any discussion on conversion generates thoughts on religion and religious faith. There is
no precise definition of religion. ‗Religion‘, it is said, is a matter of faith and belief in God is not
essential to constitute religion. In Shirur Mutt case (AIR 1954 SC 282), Mukherjee, J made the
following pertinent observations on religion and Hindu religion in particular:
“Religion is certainly a matter of faith with individuals or communities and it is
not necessarily theistic. There are well known religions in India like Buddhism
and Jainism which do not believe in God or in any Intelligent First Cause. A
religion undoubtedly has its basis in a system of beliefs or doctrines which are
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regarded by those who profess that religion as conducive to their spiritual well
being, but it would not be correct to say that religion is nothing else but a
doctrine or belief. A religion may not only lay down a code of ethical rules for its
followers to accept, it might prescribe rituals and observances, ceremonies and
modes of worship which are regarded as integral parts of religion and these
forms and observances might extend even to matters of food and dress.”
The saint and great philosopher Swami Vivekananda said:
“Religion as it is generally taught all over the world is said to be based upon
faith and belief and in most cases consists only of different sets of theories and
that is the reason why we find all religions quarrelling with one another. These
theories are again based upon faith and belief.”
Sri M.N. Rao, former Chief Justice of H.P. High Court, after referring to the above
thoughts in his article on ‗Freedom of Religion and Right to Conversion‘ (2003) made the
following pertinent observations:―Right to conversion connotes individual right of a person to
quit one religion and embrace another voluntarily. This kind of change from one religion to
another religion must necessarily be in consequence of one‘s conviction that the religion in
which he was born into has not measured up to his expectations, spiritual or rational. Sometimes
it may also be the result of losing faith in one‘s own religion because of the rigidity of its tenets
and practices. Sometimes one may even lose total faith in the very concept of the existence of
God and turn to Atheism. A change of religion, a consequence of any of the above reasons, falls
within the ambit of the ―Right to Conversion‖.

4. RELIGIOUS TRANSFORMATION/CONVERSION
Religious transformation means embracing another religion, a religion that is unique in
relation to his past religion or religion by his introduction to the world. There are different
purposes behind which individuals proselyte to distinctive religion:
• conversion by unrestrained choice or free decision
• conversion because of progress of convictions
• conversion for accommodation
• conversion because of marriage

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• conversion by energy
Religious Conversion is multifaceted and multi dimensional wonder. Indian culture is a
pluralist and heterogeneous society with multitude of races, religious social, ranks and dialects
and so forth.
On account of Sarla Mudgal versus Union of India, AIR 1995 SC 1531 a married Hindu
male converted in to Islam for the sake of solemninising another marriage as polygamy is
permitted in Islam. The Hon‘ble SC held that conversion in to another faith Ipso-facto does not
dissolve the first marriage because no one is allowed to take the benefit of his own wrong.
Moreover the court held that the married person converting into Islam is not entitle to marry
another woman after conversion. It was held to be an act of bigamy prohibited U/S 17 of Hindu
Marriage Act, 1955 and punishable U/S 494 of IPC and it was further observed that the second
marriage is void.
In Vilayat Raj versus Smt. Sunita, AIR 1983 Delhi 351 it was observed by the court that if
both the parties to the marriage were Hindu at the time of marriage , pre-nupital law i.e. Hindu
Marriage Act applied even after conversion in Islam.
In Lilly Thomas versus Union of India, (2013) 7 SCC 653 it was watched that a defector
spouse is liable of plural marriage U/S 494 of IPC in the event that he marriage an alternate lady
in the wake of changing over into Islam. It was watched that holding such individual
blameworthy of polygamy is not infringement of flexibility of religion under Article 25 of the
Constitution, henceforth, Section 17 of Hindu Marriage Act, 1955 is appropriate.
From the above it is clear that after the profession of the previously stated legal verdicts,
polygamy is no more an esteemed individual for religious transformation into Islam.
A person does not ceases to be Hindu nearly because he declares that he has no faith in his
religion. A person will not cease to be Hindu even if he does not practice his religion till he does
not renounces his religion or starts living and behaving like an atheist or agnostic or starts eating
beef or insulting God or Goddesses. He does not ceases to be member of the religion even if he
starts expressing his faith in any other religion , he continuous to be a Hindu was held in Chandra
Shekharan v. Kulundurivalu, 1963 AIR 185.

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On the off chance that an individual believers from Hindu religion to Sikh ,Budhism or
Jainism he doesn't stop to be Hindu since all these religions don't fall past the meaning of
"Hindu" in the significant area of Hindu Marriage Act . He stops to be Hindu in the event that he
changes over into Islam Christianity or Jews or Zoroastrain, change into these religion is a
ground for devastation of marriage for the other life partner and not for the mate who changes
over into any such religion ( under section 13 Hindu Marriage Act).
Under Section 80 of the Hindu Adoption and Maintenance Act, 1956 if the spouse gets
changed over into Non-Hindu confidence wife is qualified for live Separately without
relinquishing her privilege of support yet in the event that she herself additionally stops to be
Hindu, she looses her claim of upkeep under the area, But she is entitled under segment 24 of
Hindu Marriage Act in 1955 for pedente-lite and perpetual divorce settlement.
Extraordinary Marriage Act 1954 reflects the genuine sprit of Indian Secularism as it is in
consonance with India 's heterogeneity and multitude of religious confidence. Change does not
make any impact on marital ties as the Act is the mainstream enactments and itself think about
entomb station and bury religious relational unions.
The Indian Divorce Act, 1869- If the spouse gets changed over into non Christian
confidence, wife is entitled for separation however the other way around is impractical. In the
event that wife gets changed over into non Christian confidence spouse can not seek separation.
Under Dissolution of Muslim Marriage Act, 1939 Section 4 says if a wife disavows Islam,
the marriage does not Ipso-facto disintegrate unless the circumstances warrant generally.

Conversion –Nature Of And Essentials To Be Proved

Conversion like a marriage is a solemn act. Conversion from one religion to another has
far reaching consequences –social and legal. It affects succession, marital status and also the
right to seek elective office. Divorce can be granted on the ground that the spouse has changed
the religion (vide Section 13(1)(ii) of the Hindu Marriage Act). `Upon conversion a person may
be governed by a different personal law. The right to contest in elections from a constituency
reserved from SCs / STs might be lost if the person who has changed the religion happened to be
a member of Scheduled Caste or Tribe. Thus, the event of conversion is of critical importance
from the point of view of rights and disabilities of a convert. Conversion cannot be treated as an

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event which can be achieved through a mere declaration – oral or writing. At the same time, no
particular formalities or ceremonies are required according to the law declared by Supreme
Court. In fact, no such ceremonies are specifically prescribed in any religious texts or precepts,
though certain ceremonies like ‗Suddhi‘ (in the case of Arya Samajists) and baptism (in the case
of Christians) are gone through in practice in some cases. Credible evidence of the intention to
convert followed by definite overt acts to give effect to that intention is necessary. The
subsequent conduct of the convertee is also important in reaching the conclusion that a
conversion in its true sense had taken place and there was genuine conversion. The evidentiary
facts which establish conversion have been time and again stated by the Supreme Court, while
observing that no specific ritual or ceremony is required. Satisfactory evidence of conversion
which has always been insisted upon by the Courts is necessary especially when we hear
plethora of complaints of manipulated conversions for extraneous reasons or as a result of undue
pressures.

5. MAJOR EVENTS OF CONVERSION

Major events of conversion are not reported unless they are highlighted by media or a hue
and cry is made by Hindu Organization. Following are the major incidents of religious:
The Constitution of India aims at securing freedom of religion and freedom of conscience
under Article 25 ,26,27,28,30 and at the same time it seeks to create a harmony among all
religions. Being suitable to the pluralistic society and historical lineage. Such freedom needs to
continued. Any other policy will not be unconstitutional but also extremely harmful and
suffocative for the public. It. However, need to be realized that an incessant process of
transformation and change is also going on as change is the rule of nature. The ideas , faith,
psyche, behavior and attitude of people have always been subject to change, though, the factors
of change are spatial and temporal. An important aspect with respect to change of faith is the
state of One‘s awareness and ignorance. More awareness and enlightenment does definitely have
an impact on the thought, belief and action of a person, faith and elements of conscience. Thus as
regards conscience , state of knowledge is itself under a constant process of change and every
human being is undergoing a metamorphosis of understanding with continuing with continuing

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process of experience of life and learning . Therefore, it is advisable to tie up someone to a

particular faith for all the times.
But in Indian perspective, an aspect of freedom of conscience which has attained a
problematic dimension, is the right to propagate faith. The meaning of propagation is to promote
, spread and publicize one‘s relating to his own faith for the edification of others. The term
propagation implies persuasion and exposition without any element of fraud, coercion and
allurement. The right to propagate one‘s religion does not give a right to convert any other
person to one‘s own religious faith. It may be pointed out that the right to convert other person to
one‘s own religion is distinct from and individual right to get convert to any other religion on his
own choice. The later is undisputedly is in conformity with the freedom of religion and freedom
of conscience under Article 25 of the constitution while the former is the subject of long
prevailing controversy with reference to propagation of faith.
Religious conversion has always been a very sensitive social issue not only because of the
reasons that it has psychological concerns of religious faith but also because it has wider socio-
legal and socio-political implications. It has also been revealed by the recent incident of
conversion in Haryana, Madhya Pardesh , Tamil Nadu, Gujarat , Orissa and in Delhi ( in Delhi
according to official sources around 20,000 dalits got converted in to Buddhism in the year 2002
under the nation a wide call for conversion by Udit Raj , the leader of Justice party). On the one
hand due to these recent incidents of conversion the Hindu Safforn Organizations like R.S.S.,
V.H.P., Shiv Sena ,Bajrang Dal. etc. have made a lot of hub-bub and not only this Mr. AtalBihari
Vajpayee, the former prime minister call for a nationwide debate on conversion.
The legislative history relating to the issue of conversion in India underscores the point
that the authorities concerned were never favorably disposed towards conversion. While British
India had no anti-conversion laws, many Princely States enacted anti-conversion legislation: the
Raigarh State Conversion Act 1936, the Patna Freedom of Religion Act of 1942, the Sarguja
State Apostasy Act 1945 and the Udaipur State Anti-Conversion Act 1946. Similar laws were
enacted in Bikaner, Jodhpur, Kalahandi and Kota and many more were specifically against
conversion to Christianity. In the post-independence era, Parliament took up for consideration in
1954 the Indian Conversion (Regulation and Registration) Bill and later in 1960 the Backward
Communities (Religious Protection) Bill, both of which had to be dropped for lack of support.
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The proposed Freedom of Religion Bill of 1979 was opposed by the Minorities Commission due
to the Bill's evident bias.
However, in 1967-68, Orissa and Madhya Pradesh enacted local laws called the Orissa
Freedom of Religion Act 1967 and the Madhya Pradesh Dharma Swatantraya Adhiniyam 1968.
Along similar lines, the Arunachal Pradesh Freedom of Religion Act, 1978 was enacted to
provide for prohibition of conversion from one religious faith to any other by use of force or
inducement or by fraudulent means and for matters connected therewith. The latest addition to
this was the Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance promulgated
by the Governor on October 5, 2002 and subsequently adopted by the State Assembly. Each of
these Acts provides definitions of `Government', `conversion', `indigenous faith', `force', `fraud',
`inducement' (and in the case of Arunachal, that of `prescribed and religious faith'). These laws
made forced conversion a cognizable offence under sections 295 A and 298 of the Indian Penal
Code that stipulate that malice and deliberate intention to hurt the sentiments of others is a penal
offence punishable by varying durations of imprisonment and fines.
As early as 1967, it became evident that the concern was not just with forced conversion,
but with conversion to any religion other than Hinduism and especially Christianity and Islam. In
the Orissa and Madhya Pradesh Acts, the punishment was to be doubled if the offence had been
committed in respect of a minor, a woman or a person belonging to the Scheduled Caste or
Scheduled Tribe community.
Moreover, Jayalalitha government in Tamil Nadu has gone to the extent of enacting ant-
conversion legislation (Tamil Nadu prohibition of forcible conversion ordinance 2003) to put a
check on the incidence of religious conversion. In April 2006 The Rajasthan Dharma Swatantrata
(religious freedom) Bill, introduced by the BJP government, was passed by a voice vote. The
Chattisgarh Government passed an anti-conversion bill in form of Chattisgarh Religion Freedom
(Amendment) Act, 2006 providing for a three-year jail term and a fine of Rs.20,000 for those
indulging in religious conversion by force or allurement. The Madhya Pradesh Government also
passed a controversial bill to amend the state's Freedom of Religion Act of 1968 to prevent
religious conversion by force or allurement.
The contention of the Hindu organization is that most of the minority religious
organization, especially, Christian Missionaries are actively involved in the activities of mass
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religious conversion in the name of social service. According to them the target groups of these
Christian missionaries are generally illiterate and poor Dalits and Poor tribes.
On the other hand many dalit organizations and Dalit thinkers have perceived these
recurrent incidents of religious conversions as great events of Dalit emancipation from the
clutches of the vicious Hindu Caste System which is and has been a constant stigma on the face
of Indian society. According to them, Hindu Caste System is founded on rigid and the stringent
Caste hierarchy . Due to this inhuman and hate worthy Caste system Dalits and Shudras
(Untouchables) have always been treated inhumanly, they have been subjugated, oppressed and
persecuted by the so called upper caste Hindus or Manu vadis in the name of caste. Dalit thinkers
also allege that Hindu Soceity could not make a adequate reforms in Hindu religion during last
more than 3000 years , so that a lower caste Hindu could not live with human dignity in Hindu
religion. According to them majority of Dalits and shudras (untouchable) are illiterate deplorably
poverty stricken and living in sub- human conditions. They have been denied basic human rights
even after 59 years of independence, Moreover, in day today life they often to face atrocities and
exploitation at the hands of upper caste Hindus in the name of caste. Hindu religion does not
treat its all follower alike, Hinduism discriminates against one segment of its followers vis-à-vis
the other and does not treat all of them equally. It has failed to provide social dignity to dalit and
shudras. Therefore, they think that it is better to kick our such an obnoxious and suffocating
religion from one‘s life and to convert in a religious which does not discriminate against them in
the name of caste and which given them equal treatment and dignified human life. That is why
Dalits and other progressive minds have supported the incidence of mass religious conversion
and consideration them to great events.

CONCLUSION
We can conclude from the above discussion that any protest against religious conversion is
always branded as persecution, because it is maintained that people are not allowed to practice
their religion, that their religious freedom is curbed. The truth is entirely different. The other
person also has the freedom to practice his or her religion without interference. That is his/her
birthright. Religious freedom does not extent (sic) to having a planned programme of conversion.
Such a programme is to be construed as aggression against the religious freedom of others.

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Finally, as far as Hinduism is concerned, besides it being vindicated as a way of life,

efforts must be made to augment its role as a form of religion, that is, Hinduism must be
practiced as a religion that upholds the principles of personal freedom, self-dignity, social
equality and economic security. This will reduce the chances of transgression by way of
conversion in any manner. Scriptures like the Vedas, Upanishads and the Gita should gather
larger weight age and reach the necessary quarters for sufficient lobbying to match the access
and emotional respect gained by the Bible and the Koran. The image of a Hindu will go up not
by blaming others for conversion but by creating conditions that will make conversion by and
large unnecessary for the fellow members of his religion.

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AFFIRMATIVE ACTION ACROSS COMMON LAW COUNTRIES: A

COMPARATIVE APPROACH

PITAMBER YADAV
One of the most difficult public policy issues facing any society is how to deal with a
historical legacy of discrimination and exclusion based on racial, ethnic, or hereditary categories.
One natural response to entrenched inequality is to implement affirmative action policies which
explicitly favour historically disadvantaged groups. The trust is to level the playing field in the
transient and to influence a more extended term conversion whereby social order inevitably no
more needs governmental policy regarding minorities in society.
Affirmative action refers to ―the set of public policies and initiatives‖ intended to help get
rid of past and present discrimination based on race, colour, religion, sex or national origin, or it
means ―ethno racial preferences in the allocation of socially valuable resources‖.82
The four jurisdictions that will be examined share English as a common language as well as, in
varying degrees, a common law legacy. In the United States the clause regarding equality has
been fundamentally influenced due to its history of slavery. Whereas India one of the primary
reasons has been a history of caste system. South Africa has it in order to resolve the wounds of
apartheid. And Canada has it due it‘s linguistic and First Nation minorities.
It is important to note that each of these jurisdictions has statutory protection against
discrimination. On analyzing these jurisdictions, we note that common law courts have authority
to make law where no legislative statute exists, and to interpret the particular legislations. Judges
base their decisions on prior judicial verdicts or precedents and the court‘s decision would be a
binding authority. The freedom to interpret and insight of judges is compared in order to dig
deep in affirmative action.

1. CANADA
All throughout Canada's history, numerous groups have been the subject of racial
segregation, either through official, government-underpinned methods, or in a more casual way

3rd Year, B.A. LL.B (Hons.), Jindal Global Law School, Sonipat.
82
Marquita Sykes, ―The Origins of Affirmative Action‖, in Notional Organization for Women (1995).

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through social conditions and customs. Section 15 of the Canadian Charter, Canada's primary
constitutional document dealing with individual rights and freedoms, addresses gender equality
and affirmative action. It states, ―Every individual is equal before the law and under the law and
has the right to the equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour, religion, sex,
age or mental or physical disability‖.83
In Eaton v. Brant County Board of Education, the Supreme Court of Canada found that a
decision by an authoritative board and Tribunal to place a child in a special instruction classroom
did not intrude upon Section 15.84According to the Court, Section 15 has two main purposes, to
prevent discrimination by "the acknowledgment of stereotypical characteristics to individuals,"
and to enhance the positions of different groups in the Canadian society.
Section 15(2) states, ―Subsection (1) does not preclude any law, program or activity that
has as its object the amelioration of conditions of disadvantaged individuals or groups including
those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age
or mental or physical disability‖.85 This section permits affirmative action.
In Lovelace v. Ontario, the Supreme Court of Canada established the precise legal effects
of Section 15(1) and 15(2) upon race-based affirmative action programs.86 It is one of the
landmark cases where the Supreme Court clarified the relationship between Section 15(1) and
Section 15(2). Justice Iacobucci in the present case categorized race-based government
affirmative action programs as being, first and foremost, about ―an expression of equality, rather
than an exception‖.87 Justice Iacobucci further said that it is important to analyse and focus upon
what the program is achieving. The court held that one of the main aims of Section 15(1) is to
protect individuals from violation of essential human dignity.88
On deciding on the relationship between Section 15(1) and 15(2), section 15(2) was read
as clarification to Section 15(1) rather than being an exception.89 In R v. Kappthe Court held that

83
CAN. CONST. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), § 15(1).
84
Eaton v. Brant County Bd. of Educ., [1997] S.C.R. 241.
85
CAN. CONST. (Constitution Act, 1982) pt.I (Canadian Charter of Rights and Freedoms), § 15(2).
86
Lovelace v. Ontario, [2000] 1 S.C.R. 950, 987.
87
Id. at 1008.
88
Id. at 985.
89
Id. at 1010.
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‗Sections 15(1) and 15(2) work together to promote the vision of substantive equality that
underlies‘.90
In Canada, affirmative action is also at times known as ‗employment equity‘, where the
first affirmative action was relating to keeping certain positions for minorities. Provisions in the
Charter protect the minority communities from discrimination. The Court has clarified that
Section 15(2) acts as a clarification to Section 15(1) and thereby permits affirmative action.

2. UNITED STATES OF AMERICA

In both the United States of America and South Africa, issues of isolation also segregation
is not new. In these matters, both nations have a relative history as both accomplished
government-authorized racial discrimination and isolation. Both the United States of America,
throughout the slavery period to 1865 also that of Reconstruction after 1876 matching the Civil
War, and South Africa, throughout the politically-sanctioned racial segregation time, passed
laws obliging or allowing the isolation of races in everyday life.
In March 1961, President John F. Kennedy issued Executive Order 10925, calling for
affirmative action to displace the then widespread practices of discrimination. The Order
required federally funded employers to ―take affirmative action to ensure that applicants are
employed . . . without regard to their race, creed, colour, or national origin‖. 91 This was the first
time that the word affirmative action was used. Jim Crow was the name of a racial caste system
which was used to describe the segregation laws, rules and customs. The Jim Crow laws existed
from 1880‘s to 1960‘s.
In 1856 the first Supreme Court case on the issue of slavery was decided. In Dred Scott
v.Sandford, Scott, a black slave in Missouri, asserted that as a native of the USA, he was
qualified for his freedom when his master took him on a journey to non-slave regions and to the
free state of Illinois. The Supreme Court chose that Scott was a negligible property who was
being taken by his master to a spot where subjugation was prohibited and that provided for him
no only claim to manumission.92The Court held that African Americans whether slave or free,

90
2008 S.C.C. 41.
91
John F. Kennedy, ―Statement by the President Upon Signing Order Establishing the President‘s Committee on
Equal Opportunity Employment,‖ March 7, 1961.
92
Dred Scott v. John F. A. Sandford, 60 U.S. 393.
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could not be American citizens. This is one of the landmark judgments. The Judicial Clerk didn‘t
know that such will be the reception that the actual name of the respondent was Sanford and not
Sandford, which was the mistake made by the clerk. Approved by Title VII of the Civil Rights
Act of 1964, the Courts began to order affirmative action as a remedy in cases of past
discrimination that were proved.
In Brown v. Board of Education93the Court declared state laws establishing separate public
schools for black and white students unconstitutional. The decision overturned the Plessy v.
Ferguson94 decision of 1896, which allowed segregation that was sponsored by the state.
Affirmative action programs made their successful entry into many walks of life in the
United States during 1970‘s. In 1978, the first affirmative action case that came up before the
U.S. Supreme Court was the Bakke case95, which led to the landmark decision of the Court that
prohibits fixed quota in college admissions.But what the court did was that it allowed the
institutions to have ‗race‘ as one of the factors to make admission in the institution. Justice
Powell‘s ―tie-breaking opinion‖ centredupon the constitutionality of ―diversity‖ in the student
body and the benefit that it will bring to the nation. It was due to this argument that was made by
Judge Powell relating to diversity that allowed race as a ground for admission. According to
Justice Powell, the diversity would further ―academic freedom,‖ which was a ―special concern of
the First Amendment‖.96 In Fullilovev.Klutznick97, Chief Justice Burger joined by Justice Powell
stated specifically that practical reverse discrimination is necessary in order to achieve equal
economic opportunities. In another case ofAdarand v.Pena98, the Court decided by a majority of
5:4 that even in cases of racial classification, the standard of strict scrutiny should be applied.
In 2003 the cases Gratz v. Bollinger99 and Grutter v. Bollinger100 brought clarity that
would further the Bakke decision in the 21st century. In Gratz v. Bollinger, the undergraduate
affirmative action policy of Michigan University was challenged. The University of Michigan

93
347 U.S. 483 (1954).
94
163 U.S. 537.
95
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
96
Id. at 311-313.
97
448 U.S. 448.
98
515 U.S. 200.
99
539 U.S. 244.
100
539 U.S. 306.

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used a 150-point scale to rank applicants, with 100 points required to guarantee admission. The
University gave some ethnic groups, including African-Americans, Hispanics, and Native
Americans, an automatic 20-point bonus towards their score, while a perfect SAT score was
worth 12 points.101 The Supreme Court ruled in a 6-3 decision that the particular policy violated
the Equality clause of the Fourteenth Amendment as the policy gave points increase to minorities
automatically rather than making an assessment which assess candidates individually. In the
other case of Grutter v. Bollinger,Justice Sandra O‘Connor ruled on behalf of majority thatthe
narrow use of race for admission does not violate United States constitution. According to the
opinion, affirmative action should not be allowed permanent status and that eventually a
"colourblind" policy should be implemented. The opinion read, "race-conscious admissions
policies must be limited in time." The decision allowed admissions where race was considered
but also focuses on considering other individualised factors during the admission process.
The income gap between the rich and the poor in communist China has surpassed that of
the United States by a big margin, a new study said, and warning of increased social
disturbance.102 On comparing United States with China, China has one of the oldest and largest
sets of state-sponsored preferential policies for ethnic minorities. Although the preferential
policies program in People's Republic of China ("PRC") dates from the inception of the state in
1949. The Chinese government established "education preferential policies" for minorities
(somebody who fits in with one of 55 ethnic aggregations other than the larger part Han group)
to make up for the monetary and instructive separation between country areas and Chinese urban
communities. At present more than 88 percent of minorities live in rural zones, where
educational infrastructure is generally rare.103
According to a study which was consequently upheld by China's National Social Science
Foundation, the number of minority students that have taken admission in higher education
institutions expanded from 36,000 in 1978 to 1.367 million in 2008, (though the percent of

101
"Gratz v. Bollinger". Regents of the University of Michigan.
Available at: http://www.vpcomm.umich.edu/admissions/legal/gratz/gratsumj.html
102
Rich-poor divide in China surpasses US, Times Of India,
http://timesofindia.indiatimes.com/world/china/Rich-poor-divide-in-China-surpasses-US-study-
finds/articleshow/34437206.cms?utm_source=facebook.com&utm_medium=referral
103
Siyu Hu, Affirmative Action Meets Challenges in U.S. and China, Washington Monthly,
http://www.washingtonmonthly.com/college_guide/blog/affirmative_action_meets_chall.php#
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college students who are ethnic minorities, 6.7, is still lower than the minority percentage in the
total population, 8.4).104
China's preferential policies apply to areas containing minorities and as well as to
individuals who constitute the minorities. Lower-level minority areas receive infrastructural
subsidies from higher jurisdictions.105 Budgetary grants, disproportionate investment in public
works and the provision and training of personnel are common features of preferential
policies.106
Unlike other constitutions, the constitution of People‘s Republic of China has a cut out
provision107 that states that the rights of minorities will be protected by the state and the state will
ensure that the minorities are economically backed. Article 4 supports the preferential policies
that the States makes towards minorities and thereby approves of affirmative action.
On comparing the two countries we see how both of them are working towards the
betterment of minorities in the respective countries though the minorities are not present in such
a number in United States. United States are working towards reduce the disparity between the
racially discriminated blacks whereas the Han group in China has been uncannily supported by
keeping the minorities calm with the help of these provisions.
Supporters of affirmative action regarding minorities in society contend that the diligence
of such differences reflects either racial separation or the persistence of its effects. Governmental
policy regarding minorities in society is a piece of a technique to finish racial domination that
might overall proceed unchallenged. Affirmative action regarding minorities in society, in this
manner, speaks to a reaction to, and is not the reason for, the racial incongruities that rise up out
of a standard of favored whiteness. In both the cases of United States and China we see how
affirmative action policies are used and to what extent can they bring about peace in the society.

104
Id.
105
Low Interest Loans, Tax Breaks, and Subsidies to Help Ethnic Minority Millions, S. CHINA MORNING POsT,
Nov. 16, 1997, at 6.
106
China's Policy to Boost Ethnic Minority Regions, BBC/Sunmmary of World Broadcasts, Jan. 27, 1996.
107
Article 4 of the Chinese constitution states - All ethnic groups in the People's Republic of China are equal. The
state protects the lawful rights and interests of the minority ethnic groups and upholds and develops a relationship of
equality, unity and mutual assistance among all of China's ethnic groups. Discrimination against and oppression of
any ethnic group are prohibited; any act that undermines the unity of the ethnic groups or instigates division is
prohibited. The state assists areas inhabited by minority ethnic groups in accelerating their economic and cultural
development according to the characteristics and needs of the various minority ethnic groups.
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3. INDIA
The Constitution of India is a constitution to expressly include provisions for affirmative
action, in the form of ‗reservations‘. Special provisions have been made in the Constitution for
two of the very important categories of disadvantaged groups. The origins of India‘s caste
system can be found in the Hindu tradition. All Hindus born in India enter the caste system upon
birth.108
One of the categories of disadvantaged groups is known as ‗Schedule Castes and Schedule
Tribes‘. These are the groups that have to be specified by the President.109 The other categories
of disadvantaged groups are ‗socially and educationally backward classes of citizens‘110, or other
‗backward classes‘.111 In one of the leading cases, the Supreme Court of India has held that
affirmative action is a feature of the principle of non-discrimination rather than an exception, a
likely means of achieving equality rather than supporting inequality. 112 In the pivotal case of
Indra Sawnhney, where the majority made it clear that Article 14 did not necessitate the removal
of classifications or formal, symmetric equality.113‗Article 15(4) and 16(4) are not exceptions to
Article 15(1) and Article 16(1) but independent enabling provision[s]‘.114
The Constitutional Court of Slovak Republic concluded that the adoption of positive action
measures is in conflict with the principles of equality and non-discrimination.115 This ruling is
considered extremely significant, as it is in conflict from the for the most part distinguished
standards of International Law and European Human Rights Law.
The decision of the Slovak Constitutional Court pronouncing insurrection of the positive
activity guideline held in the Anti-Separation Act with the Slovak Constitution will, in
conclusion, have deterring results on the security of minorities in the Slovak Republic by and

108
O‘Neill, Tom. ―Untouchable.‖ National Geographic Magazine. June 2003.
http://magma.nationalgeographic.com/ngm/0306/feature1/
109
IND. CONST. art. 341 & art. 342
110
Id. art. 15(4).
111
Id. art. 16(4).
112
State of Kerala v. N.M. Thomas, A.I.R. 1976 S.C. 490.
113
Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477.
114
Ashoka Kumar Thakur v. Union of India, Writ Petition (civil) 265 of 2006
115
Paul Belien, Slovakia Bans Positive Discrimination Legislation, http://www.brusselsjournal.com/node/381;
RenataGoldirova, Slovakia bans positive discrimination, http://euobserver.com/justice/20123
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large, and more specifically on the Roma minority. The provision with positive action was ruled
to be violating the Slovak Constitution.116
The Constitutional Court has ruled against positive discrimination in order to ensure that
no person is being discriminated against or advantaged. The Court has taken the particular
provision in its strict sense. On comparing the social conditions, the particular decision by the
Constitutional Court of Slovakia will have a negative effect on the minorities in Slovakia;
whereas the decision favouring the castes aims to empower them.

4. SOUTH AFRICA
A significant authoritative advancement in South Africa occurred with the coming into
existence of the Employment Equity Act, 1998 (EEA). The Act looks to execute the wide
fairness targets of the Constitution of the Republic of South Africa.
One of the expressed points of governmental policy regarding minorities in society in
South Africa is to kill economic dissimilarity among individuals. This is an excellent objective,
as South Africa is one of the nations with the most unequal conveyance of riches on the planet.
Throughout the last decade or thereabouts, this bias has just declined. The crevice between the
rich and poor people is consistently extending. It is consequently basic that neediness must be
reduced.
Second on the list of ANC policy objectives adopted at their National Conference in May
1992 was the question of addressing inequality: ―to overcome the legacy of inequality and
injustice created by colonialism and apartheid in a swift, progressive and principled way‖.117
Affirmative action in South Africa was first thought of by the ANC in the 1980s in order
to be able to deal with inequality that has plagued the society since apartheid. Section 9(2) of the
South African Constitution provides: ‗To promote the achievement of equality, legislative and
other measures designed to protect or advance persons, or categories of persons, disadvantaged
by unfair discrimination may be taken‘.118The meaning of this provision was elaborated in Van

116
Article 12(2) of the Slovak Constitution states: ―Fundamental rights shall be guaranteed in the Slovak Republic to
everyone regardless of sex, race, colour, language, belief and religion, political affiliation or other conviction,
national or social origin, nationality or ethnic origin, property, descent or any other status. No one shall be
aggrieved, discriminated against or favoured on any of these grounds.‖
117
Available at http://www.info.gov.za/speeches/1994/230994009.htm
118
SOUTH AFRICAN CONST., s. 9(2).
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Heerden where Justice Mosenekestressed, instead of being an exception to equality,

compensatory measures are an essential part of it.119 In the same case it was held by the Court
that S. 9(1) and S. 9(2) are complementary and both contribute to achieving equality and ensure
full and equal enjoyment of rights.
Also, Section 6(2) of the EEA clearly states that it is not unfair discrimination to take
affirmative action measures, which will be consistent with the purposes of the Act. Affirmative
action in South Africa is justified by its purpose. At the end of the apartheid era in 1995 whites
accounted for 13% of the population and earned 59% of personal income; whereas Africans
constituted 76% of the population.120 Section 15(1) of the Employment Equity Act (EEA) has
provisions for affirmative action.121 According to the Act, ‗designated groups‘ meanblack
people, women and people with disabilities.122‗Black people‘ is a wider concept and it includes
Africans, Coloureds and Indians.123In Stoman v.Minister of Safety & Securityit was held that
affirmative action benefits groups.124
In President of the Republic of South Africa v. Hugo125, Justice Goldstone vouched for
system of unbiased and unfair discrimination, as in order to achieve equality of freedom and
opportunity cannot solely be achieved identical treatment.
It is hence of fundamental vitality that social conversion through frameworks of work
value be brought inside the standardizing system of the Constitution itself. Along these lines the
constitution keeps up its capacity of adjusting the need to impact key socio-political change with
the needs of security, congruity and also national integrity.

119
Minister of Justice v. Van Heerden, 2004 (6) SA 121 (CC); 2004 (11) BCLR 1125 (South African Constitutional
Court).
120
Human Development Report ‗Bringing Multicultural Societies Together‟ 70.
121
S. 15(1) states- Affirmative action measures are measures designed to ensure that suitably qualified people from
designated groups have equal employment opportunities and are equitably represented in all occupational categories
and levels in the workforce of a designated employer
122
S. 1 of the EEA.
123
Id.
124
(2002) 23 I.L.J. 1020 (T).
125
1997 (6) B.C.L.R. 708.
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CONCLUSION
Regardless of the talk on strengthening of the SC‘s, the ST‘s, other minorities and the
presence of broad laws and procurements, very little has been accomplished in real terms. What
has been the effect of reservation arrangements? While a little proceed to address the
requirement for reservations, it ought to be seen that the strategy has never been completely
executed from the time of its origination. Another major question that has not been answered is,
whether the policy concerning affirmative action is the only answer to inequality.
In all the jurisdictions that have been analyzed, we have noticed as to how in certain cases judges
have interpreted different provisions that have been laid down in the constitutions. It is important
to analyze affirmative action policies because of the relevance they hold in our society.
Affirmative action policies are difficult to bring in any state because of its controversial
character. While dealing with topics such as affirmative action, it is not only important that we
look into the history of the state and also what the current situation demands. There have been
strong criticism of the policy but in the end it is important to note that not only these policies are
important for supporting the minorities and bring the sense of equality. The debate regarding its
validity is existing since time immemorial but it depends upon the social situation and conditions
present at the time.

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RESEARCH ARTICLE- THEORISING SPECIAL CATEGORY STATUS:

QUESTION OF ASYMMETRIC FEDERALISM

RAHUL MOHANTY

1. INTRODUCTION: DEBATE OVER SPECIAL CATEGORY STATUS

In recent times in India, especially after the rise of regional and coalition politics since
1990s, there is growing clamour and demand for Special status with several states like Bihar,
Rajasthan, and Odisha among others.126 In the backdrop of such renewed focus on Special
Category Status in India, which had its roots in Gadgil Report of 1969, look to offer a theoretical
analysis of the same keeping in mind the principles of federalism. Herein I seek to examine the
larger implications of such special status and politics behind the same upon the way federalism is
conceived and practiced in India.
For this purpose, I have briefly discussed Federalism and Asymmetric Federalism in
particular, which is later used to examine the question of special status. Then I briefly examine
the practice of asymmetric federalism in India and offers a comparative perspective with such
practices elsewhere in the world and tries to draw some generalised lessons. I note here that
asymmetric federal arrangements can be justified by reference and analogising the same to
substantive equality. Theorising Special category status in terms of Asymmetric Federalism, I
conclude by stating the scenario in which it can bolster the federal principles in India and the
situations in which it can undermine the same.


3rd Year, B.A. L.L.B (Hons.), NALSAR, Hyderabad.
126
PTI, Opposition demands Special Status for six states, Available at:
http://www.thehindu.com/news/national/opposition-demands-special-status-for-six-states/article5713271.ece (Last
Accessed om: 04-04-2015); NDA non-committal on Special Status for Odisha, Available at:
http://www.newindianexpress.com/states/odisha/NDA-Noncommittal-on-special-Status-for-
Odisha/2015/01/09/article2610945.ece (Last Accessed om: 04-04-2015).

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2. UNDERSTANDING THE CONCEPT OF FEDERALISM

An analysis of special status of some states and its effect on federalism requires firstly, a
conceptual clarity as to scope and meaning of federalism. Hence it is imperative to examine
some of the most popular definitions of federalism.
SP Aiyer, in one of the most critically sound definitions, defines federalism as “a
voluntary union of a number of originally independent states, formed with a view to realising
certain common advantages—a union in which there is a set of parallel governments, that of the
central or the national government and those of the states, each independent in its own sphere of
authority”.127
Similar to this ‗common advantages‘ theory is Riker‘s theory that to federalism essentially
springs out of rational bargain (for political or economic ends) among various constituent
units.128However during this politico-economic bargain the states also try to retain their
identities—leading to formation of a federation, without absolute unity. Others have differently
defined the concept. For instance Prof. KC Wheare considered that federalism can be seen as a
mode of dividing powers so that each of the governments-whether central or the state, are
‗coordinate and independent‘.129 Others like Vile and Birch emphasise that division of powers
between authorities and subsequent coordination between them, unlike Wheare who focuses on
independent status of the federal units coming together130 (thus excluding what are commonly
known as ‗federation by holding out‘). Some others talk about the concept of ―cooperative
federalism‖ entailing interdependence and cooperation between the federal units and the centre
rather than an antagonistic competition or legal barriers between them. 131 In my opinion, talk of
cooperative federalism is redundant and tautologous as any federal system, as Aiyer notes is

127
SP AIYER, FEDERALISM AND SOCIAL CHANGE, The Nature of Federal Government, Asia Publishing House, 1961.
128
WILLIAM H. RIKER, FEDERALISM: ORIGIN, OPERATION, MAINTENANCE, Little Brown,1964; Craig Volden, Origin,
Operation, and Significance: The Federalism of William H. Riker, Conservative Perspectives on American
Federalism, Vol. 34, No. 4, (Autumn, 2004), 89-107.
129
K C WHEARE, FEDERAL GOVERNMENT, Oxford University Press, 4th ed., 1963.
130
MICHEAL BURGESS, COMPARATIVE FEDERALISM: THEORY AND PRACTICE, Routledge, 2006; A.H. BIRCH,
FEDERALISM, FINANCE AND SOCIAL LEGISLATION IN CANADA, AUSTRALIA AND THE UNITEDSTATES, Oxford-
Clarendon Press, 1955.
131
M. GOVINDA RAO AND NIRVIKAR SINGH, THE POLITICAL ECONOMY OF FEDERALISM IN INDIA, Chapter 1, Oxford
University Press, 1st ed., 2005; Harpreet Kaur, Role of inter-governmental agencies in Indian federalism, (2012),
Available at: http://shodhganga.inflibnet.ac.in/bitstream/10603/3541/7/07_chapter%201.pdf (Last Accessed on: 04-
04-2015).
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form for realising common advantages and therefore must necessarily entail cooperation, without
which the federation will fail. So analytically, a ‗cooperative federalism‘ is no different than
federalism simpliciter.
However what is key to a federation is along with this interdependence and cooperation
there must be independence as well, for there cannot be any true cooperation except equals. As
many scholars like Wheare, Dicey notes and M. Venkatarangaiya agrees that each government
must legally independent in its sphere of competence and must be able to exercise their
competence without encroachment (or by encroaching into others‘ sphere) by the other party to
the federal contract.132
Even others, refuse to recognise federalism as an analytical category having certain
defined attributes, and adopting a realist tone, exhort that federalism lies in how it is practiced
and not in how it is legally moulded. Reagon thus concludes that federalism lies in action than
structures and hence is dynamic rather than a static constant.133 This approach is quite useful
while trying to understand constitutional practice, especially in countries like Canada where the
constitutional practice over decades have led scholars to term it federal though the constitution is
more unitary. William S. Livingston sees federalism as a creation of social, cultural and political
factors and their interactions, rather than being a matter of legal and constitutional
terminology.134 He pointed out, rightly to an extent, that federalism does not survive on basis of
structures formed by the constitution, rather than such structures will have to be themselves
based upon a social, cultural and economic factors and the operative centripetal and centrifugal
forces.135This approach helps understand the politics of federation and recognises that balance of
centripetal and centrifugal forces underlying any federation may change with sometimes
centripetal forces holding sway leading to unitary practices and sometimes centrifugal forces
dominate leading to increasing power to federal units. However, analytically, this approach has
little to offer to those (say, drafters of constitutions) trying to decide between different forms and

132
M. Venkataragaiya, Federalism in Government, Waltaire, 1953, 169; ibid.
133
Anirudh Prasad and Justice D.A. Desai, Centre and State Powers under Indian Federalism, Deep and Deep
Publications, 1981, 20-24.
134
W.S. Livingston, A Note on the Nature of Federalism, Political Science Quarterly, vol. 67 (1952), 81–95; W.S.
LIVINGSTON, FEDERALISM AND CONSTITUTIONAL CHANGE, Oxford University Press, 1956.
135
Ibid.
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degree of federalism and trying to design institution to embed federalism in a polity.

Livingston‘s insight is helpful to understand what makes a federation success—that it must be
structured keeping in mind its peculiar social forces. However this does not mean that the
constitution has no role to play in shaping these social forces. As SA Barber argues,
Constitutional Law and politics is never a one way interaction. Constitution influences politics
and society as much as it is influenced by it.136 A poignant example of the same would be India,
whose origin as a federation and evolution of regional politics shows that even the same federal
structure over the years can yield different results as per politics of the age. However the
structures keep these forces in a check and acts as important safeguard and as an articulation of
regional autonomy in constitutional politics.
However, Livingston‘s contribution helps us to examine the worth of the concept of
‗quasi-federalism‘. Aiyer points out that concept of quasi-federalism is a matter of practice and
degree of federalism and this does not however have any conceptual and analytical worth.137
Only two conceptual categories could be unitary (in which there is no autonomy of constituent
units) or a federal system (having autonomy). There could be nothing in between. Although the
spectrum of federal system is wide and can encompass a wide and different degrees of division
of powers and autonomy. Seeing federalism as a creature of socio-political forces of the society
helps locating ‗quasi-federalism‘ (as federal in form but unitary in practice or vice versa), not as
a conceptual category, but as a matter of analytical worth. Such quasi-federalism can
conceptually fall either in camp of the federal or the unitary, but analytically their existence
shows the interaction of social forces and evolution of polity of a federation/nation. If not
anything, quasi-federalism, thus becomes a strong indicator of a society and polity in transition,
towards either of these camps and acknowledges their dynamism.
Harpreet Kaur, examining these manifold approaches to federalism concludes that in the
traditional model the essence of federalism is independence of units and centre from each other
and freedom to act within their own sphere of competence without interference—an articulation

136
Sotirios A Barber, Constitutional Failure: Ultimately Attitudinal, in THE LIMITS OF CONSTITUTIONAL
DEMOCRACY, (Jeffrey Tulis and Stephen Macedo, eds.), Princeton University Press, 2010.
137
S P AIYER, FEDERALISM AND SOCIAL CHANGE, The Nature of Federal Government, Asia Publishing House, 1961.
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similar to what Aiyer sees as ‗autonomy‘ being key to the concept of federalism. 138 Others like
Daniel Elagara and Ronald L Watts have defined federal system and federation (as opposed to
federalism in abstract) as mechanism based on distribution of power, which have internal
autonomy but constitute a political unity—thus sharing sovereignty.139
Dicey elaborates that a federal state can come into existence only if two conditions are
fulfilled: firstly, there must be some minimum commonality between the peoples of the federal
constituent units to be able to forge into a nation and secondly, such peoples of the units though
―must desire union, but not desire unity‖, i.e. coming together for common purposes but yet
retaining a distinct identity and autonomy.140

3. THEORISING ASYMMETRIC FEDERALISM: A TOOL TO UNDERSTAND

SPECIAL TREATMENT OF CERTAIN FEDERAL UNITS
As discussed in previous section, federalism is necessarily based upon equality,
independence and autonomy of federal constituent units in a federation. However despite this
formal equality, there will always be a difference in real terms between the punches different
states can throw. As can be seen in international relations, despite formal equality between the
countries, some are more equal than others when it comes to politics. Similarly, politics and
economics often determine the relative importance of a federal unit vis-à-vis others. It becomes
laughable to expect perfect equality in all spheres between the states and their treatment by the
centre. Herein comes the argument of special status, which seeks to nullify, or at least minimise
inequality, especially in economic terms that certain states face. Govind Rao and Nirvikar Singh
define asymmetric federalism as a form of federalism based upon ―unequal powers and
relationships in political, administrative and fiscal arrangements spheres between the units
constituting a federation.”141It has been also defined as “a situation in which one region of the
country enjoys a distinct form of autonomy, and often a distinct constitutional status, from other
138
Harpreet Kaur, Role of inter-governmental agencies in Indian federalism, (2012), Available at:
http://shodhganga.inflibnet.ac.in/bitstream/10603/3541/7/07_chapter%201.pdf (Last Accessed on: 04-04-2015).
139
DIVERSITY AND UNITY IN FEDERAL COUNTRIES: A GLOBAL DIALOGUE ON FEDERALISM, (Luis Moreno et al. eds.)
Vol.7, 2010.
140
Ibid.
141
M. Govinda Rao and Nirvikar Singh, Asymmetric federalism in India, UC Santa Cruz International Economics
Working Paper 04-08 (2004).

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parts”.142Ronald Watts defines it as a system where there is ―differentiation in the degrees of

autonomy and power among the constituent units.”143Asymmetrical federations have also been
described variously as ‗federacies‘, ‗partial federalization‘, ‗asymmetrical decentralisation‘ and
‗cantonisation‘. These asymmetry can be either vertical (between centre and state) or horizontal
(between one state and another).In Asymmetric federation, there is usually more than one
distribution system, because there are several kinds of constituent units vested with different
levels of powers.144
However, the question arises that is whether such asymmetric federalism is a true for of
federalism at all? As noted earlier autonomy within their defined spheres and equal power to
states is the essence and the grundnorm of federalism. In that light, how can unequal treatment of
different federal units be reconciled with principles of federalism? It can be easily be seen as the
political stick and carrot policy in form of Union‘s discretionary funding to states in garb of
asymmetric federalism can easily undermine states‘ autonomy and authority. In my opinion,
asymmetric federalism can be justified as a facet of federalism only as only as it does not affect
the autonomy of the States. The states‘ autonomy within their sphere of competence and the
fiscal resources they need to carry out such functions have to be secured in a symmetrical and
equal way and there can be no asymmetry as regards them. However, just as substantive equality
demands special affirmative action for the disadvantaged, similarly many backward states (or
states having special needs) may need additional finance and powers to match up to the level of
other States—there helping them attain actual, not just, formal equality with them. Hence a
substantive conception of state equality can in fact be invoked to justify asymmetric federalism
as a strong measure to achieve a federal polity where the units are truly equal.
It is important to understand the purpose of federalism, in order to examine desirability of
asymmetry in federal relations. Karmis and Norman rightly point out that one of the key

142
John McGarry, Asymmetrical Federalism and the Plurinational State, in THIRD INTERNATIONAL CONFERENCE ON
FEDERALISM: TURNING DIVERSITY INTO HARMONY – SHARING BEST PRACTICES (F. Geerkens ed., Dept. of Foreign
Affairs: Brussels, 2006): 302-325.
143
Ronald L. Watts, A Comparative Perspective on Asymmetry in Federations, Institute of Intergovernmental
Relations, School of Policy Studies, Queen University, 2005, Available at:
http://www.queensu.ca/iigr/WorkingPapers/asymmetricfederalism/Watts2005.pdf (Last Accessed at: 04-04-2015).
144
Peter Pernthaler, Asymmetric Federalism as a Comprehensive Framework of Regional Autonomy, in HANDBOOK
OF FEDERAL COUNTRIES, (Ann L. Griffiths ed., 2002)472.
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objectives is that different communities may share states in which they have multiple identities
and affiliations and conduct their affairs with each other at peace, while at the same time
preserving their identities.145 Asymmetric relations can no doubt help in his preservation of
identities and conduct of affairs with each other on an equal footing. For instance, the tribal
regions definitely need special institutions and greater autonomy for preservation of their cultural
identity. As Thomas Heuglin notes, one of the very purpose of federalism is to
accommodate “asymmetrical diversity within a single polity”.146However still this concept has
proved highly controversial. Heuglin three major challenges to idea of asymmetric federalism:
first is that it is antithetical to norms of liberal equality—this arguably shallow argument can be
easily be dispatched by the above argument of substantive equality. Secondly, historical
compromise resulting in federalism is said to require same level of economic and monetary and
other powers given to all constituent units equally. This argument again is historically incorrect
because incorporation of constituent units may not be made on equal terms in all cases. Kashmir
in India and Quebec in Canada are cases in point. Thirdly, a more pragmatic objection is that
even is asymmetry is acknowledged as necessary there will be considerable tension regarding
determination of what is a proper balance between ―desirable symmetry and
unavoidable asymmetry‖ in a particular case.147 This is a major point and any asymmetry must
strike this balance, lest the whole federation be undermined. However in my opinion, there
cannot be many general principles to strike this balance and it must depend upon situation and
needs of every particular federation. Only principle that can be formulated is that a minimum
level of autonomy must be symmetrically ensured.
Others have underlined the fears that asymmetrical arrangements may lead to secessionist
or separatist tendencies. For instance Charles Tarlton (credited with coining the phrase

145
DMITRIOSKARMIS AND WAYNE J. NORMAN, THEORIES OF FEDERALISM: A READER, Palgrave Macmillan, 2005;
Lloyd I. Rudolph and Susanne Hoeber Rudolph, Federalism as State Formation in India: A Theory of Shared and
Negotiated Sovereignty, International Political Science Review, 31(5) 1–21.
146
Thomas O. Hueglin, Lived but not Loved: Asymmetrical Tensions in Canadian Federalism, Available at:
http://www.forumfed.org/en/pubs/conference/rome/Hueglin%20-
%20Assymetrical%20Federalism%20Canada.pdf(Last Accessed on: 04-04-2015).
147
Ibid.
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‗asymmetric federalism‘ in 1965), in the context of Indian federal system opines that these
asymmetrical federal arrangements are highly prone to separatist and secessionist tendencies.148
However, John McGarry, in his extensive comparative study of asymmetrical federalism
concludes that such arrangement per se need not lead to secession. Whether accommodation or
secession ensues depend on lot of external factors such as contingency of politics and how the
constitution is actually worked, motivations of the parties involved, and in the details of the
arrangements or autonomy. Just as Consociational power sharing can be important to preserve
the unity in conflict ridden states; similarly McGarry concludes that asymmetric federalism can
be very important in containing and managing conflicts in culturally diverse states. Thus there
can be in fact a ‗necessity‘ for asymmetrical federal arrangements in certain cases. 149 The need
for asymmetric arrangements is most acute in cases of ―plurinational states‖ 150 where the cultural
minority communities want greater recognition of their culture and nationality and hence demand
for asymmetry.151Rekha Saxena in her comparative article, emphasizing on performance of
India, Belgium and Canada concludes that the political experience of all multinational
federations shows that some degree of constitutional asymmetry is in fact essential for enduring
federations.152
Some other argue that constitutional asymmetry is a must to achieve equity in context of
multicultural and multinational countries for the community protection and politics of
recognition. Michael Burgess, taking a contrary view to Tarlton, and a view similar to McGarry,
concludes that asymmetric federalism cannot be said to be leading to secessionist movements in

148
Charles D. Tarlton, Symmetry and asymmetry as elements of federalism: A theoretical speculation, The Journal of
Politics, Vol. 27, no. 04 (1965), 861-874.
149
Katharine Adeney, The “Necessity” of Asymmetrical Federalism?,Ethnopolitics: Formerly Global Review of
Ethnopolitics, 6:1, 117- 120 Available at:
https://www.academia.edu/736432/Comment_The_Necessity_of_Asymmetrical_Federalism(Last Accessed on: 04-
04-2015).
150
John McGarry, Asymmetrical Federalism and the Plurinational State, in THIRD INTERNATIONAL
CONFERENCE ON FEDERALISM: TURNING DIVERSITY INTO HARMONY – SHARING BEST
PRACTICES (F. Geerkens ed., Dept. of Foreign Affairs: Brussels, 2006): 302-325.
151
Ibid.
152
RekhaSaxena, Is India a Case of Asymmetrical Federalism?, Economic & Political Weekly,Vol 47, Issue 2
(2012), 70-75.
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all cases and historical and cultural factors determine whether the accommodative tendencies or
secessionist tendencies have greater sway.153
Rao and Singh, rightly distinguish asymmetry into one in which the asymmetry is
regulated by transparent and fair rules (sometimes built in into constitutional arrangement or by
conventions) and the other one in which asymmetry is discretionary and non-transparent.154 The
former is the kind of asymmetric arrangement which can strengthen federalism (though not
always—rule based asymmetry unless linked with questions of substantive equality and entrench
a feeling of exclusion and undermine federalism). However, the latter is a result of real politik
and political arm-twisting and often can lead to feeling of being ignored or left out by certain
states and undermine federalism.
Riker‘s analysis shows, as Rao and Singh point out, that demand for special status and
asymmetric treatment can bear out from several objectives, most common being, greater
economic opportunities; preserving special group identities (like in certain North Eastern states
of India); preserving freedom and autonomy vis-à-vis other larger and powerful states;
maximising the political influence of the state.155 They rightly note that even bargaining by
certain states, for their inclusion into the federation can lead to asymmetry. Example of this is
Jammu and Kashmir, whose inclusion into India was preceded by political bargaining and the
instrument of accession laid down special conditions which are now reflected in Article 370156 of
Indian Constitution.
The above is an example of asymmetry designed at the institutional level of the
Constitution. However, most common asymmetries are not a result of constitutional design,
rather than political and economic exigencies. Central Funding as per the recommendation of
planning commission, greater funding to naxal-affected states, funding for poverty-stricken
regions within a state are all instances of this. It also suggest that in such exigencies,
discretionary asymmetry can be useful tool to achieve a balanced development of the country—

153
Ibid; MICHEAL BURGESS, COMPARATIVE FEDERALISM: THEORY AND PRACTICE, Routledge, 2006.
154
M. Govinda Rao and Nirvikar Singh, Asymmetric federalism in India, UC Santa Cruz International Economics
Working Paper 04-08 (2004).
155
Ibid; WILLIAM H. RIKER, FEDERALISM: ORIGIN, OPERATION, MAINTENANCE, Little Brown,1964.
156
Constitution of India, 1950.
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both intra state and interstate. However, such ―De facto asymmetry‖157 however must be clear
and transparent for not to degenerate into inter-state squabbling and politicking.

4. A COMPARISON OF ASYMMETRIC FEDERATIONS ACROSS THE WORLD

Canada, India, Malaysia and Belgium are most commonly cited as example of
constitutional asymmetric federations.158Ronald Watts enumerates the examples of Canada,
Belgium, India, Malaysia, Russia and Spain in his examples of federations with strong
asymmetric elements. He criticises the notion that just because the classical cases of
federalism—United States, Switzerland and Australia are largely symmetrical is nature,
federalism as a rule must be symmetrical.159
He describes two different approaches to constitutional asymmetry found within world
constitutions.160 First approach is to increase the distribution of federal powers in favour of
certain states. This approach, he notes, are found in India; in Malaysia, in the Borneo states of
Sabah and Sarwak; in Belgium, in terms of recognition of different kinds of constitutional units
and different jurisdictions of Regional Council and Community Councils. Example of Quebec in
Canada, which has its own civil law conforms to this pattern. The second approach is where
there is formal symmetry for all constituent units, but creates a framework which enables certain
states to exercise asymmetric power. Examples of this includes Spain where in case of
Autonomous Communities there is provision for recognizing variations in form of Statute of
Autonomy, that is allowed to each Autonomous Community. These Statues can be tailor made as
per negotiations between the Central and the Regional leaders. Similarly, Russia after the fall if
Soviet Union, concluded treaties with over 40 out of 89 constituent units providing for different
scope of their legislative and executive power. Even in otherwise unitary countries like UK, now

157
Id.
158
Ronald L. Watts, A Comparative Perspective on Asymmetry in Federations, Institute of Intergovernmental
Relations, School of Policy Studies, Queen University, 2005, Available at:
http://www.queensu.ca/iigr/WorkingPapers/asymmetricfederalism/Watts2005.pdf (Last Accessed at: 04-04-2015);
RekhaSaxena, Is India a Case of Asymmetrical Federalism?, Economic & Political Weekly,Vol 47, Issue 2 (2012),
70-75.
159
Ronald L. Watts, A Comparative Perspective on Asymmetry in Federations, Institute of Intergovernmental
Relations, School of Policy Studies, Queen University, 2005, Available at:
http://www.queensu.ca/iigr/WorkingPapers/asymmetricfederalism/Watts2005.pdf (Last Accessed at: 04-04-2015).
160
Ibid.
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elements of asymmetric federalism can be found, such as different legislative powers in

Scotland, Wales and Northern Ireland. Similarly, Italy has 5 special regions, along with 17
ordinary regions.161
Heuglin notes that in Canada, asymmetric federalism is practiced, especially in case of
Quebec, keeping in mind commitment to tax harmonization and equity in access to public
services.162 However he emphasises that asymmetric federalism has been practiced in such a way
which does not threaten vital interests of other constituent units, and nothing has been done
which would undermine national cohesion and special status that has been given to Quebec is
done in such a way as to not give it an unfair advantage and rather help driver development of
rest of the country.163This goes to serve that asymmetric federalism will be most successful if it
is done in spirit of accommodation and without sacrificing the interest of others.
However, Watts‘ study also shows that Asymmetry need not be success in all cases.
Failure of Federations like West Indies, Rhodesia and Nyasaland, Yugoslavia, Pakistan (pre-
1971); Czechoslovakia Nigeria also serve to provide a cautionary tale and need to tailor
federation carefully towards local needs and without disadvantaging others gravely. Watts also
makes an important observation that pressures for constitutional asymmetry can induce counter
pressures for constitutional symmetry and the tension between them can become an important
question in political dynamics of the federation. The truth of this statement is amply displayed in
case of India, where regional and coalition politics breeds asymmetry on one hand, whereas on
other hand renewal of national parties like BJP also show a trend towards symmetry.

5. PRACTICE OF ASYMMETRIC FEDERALISM IN INDIA

In India this asymmetry can be similarly understood in two parts: one that is
constitutionally designed and other that is politically practiced. Ronald L. Watts believes that
there is distinction between ‗political asymmetry,‘ (or de facto asymmetry) which is found in
practically all federations (this comes from relative power and influence, different constituent

161
Id.
162
Thomas O. Hueglin, Lived but not Loved: Asymmetrical Tensions in Canadian Federalism, Available at:
http://www.forumfed.org/en/pubs/conference/rome/Hueglin%20-%20Assymetrical%20Federalism%20Canada.pdf
(Last Accessed on: 04-04-2015).
163
Ibid.
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units wield within a federation) and ‗constitutional asymmetry‘ (de jure asymmetry), a rarer
form, in which constitution itself designs and assigns different powers to some special
constituent units.164 The instance of latter is Canada, where Quebec had special powers regarding
language, education and the civil law of Quebec.
Watts‘ formulation seems to discount political asymmetry as an analytical category of
asymmetric federalism. I argue that it is not the case. It is true that some form of political
asymmetry can be found in all federations, but beyond a threshold even practice of political
asymmetry can affect federal structure and spirit in a significant way. So when does sustained
practice of political asymmetry become a federal issue, is at the end a threshold question,
depending upon the political economy of the concerned federation. Adopting Watts‘ categories
of political and constitutional asymmetries, it is clear that both kind of asymmetries are found in
India.

6. ASYMMETRY OF CONSTITUTIONAL DESIGN

Rekha Saxena, applying these categories gives example of Rajya Sabha which is based
upon principle of population rather than formal equality of states (resulting in states like UP
having 31 seats while other states like Meghalaya, Goa, Miozoram having just one seat each) and
concludes that the same is an example of political asymmetry. 165 In my opinion, Rajya Sabha
example is more in nature of constitutional asymmetry as it has been formed in such asymmetric
way as a matter of constitutional design, rather than political practice.
In India, Asymmetry of constitutional design can be found scattered across the
constitution. Special position of Kashmir vide Article 370 is the most prominent example.
Article 370 (bii) is worthy of special mention which limits the law making power of Indian
Parliament over the state to only foreign affairs, communication and defence.
Apart from Kashmir states with large tribal population, such as in the north east have
greater administrative and legislative autonomy vide Article 244 and 244A read with fifth and
164
Centre for Constitutional Studies, University of Alberta, Asymmetrical Federalism, Available at:
http://ualawccsprod.srv.ualberta.ca/ccs/index.php/constitutional-keywords/491-asymmetrical-federalism (Last
Accessed on: 04-04-2015); Ronald Watts, AsymmetricalDecentralization:FunctionalorDsyfunctional,
IndianJournalofFederal Studies, 2004.
165
RekhaSaxena, Is India a Case of Asymmetrical Federalism?, Economic & Political Weekly,Vol 47, Issue 2
(2012), 70-75.
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sixth schedule,166 for preservation of their cultural identity and greater development. Under
Article 371 A and E consent from legislatures of Nagaland and Mizoram is required to extend a
parliamentary statute to those states if it affects religious and social practices of Nagas and Mizos
respectively or their customary law or administration of civil/criminal justice concerning these
customary laws, or land ownership or transfer in these states.167Tillin agrees that the
constitutional position of north east states exhibit true asymmetrical federalism.168
The lesson that may be drawn from these instances is that identity, backwardness or
similar objective criteria based asymmetry is less problematic and can further the federal project.
However, asymmetry granted on sole basis of political bargain can lead to dissatisfaction and
make federalism difficult to sustain. The example of Kashmir is instance of the long lasting
discontent and controversy that arises due to giving one state a special status without adequate
link to questions of substantive equality, and merely due to political bargaining. The fact that
special status of Kashmir is so controversial, as opposed to other special status of other federal
units such as that in the North-east (Article 371A to E; 244, 244A) or under fifth and sixth
schedule, suggests clearly that special status arising from needs of special identity, development
or similar substantive equality questions furthers the federal project, while special status granted
merely due to political reasons often leads to discontent among other federal units and may
sometimes undermine federal project.
India has several different other kinds of asymmetries such as the unique concept of union
territories and asymmetries between them (with Delhi and Puducherry having their own
legislatures with powers over concurrent jurisdiction and having their chief ministers).
There are other specific asymmetries169 as well, especially with regard to administration of
tribal areas, intra-state regional disparities, law and order situation etc.170For example the
governors of Maharashtra and Gujarat have been assigned with ―special responsibility‖ to create
developmental boards backward regions of those states with a view to equitable allocate
166
Constitution of India, 1950, Part X: Scheduled and Tribal Areas.
167
Constitution of India, 1950, Part XXI: Temporary, Transitional and Special Provisions.
168
L. Tillin, United in Diversity? Asymmetry in Indian Federalism,Publius, 37(1), (2007) 1–25.
169
RekhaSaxena, Is India a Case of Asymmetrical Federalism?, Economic & Political Weekly,Vol 47, Issue 2
(2012), 70-75.
170
Constitution of India, 1950, Part XXI: Temporary, Transitional and Special Provisions, Article 371, 371B, 371C,
371D, 371E, 371F, 371H and 371 I.
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resources for their development and to make them par with other regions of the state.171 This
shows a special status given to parts within a same state and could act as a normative basis of
giving special category status to some states. Similarly, the President has constitutional
obligation to ensure ―equitable opportunities and facilities‖ for certain communities in Andhra
Pradesh and to set up a committee of the legislative assembly in Assam and Manipur consisting
of members elected from tribal areas to ensure their welfare.172 Similarly, Governor of Arunachal
Pradesh has ―special responsibility with respect to law and order‖ in exercise of this he has to
exercise his personal judgment.173It is noteworthy that most of these provisions are in the Part
XXI of the Constitution dealing with ―Temporary, Transitional and Special Provisions‖. This
suggests that once the substantive equality of these regions is attain and their special interests
safeguards, these asymmetries may be removed and these states may be brought on equal footing
as other states.

7. ADMINISTRATIVE AND POLITICAL ‘DE FACTO’ ASYMMETRY:

QUESTION OF SPECIAL CATEGORY STATUS
The most contentious kind of asymmetry is the asymmetry in distribution of national and
central resources and the so-called grant of ‗special category‘ to the states. It is a well-known
fact that in terms of development the Indian States are nowhere on equal basis. Without giving
facts and figures to illustrate this (which are unnecessary to this paper) let it suffice to say that
while certain states like Kerala, Andhra Pradesh etc. have been high on human development and
economic growth, other states like Bihar, Odisha etc. have sorely lagged behind and there is
consensus to tackle these pockets of high-backwardness in a targeted manner.
At this juncture it is useful to examine the history and concept of ‗special category states‘
in India. It is noteworthy that this category is not of constitutional design; rather it is a result of
Indian Planning system. Origins of special category can be seen in DR Gadgil report, as per
which 3 states—namely Assam, Nagaland and Jammu & Kashmir were granted special category
status. This Special category was adopted for 4th and 5th five year plans. Persistent demand for
transparent formula based allocation of resources between states led to the Gadgil formula,
171
Constitution of India, 1950, Part XXI: Temporary, Transitional and Special Provisions, Article 371.
172
Constitution of India, 1950, Part XXI: Temporary, Transitional and Special Provisions, Article 371A-C.
173
Constitution of India, 1950, Part XXI: Temporary, Transitional and Special Provisions, Article 371-H.
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showing the need for rule based asymmetry in a federation.174The Gadgil Formula gave weight
to factors like population; adequacy of States‘ Taxation effort; fiscal performance; per capita
income of the state; irrigation and power project and special problems. 175A modified Gadgil
formula was accepted by National Development Council in 1980 post the 5th five year plan.
Later in 1991, this formula and the weights attached were revised and was renamed ―Gadgil-
Mukerji Formula‖.176 The Gadgil Mukerji formula has been in use since 8th five year plan. Based
upon criteria of harsh terrain, backwardness and social problems, the aforementioned 3 states
were given special category status.177 Now the special category status has been extended to total
11 states—the seven sisters in North East, Sikkim, J&K, Himachal Pradesh and Uttarakhand.
The special category states get significantly higher budgetary support from the Centre.
Especially, in realm of planned expenditure, these states get 30% earmarked of Centre‘s gross
budgetary support. They get Normal Central Assistance (NCA—of the 3 categories of central
assistance formulated by planning commission) in form of 90% grant and 10% loan (whereas
other non-special states get the same in 70:30 ratio).178 They also get important tax concessions
like that on central excise helping them attract investment and improving their manufacturing
base. Currently, Chhattisgarh, Jharkhand, Odisha, Rajasthan and Bihar are demanding the special
category status.
The Criteria behind determining special state status such as harsh terrain, extreme
backwardness, strategic location, provide a semblance of objectivity in its determination.179Still,
as evident, these criteria could be subjectively interpreted and leave a lot of room for discretion.

174
Hemanta Kumar Nayak, Conceptual Clarity on Special Category Status, Odisha Review, May 2013, Available
at:http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/54-56.pdf(Last accessed on: 04-04-2015).
175
The Gadgil Formula takes into account: (i) Population [60%] (ii) Per Capita Income (PCI) [10%] (iii) Tax Effort
[10%] (iv) On-going Irrigation & Power Projects [10%] and (v) Special Problems [10%].
176
Components of this formula are: population (25%), area (10%), fiscal capacity (47.5%) and fiscal discipline
(17.5%).
177
Hemanta Kumar Nayak, Conceptual Clarity on Special Category Status, Odisha Review, May 2013, Available at:
http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/54-56.pdf (Last accessed on: 04-04-2015).
178
Virendra Singh Thakur, States with Special Category Status in India: Concept and Benefits, Available
at:http://gnlu.ac.in/bc/States%20with%20Special%20Category%20Status%20in%20India%20Concept%20and%20
Benefits%20VT.pdf(Last Accessed on: 04-04-2015).
179
Ibid; Hemanta Kumar Nayak, Conceptual Clarity on Special Category Status, Odisha Review, May 2013,
Available at: http://odisha.gov.in/e-magazine/Orissareview/2013/may/engpdf/54-56.pdf (Last accessed on: 04-04-
2015).
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Although many have raised doubts over soundness of this formula and pressed for a better and
more objective criterion.
The story of federalism is a paradox. SP Aiyer has rightly noted that India is a unitary
constitution exhibiting federal practice.180 Theorising federalism in terms of autonomy, he rightly
notes that either the constitution grants the federal units autonomy or it does not. There cannot be
any middle grounds. So he rightly rejects quasi federalism as a conceptual category, rather he
views it as a transitional phase—a matter of practice—a phase in which Indian polity is in right
now. On one hand the Supreme Court has declared in State of West Bengal v. Union of India 181
that the sovereignty rests with the Union alone (which is antithetical to federalism, which must
necessarily share sovereignty), essentially confirming to the view that India is essentially unitary.
The court opined rightly, in my opinion, that India is not a traditional federation, rather is one
where the Union is primary and the states are secondary—in other words, India is no federation
at all. The unitary view of Indian Constitution were affirmed again in State of Karnataka v.
Union of India,182 (which explicitly held that “our constitution has, despite whatever federalism
may be found in its structure, so strongly unitary-features also in it”) and State of Rajasthan v.
Union of India,183 which made satisfaction of President for imposing emergency etc. beyond
judicial review and upheld Union‘s power to issue directives to state. This case was a grievous
blow against even a semblance of division of power and federalism in India. Thankfully that
proposition in state of Rajasthan has been overruled in SR Bommai v. Union of India.184
Interestingly SR Bommai holds that the federal structure of the Constitution is part of our Basic
Structure which cannot be amended and further made aid and advice to a limited extent subject
to Judicial Review. However even then Justice Ahmedi, emphasising on absence of use of the
word federal in our Constitution and strongly unitary provisions like Article 2 and 3 (by virtue of
which even the federal units are not indestructible) to raise doubts our Constitution is truly
federal and rather described it as quasi federal or unitary. 185 This raises an interesting situation

180
S P AIYER, FEDERALISM AND SOCIAL CHANGE, The Nature of Federal Government, Asia Publishing House, 1961.
181
State of West Bengal v. Union of India, A.I.R. 1963 S.C. 1241.
182
State of Karnataka v. Union of India, A.I.R. 1978 S.C. 68.
183
State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361.
184
S.R. Bommai v. Union of India, A.I.R. 1994 S.C. 1918.
185
Ibid, opinion of Ahmedi J.
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where although India is strictly speaking not a federation, but the federal structures that are found
are not subject to change for being Basic Structure. This is not the place for me to elaborate
further on nature federalism under Indian Constitution, (that has been done by many others,
including Sarkaria Commission and Rajamannar Commission) for paucity of space. However the
purpose behind this brief examination of Indian federalism to understand why special status and
asymmetric federalism can both be a matter of importance for states and yet be highly
controverted. States‘ perennial dependence on Union for adequate funds has left states vying
with each other for funds, if necessary by special status. These questions have led to ‗politics of
complaint‘ against Centre. For example, Mr. Naveen Patnaik, Chief Minister of Odisha has been
crying hoarse against what he calls ‗step-motherly treatment‘ of Centre against the State by
denying it funds.186 Most states have the same complaint. In this era of increased regional
politics, to grow as one nation and achieve inclusive growth for all states, less unitary tendencies
and more federal cooperation is required. For this, a skilful and objective distribution of Central
funds, special status based on truly objective criteria is needed. In short, asymmetric federalism
of the sort practiced in Canada—that is, based upon actual special needs of States and without
sacrificing vital interests of others is needed. Then only can India stay one as one Country,
despite being plurinational.
Viewed through the lens of asymmetric federalism, the practice of special category status
to certain states can indeed by justified by reference to principle of substantive equality and
special needs of different regions. As Heuglin‘s analysis of asymmetric federalism in Canada
shows, such practices can be sustained only if it does not violate the vital interests of other
constituent units not unfairly privileges the special states. A more objective criteria is required
for formulation granting of special category status. The dissatisfaction with current formula is
evident from many states calling for its revision, most prominently Odisha and Bihar. Also use
of special category status to achieve inclusive development and addressing special needs to
certain states seems to be frustrated when as many as 11 out of 29 states are given this status.
Hence it is need of the hour to have a reasoned debate and discussion with all federal units and

186
Debabrata Mohanty, Odisha CM Naveen Patnaik accuses Centre of „step-motherly‟ treatment, Available at:
http://indianexpress.com/article/india/india-others/odisha-cm-naveen-patnaik-accuses-centre-of-step-motherly-
treatment/ (Last Accessed on:04-04-2015).
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states and create consensus around a new objective formula for granting special category.
Another solution also would be do away with this category all together and rather rationalise the
federal budgetary support to states on basis of a more detailed set of criteria than Gadgil-Mukerji
formula with less room for backdoor politics affecting federal grants. Then only the federation
will be strengthened.

CONCLUSION
Exploring the many varied understandings of the concept of Federalism and Asymmetric
federalism in particular it can be safely concluded that asymmetry in federations can help
bridging the gaps between different federal constituent units. However, if not done keeping every
State‘s interest it can hurt the federal project more than it can help. Special Category Status, a
form of Political ‗De-facto‘ Asymmetry in India, has to be kept as a form of asymmetry only if it
is granted on very specific objective basis to further the federal project. Other alternative is to
remove this category altogether and make every federal funding objective and rule based, with
the rules themselves accounting for special needs of certain states. Funding is the most important
part of federalism, without which no state can carry out its functions nor exercise its powers. So
a formal division of powers is meaningless without fiscal federalism safeguarding sources of
income for states. Without going into debate of fiscal federalism, state taxes and GST, it will be
enough to say that need for Central funding will never be obviated and hence the same should be
based on clear, objective and fair principles, which alone will build the country into a smooth
working federation.

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EUTHANASIA – A DEBATE OVER DEATH

AGREEMENTS & CONTRADICTIONS

SONAL VYAS

In India, a country of beliefs and customs the issue of life and death is of great
significance and a debate over its importance is still a taboo which left the issue of euthanasia
un-discussed and ignored. However, the growing awareness and debate over its repercussions
and effects all over the world and the demand of the terminally-ill patients throw the light to the
need to ponder over this sensitive topic as its not merely a matter of legislation but an issue of
life and death for, capable of liberating the prolonged suffers to a peaceful death. In the context
of its growing significance it is important to fully understand its meaning and move back to the
incidents which hold the future of its acceptance in the coming era of advanced technology and
development.

I'm not afraid of being dead. I'm just afraid of what you might have to go through to get there.”

― Pamela Bone (A reputed Journalist)

One of the most important public policy debates today revolves around the issue of
euthanasia and assisted suicide. This ultimate source of pain relief today is not merely related to
its significance but has turned into a tool to change and affect lives either in a positive way or the
way other. Before analyzing what implications it has on the present life and medical system lets
go into what it‘s all about.
Euthanasia is an act intended to cause a painless and merciful death to a person who is
suffering from an incurable and painful disease or an irreversible coma. The term ‗Euthanasia‘ is
derived from the Greek words which literally means ―good death‖ (Eu= Good; Thanatos=Death).
The first recorded use of the word euthanasia was by Suetonius, a Roman historian, to describe
the death of Augustus Caesar.


1st Year, B.A. L.L.B (Hons.), University Five Year Law College, Jaipur.

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Complexity of the term is more apparent when we encounter that it‘s a term with several
varied implications. We have voluntary euthanasia (Euthanasia conducted with the consent of the
patient), non-voluntary euthanasia (Euthanasia conducted where the consent of the patient is
unavailable), involuntary euthanasia (Euthanasia conducted against the will of the patient),
passive euthanasia (withholding of common treatments, such as antibiotics, necessary for the
continuance of life) and active euthanasia ( the use of lethal substances or forces, such as
administering a lethal injection, to kill). These terms are no doubt misleading.
The main reason behind its being one of the most debated issues is its use or misuse. Many
medical practitioners, social workers, researchers and even some patients hold varied and
opposed view over its significance and legality. The question of its legality is very sensitive and
many countries have enacted different laws concerning assisted suicide or euthanasia.

1. EUTHANASIA’S STATUS IN COUNTRIES AROUND THE WORLD

In 20th century the efforts of legalization of euthanasia began in the USA. The New York
State Medical Association recommended gentle and easy death. Even more active euthanasia
proposals came to Ohio and Iowa state legislatures in 1906 and 1907 but these proposals were
rejected. In this book, authors Alfred Hoche, M.D., a professor of psychiatry at the University of
Freiburg, and Karl Binding, a professor of law from the University of Leipzig, also argued that
patients who ask for "death assistance" should, under very carefully controlled conditions, be
able to obtain it from a physician. Alfred Hoche also wrote an essay, which he published as
"Permitting the Destruction of Life Not Worthy of Life." It embraced euthanasia as a proper and
legal medical procedure to kill the weak and vulnerable so as not to taint the human gene. In
2000, The Netherlands approved voluntary euthanasia. The Dutch law allowing voluntary
euthanasia and physician-assisted suicide took effect on the 1st of February, 2002. For twenty
years previously, it had been permitted under guidelines. In 2002 Belgium passed a similar law
to the Dutch, allowing both voluntary euthanasia and physician-assisted suicide. Belgium moved
a step further to extent the effect of euthanasia to children. While in India the issue of euthanasia
has received various cold responses and the legality is restricted to the passive euthanasia only.

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Euthanasia policies have also been developed by a variety of NGOs, most notably medical
associations and advocacy organizations. As of 2015, euthanasia in its complete form is legal
only in the Netherlands, Belgium, and Luxembourg.
Assisted suicide is legal in Switzerland, Germany, Albania, Colombia, Japan and in
the US states of Washington, Oregon, Vermont, New Mexico and Montana. Euthanasia was
criminalized in Mexico, Thailand, the Northern Territory of Australia and the US State of
California.

2. ARGUMENTS CONCERNING EUTHANASIA

To put things in right perspective it is necessary to evaluate the arguments of both the sides
– advocating and opposing the need and issue of legality of euthanasia.
Before the industrial and scientific revolution, the scientists had not invented the artificial
ways of keeping a terminally ill patient alive, like ventilators, heart lung machines, artificial
feeding, etc. Such patients would have naturally died during the ordinary course of nature. With
the scientific revolution, there was better and in-depth understanding of the human body.
Simultaneously there was advent of new technology and machines, through which it is possible
to prolong the life. Even though the patients are kept alive, often they will be in extreme physical
pain and suffering (emotional, social and financial). At this stage let‘s reiterate that these
advanced intensive care procedures which we are referring here, will by no means cure/control
the disease, but it will only prolong the agony as well as existence of terminally ill patients.
According to The Medical Treatment of Terminally Ill Patients (Protection of Patients and
Medical Practitioners) Bill 2006, ‗terminal illness‘ means – (i) such illness, injury or
degeneration of physical or mental condition which is causing extreme pain and suffering to the
patients and which, according to reasonable medical opinion, will inevitably cause the untimely
death of the patient concerned, or (ii) which has caused a ‗persistent and irreversible vegetative‘
condition under which no meaningful existence of life is possible for the patient. Thus according
to it, the patient must be suffering some ailment causing extreme pain and suffering, which
according to equitable and unbiased medical opinion, will lead to his death sooner or later.
Second scenario is when the patient has slipped into Irreversible Permanent Vegetative State.
These patients without active lifesaving mechanisms or life prolonging procedures will die a

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natural death. Thus one would like to ask would it be reasonable to simply keep the patient alive
if he is suffering from intractable pain, psychological and emotional distress just for the sake of
keeping him alive. And in a place like India where most of its citizens meet their health expenses
from their own pockets, continuing such expensive treatments results in considerable financial
burden on poor households, often pushing them deeper into poverty. Even if the patient is having
medical insurance it is usually inadequate. Poignantly our government health sector spending is
perilously inadequate and is over burdened by huge population putting strain on the limited
government resources. The WHO Report mentioned that in India about 87% of total health
expenditure is from private spending, out of this, 84.6% is out-of-pocket expenditure. Thus one
cannot disagree from the fact that there is genuine need for Passive Euthanasia with definitive,
unbiased protocols and safeguards.
On the one side of the debate, there is a strong argument that people should have the right
to terminate their lives, whenever, and however they may wish. Many supporters of voluntary
euthanasia believe that everyone has the right to control their body and life, and should be free to
decide at what time, and in which manner they will die. The idea behind this is that unnecessary
restraints on human rights should be avoided. It was said in an article in the Independent
newspaper in March 2002, that; ―In cases where there are no dependants who might exert
pressure one way or the other, the right of the individual to choose should be paramount. So long
as the patient is lucid, and his or her intent is clear beyond doubt, there need be no further
questions.‖ Since the right to life gives a person the right to not be killed if they do not want to,
proponents of euthanasia argue that respect for this right will prevent euthanasia being misused,
as killing a patient without their permission would violate their human rights. It can also be
argued that because death is a private matter, if there is no harm to any other people, there is no
right to deny someone‗s wish to die. Supporters of this believe that if euthanasia promotes the
best interests of all the parties concerned, and no human rights are violated, then it is morally
acceptable for voluntary euthanasia to take place. Some supporters of the legalization of
euthanasia have put forward point, they argue that, People generally avoid death because they
enjoy and value being alive, but in the case of a terminally ill patient, they may be in a lot of
discomfort and pain, and are unable to enjoy their life. This may cause the patient to devalue
their life, and the patient may decide that they do not wish to endure their suffering any longer.
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A strong ethical argument against the use of euthanasia is that it could soon become a
slippery slope, with the legalization of involuntary euthanasia following it. Lord Walton, the
chairman of a House of Lords committee on medical ethics looking into euthanasia spoke on the
subject: ―We concluded that it was virtually impossible to ensure that all acts of euthanasia were
truly voluntary and that any liberalisation of the law in the United Kingdom could not be
abused.‖ Since involuntary euthanasia is indistinct from murder it would be impossible to
regulate, causing the danger of murderers not being brought to justice, due to their crimes being
passed off as involuntary euthanasia. There is also concern that doctors could end up killing very
sick patients without asking for their permission, and in the worst case scenario, begin to kill off
patients to free up beds in hospitals, or to save money. These situations show how dangerous it
could be to let the legalization of euthanasia lead into the legalization of involuntary euthanasia.

3. SOME PROPOSED SAFEGUARDS

Many people are opposed to legislation that would allow "end of life" choices. But our
concerns relating to abuses and protection of the vulnerable can be addressed by ensuring that
certain objective safeguard conditions are met prior to allowing a terminally ill individual from
exercising his or her right to die with dignity. Some of the safeguards include the following:
• The patient must be terminally ill.
• The patient must be an adult.
• The patient must be mentally competent.
• The patient must be in severe pain.
• Two independent physicians must be satisfied that the above conditions are present.
In conclusion, the only humane choice is to allow individuals who are suffering to choose
to end their suffering. Further, the discrepancies in the laws as they exist and how they are being
enforced have led to uncertainty. This uncertainty leaves the doctors, their patients and patient's
loved ones unprotected. If we do not address these issues openly and head-on, we will have
continued uncertainty and unregulated practice of euthanasia or assisted suicide with the fear of
prosecution hanging over the heads of all concerned. The goals of the medical profession should
continue to remain one of saving lives but this should not be at the expense of compassion and a
terminally ill individual's right to choose to end his or her life and die with dignity.
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A renowned Colombian novelist Gabriel García Márquez once wrote:

―That is not true, but we lack the moral authority to endorse them (acts of euthanasia). What
we do instead is what you have just seen. We commend the dying to Saint Hubert and tie them to
a pillar in order to prolong and intensify their suffering.‖

Euthanasia’s legal status in India

The law, though active in many countries, has been a sleeping giant in India, as euthanasia goes
on behind closed doors. The law awoke from its slumber in 1994 by way of a petition filed by P.
Rathinam directed against the constitutional validity of Section 309 IPC, which deals with
punishment for attempt to commit suicide. (Incidentally, suicide is legal in all states of USA.)
The Supreme Court ruled in favor of the petitioner, thereby legalizing suicide and rendering as
unconstitutional punishment for abetting of suicide. In this case a corollary was drawn (as a
passing reference or in legal terms an obiter dictum) between euthanasia and suicide. The
judgment stated that in cases of passive euthanasia, the consent of the patient (if he be in sound
mental condition) is one of the pre-requisites. So, if one could legally commit suicide, he could
also give consent for being allowed to die. It went on to say that if suicide was held to be legal,
the persons pleading for legal acceptance of passive euthanasia would have a winning point. This
judgment came as a shot in the arm for people supporting euthanasia.
However, whatever progress was there came to a grinding halt in 1996, and the state of
confusion returned. The same court now upheld the constitutional validity of Sections 309 and
306 thereby legalizing the same and thus criminalizing suicide and euthanasia in complete sense.
Euthanasia and suicide are different, distinguishing euthanasia from suicide, Lodha J. in Naresh
Marotrao Sakhre v. Union of India187, observed:

“Suicide by its very nature is an act of self-killing or self-destruction, an act of

terminating one‟s own act and without the aid or assistance of any other human
agency. Euthanasia or mercy killing on the other hand means and implies the
intervention of other human agency to end the life. Mercy killing thus is not
suicide and an attempt at mercy killing is not covered by the provisions of Section

187 1995 Cri L J 96 (Bom)

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309. The two concepts are both factually and legally distinct. Euthanasia or
mercy killing is nothing but homicide whatever the circumstances in which it is
affected.”

Legally speaking voluntary euthanasia is illegal as it can be interpreted as attempt to

commit suicide which is punishable under Indian Penal Code section 309. The same was
advocated by the judgment from the Constitution Bench of the Apex Court in the year 1996 in
Gian Kaur vs. State of Punjab188 where it stated that the right to life guaranteed by Article 21 of
the Constitution does not include the right to die. Passive euthanasia is legal in India. On 7
March 2011 the Supreme Court of India legalised passive euthanasia by means of the withdrawal
of life support to patients in a permanent vegetative state. The decision was made as part of the
verdict in a case involving Aruna Shanbaug, who has been in a vegetative state for 37 years
at King Edward Memorial Hospital.

Aruna Ramachandra Shanbaug Case

Miss Aruna Shanbaug was working as Junior Nurse in King Edward Memorial (KEM)
Hospital, Mumbai, where in the year 1973, she was sexually assaulted by a ward boy. He
strangulated her with a dog chain and sodomized her. The resultant asphyxiation caused
irreversible injury to the brain causing Permanent Hypoxic Ischemic damage to her brain and
since then, she has been in a persistent vegetative state. After some time her family abandoned
her, but the nurses at the KEM hospital continued to take care of her. On 17th December 2010,
Pinki Virani claiming to be Aruna‘s friend (a social activistcum-journalist) made a plea in
Supreme Court for permitting euthanasia on Aruna Shanbaug. The Honorable Supreme Court
sought a report about Shanbaug‘s medical condition from the Govt. of Maharashtra. Three
member Expert Committee subsequently examined and opined that she was in a Permanent
Vegetative state. On 7th March 2011, the Apex Court, while rejecting Pinki Virani‘s plea for
active euthanasia, the court observed that ―the general legal position all over the world seems to
be that while active euthanasia is illegal unless there is legislation permitting it, passive
euthanasia is legal even without legislation provided certain conditions and safeguards are

188 (1996) 2 SCC 648

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maintained‖. The court also formulated guidelines for the passive euthanasia. This is important
in a country like India with its vast and culturally diverse population where unfortunately the
ethical standards of our society have descended to new low (as evidenced by social evil like
rampant sex selective abortions, honor killings, gang rapes etc.); there is an impending
possibility that people might misuse passive euthanasia in order to inherit the property etc.
Basic Guidelines issued by the Hon‘ble Court for Passive Euthanasia in Aruna Ramachandra
Shanbaug vs. Union of India189:
Whenever there is a need for passive euthanasia for some patient, permission has to be
obtained by the concerned High Court before life prolonging measures can be withheld. Here the
court will act as ‗parens patriae‘, a doctrine that grants the inherent power and authority of the
state to protect persons who are legally unable to act on their own behalf. The idea behind parens
patriae (father of the country) is that the King as the father of nation has a sacred duty to take
care of those who are unable to look after themselves. This is essential as in most cases where
the question of passive euthanasia arrives; the patients are often unconscious or otherwise unable
to communicate their intensions. Thus in order to prevent any sort of criminality by the patient‘s
relatives/friends or even treating doctors, courts will oversee and take the decision on behalf of
the patient. It is ultimately for the Courts to decide, as to what is in the best interest of the
patient, though the wishes of close relatives and next friend, and opinion of medical practitioners
should be given due weight age in formulating the decision. Hon‘ble Court also laid down
procedure to obtain such permission in detail. It also appreciated the entire staff of KEM
Hospital, Mumbai (including the retired staff) for their noble spirit and outstanding, exemplary
and unprecedented dedication in taking care of Aruna for so many long years. Having never
developed a single pressure sore or fracture, in spite of the fact that she was bedridden for almost
three and half decades is the standard testimonial of the same. It also opined that KEM hospital
staff members are her ‗true friends‘ and not Ms. Pinki Virani who has only visited her on few
occasions and written a book on her. Hence the decision to withhold life prolonging measures
rests on the hospital staff and not Ms. Pinki Virani. KEM staff members have expressed their

189 (2011) 4 SCC 454

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wish that Aruna Shanbaug should be allowed to live. However in future if they change their
mind, they will have to follow this procedure established by the Hon‘ble Apex Court.
On 11th August 2011, Law Commission submitted their report to Government of India
titled ‗Passive Euthanasia- A Relook‘. In the modified and revised Bill proposed by 19th Law
Commission, the procedures laid down are in line with the directions of the Supreme Court in
Aruna Ramachandra case. Salient features of these are as follows: ‗Best interests‘ include the
best interests of a patient : (i) who is an incompetent patient, or (ii) who is a competent patient
but who has not taken an informed decision, and are not limited to medical interests of the
patient but include ethical, social, moral, emotional and other welfare considerations.
‗Incompetent patient‘ means a patient who is a minor below the age of 18 years or person of
unsound mind or a patient who is unable to – (i) understand the information relevant to an
informed decision about his or her medical treatment; (ii) retain that information; (iii) use or
weigh that information as part of the process of making his or her informed decision; (iv) make
an informed decision because of impairment or a disturbance in the functioning of his or her
mind or brain; or (v) Communicate his or her informed decision (whether by speech, sign,
language or any other mode) as to medical treatment. ‗Competent patient‘ means a patient who
is not an incompetent patient. ‗Informed decision‘ means the decision as to continuance or
withholding or withdrawing medical treatment taken by a patient who is competent and who is,
or has been informed about- (i) the nature of his or her illness, (ii) any alternative form of
treatment that may be available, (iii) the consequences of those forms of treatment, and (iv) the
consequences of remaining untreated.

4. THE INDIAN REALITY AND EUTHANASIA’S FUTURE

It can be argued that in a country where the basic human rights of individuals are often left
unaddressed, illiteracy is rampant, more than half the population is not having access to potable
water, people die every day due to infections, and where medical assistance and care is less, for
the few people, issues related to euthanasia and physician-assisted suicide (PAS) are irrelevant.
However, India is a country of diversities across religious groups, educational status, and
cultures. In this background, the debate on euthanasia in India is more confusing as there is also
a law in this land that punishes individuals who even try to commit suicide. Medical science is
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progressing in India as in the rest of the world, and hence currently we are having devises that
can prolong life by artificial means. This may indirectly prolong terminal suffering and may also
prove to be very costly for the families of the subject in question. Hence, end-of-life issues are
becoming major ethical considerations in the modern-day medical science in India. The
proponents and the opponents of euthanasia and PAS are as active in India as in the rest of the
world. However, the Indian legislature does not seem to be sensitive to these. The landmark
Supreme Court judgment has provided a major boost to pro-euthanasia activists though it is a
long way to go before it becomes a law in the parliament. Moreover, concerns for its misuse
remain a major issue which ought to be addressed before it becomes a law in our country.
In the words of Mahatma Gandhi:

―Death is our friend, the truest of friends. He delivers us from agony. I do not want to die
of a creeping paralysis of my faculties — a defeated man.‖

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CONCEPTION OF CONSTITUTIONALISM AND FUNDAMENTAL

RIGHTS IN INDIA: AN ANALYTICAL PERSPECTIVE

SUNKLAN PORWAL

1. INTRODUCTION
Constitutionalism is the idea, often associated with the political theories of John Locke and
the founders of the American republic, that government can and should be legally limited in its
powers, and that its authority or legitimacy depends on its observing these limitations. This idea
brings with it a host of vexing questions of interest not only to legal scholars, but to anyone keen
to explore the legal and philosophical foundations of the state190.
Constitutionalism compels and constrains all dimensions of our everyday lives in ways
large and small that we often do not fully appreciate, perhaps because constitutions take many
forms that we do not generally associate with constitutionalism. Yet whether in the arts, sports,
trade, entertainment, politics, or war, constitutionalism is both the point of departure and the port
of call.191
It is seen that the main concern of the American constitutionalism is in the area of human
rights. In the American idea of rights, ―rights are not gifts from government.‖ This theory places
the fundamental rights of the individual beyond the government‘s reach. Fundamental rights are
protected against legitimate authority and elected representatives of the people, even when these
act in good faith and in the public interest. As antecedent to government, fundamental rights are
not granted to individuals by a constitution. Rather, a constitution protects fundamental rights
from infringement by government. The structure necessary for protection of fundamental rights
is a key element in constitutionalism. In the U.S. Constitution, the most important means
provided for protection of human rights is judicial review. The American idea of rights denotes a
distinctive relationship between the individual and society. The rights themselves, and the way
these are granted, reveal a philosophy of individualism connected to a guarantee of restricted


Advocate at Delhi High Court & Research scholar at Amity Law School, Amity University, Noida.
190
Constitutionalism , available at: http://plato.stanford.edu/entries/constitutionalism/ (Last Visited on April 25,
2014)
191
Richard Albert, ―The Cult of Constitutionalism‖ Vol. 39 Florida State University Law Review 373
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government intervention. The American idea of rights as fundamental and beyond the
government‘s reach, is achieving recognition in other nations. Scholarly opinions differ,
however, on which rights are truly fundamental and the scope thereof192.
That aftermath effect of constitutionalism was can be witnessed in Indian scenario through
various landmark judgments which laid down literature behind formulation of Fundamental
rights, for example in Moti Lal and Ors. Vs. The Government of the State of Uttar Pradesh and
Ors193, Hon‘ble Court of Allahabad held that the insertion of fundamental rights in the
Constitution is thus a deliberate departure from British concepts and it is necessary to seek the
reasons for it, particularly as they limit the sovereignty assigned to Parliament. The history of the
evolution of thought on the rights of man takes us back into the seventeenth century or even
earlier. From the time of Tom Paine's Rights of Man, Jefferson's Declaration of Bights,
Rousseau, and the French Revolution, schools of thought have existed down to H. G. Wells and
the U. N. O. discussions on human rights which assert that man has certain natural or inalienable
rights and that it has made the function of the state to preserve human liberty and free play to
rights of man. Fundamental rights were practically to be found in every constitution that came
into existence after world war-I. After world war-II, as a result of the discussions on the
proposed United Nation Charter of Human Rights, they have become even more visible in most
constitution framed after War.

2. THE PURPOSE OF FUNDAMENTAL RIGHTS

The word ―liberty‖ is given a very wide connotation by American decisions as including
not only freedom from bodily restraints but also the right of the individual to contract, to engage
in any of the common occupations of life, to acquire useful knowledge, to marry, establish home
and bring up children, to worship God according to the dictates of his own conscience, and
generally to enjoy those privileges long recognized at common law as essential to the orderly
pursuit of happiness by freemen194.

192
Cuban Constitutionalism and Rights: An overview of the Constitutions of 1901 and 1940, available at
http://www.ascecuba.org/publications/proceedings/volume6/pdfs/49sanchroi.fm.pdf (Last Visited on April 20,
2014)
193
AIR 1951 ALL 257: ILR(1951) 1 ALL 269 (FB)
194
(1943) 319 US 624(638)
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The leading feature of the conception of fundamental rights as developed under American
Constitution may be said to be the doctrine of ―due process of law‖. Under Amendment V to the
American Constitution which is directed against the Federal Government it is provided inter alia
that ―no person shall be deprived of his life, liberty or poverty without due process of law. This
signifies that the framers of the American Constitution did not attempt to define the expression
with result that it has a vague and indefinite content. Evidently, the framers of American
constitution preferred flexibility to certainty when they chose the phrase the phrase ―due process
of law‖. The upshot of constitutionalism on advancement of fundamental rights can be observed
from multifaceted constitutions of nations like America, England and India as enumerated
below:-

America
It is seen that during the commencement of the 17th century people, scholars, political
philosopher urbanized their perceptive on individual rights and had developed philosophy that
the man by birth had certain which are universal and in alienable, and he could not be deprived
of them. The declaration of American Independence 1776, state that all man are created equal,
that they endowed by their creator by certain inalienable right among those: life, liberty and the
pursuit of happiness and allow them to play freely, so that human liberty may be preserved,
human personality developed and an effective cultural , social and democratic life promoted. The
modern trend of guaranteeing fundamental rights to the people may be traced to the constitution
of USA drafted in 1787. The U.S. Constitution was the first modern constitution to concrete
shape to the concept of human rights by putting them in to the constitution and making them
justifiable and enforceable through the instrumentality of the courts.
It was astonishing to see that the original U.S. Constitution did not contain any
fundamental rights. There was trenchant criticism of the constitution on this score. Consequently,
the bill of rights came to be incorporated in the constitution in 1791 in the form of ten
amendments which emody the Lockeian idea about protection of life, liberty and property.

Britain
There is no formal deceleration of people‘s fundamental rights in Britain. The orthodox of
the sovereignty of parliament prevailing there does not envisage a legal check on the power of
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parliament which is, as a matter of legal theory, free to make any law even though it abridges,
modifies or abolishes any basic civil right or liberty of the people195. The power of the executive
is however limited in the sense that it cannot interfere with the rights of the people without
sanction of law196.
The constitution of England is unwritten. No code of fundamental right exists. The object
here is deferent way to protect the fundamental right not on the constitutional guarantee but on
public opinion, good sense of the people, strong common law and individual liberty and the
parliamentary form of government.197
Britain witnesses several historical events which were of immense significance and
observance that Britain should also have a written bill of rights, subsequently Britain accepted
European charter on Human Rights but it did not bind parliament, it can only be used in
interpretations of local law. Henceforth taking all these chronological events in consideration,
ultimately Britain parliament enacted Human Rights Act, 1998. The purpose of the Act is to give
effect to the rights and freedoms guaranteed under European convention on Human rights.

3. EVOLUTION OF FUNDAMENTAL RIGHTS IN THE CONSTITUTION OF

INDIA
In India evolution of Fundamental Rights were based on struggle faced by people against
oppression and arbitrariness of British colonialism. During the British rule in India, human rights
were violated by the rulers on a very wide scale. Therefore framers of the constitution, many of
whom had suffered long incarceration during British regime, had a very positive attitude towards
these rights.
Though democracy was being introduced in India, yet democratic traditions were lacking
and there was a danger that the majority in the legislature may enact laws which may be
oppressive to individuals or minority groups, and such a danger could be minimized by having a
bill of rights in the constitution. That the need to have the fundamental rights was so very well
accepted on all hands that in the constituent assembly, the points was not even considered

195
Liversidge v. Anderson, 1942 AC 206
196
Eshugbayi v. Govt. of Nigeria, 1931 AC 662
197
Fundamental Rights in Indian Constitution, available at: http://www.lawyersclubindia.com/articles/Fundamental-
Rights-in-Indian-Constitution-3770.asp#.U1yehPldX5M (Last visited on April 24, 2014)
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whether or not to incorporate such rights in constitution. In fact, the fight all along was against
the restriction being imposed on them and the effort all along was to have the fundamental rights
on as broad and pervasive a basis as possible198.
As regard India Simon Commission and Joint Parliamentary Committee had reject the idea
of enacting declaration of Fundamental right on the ground that the abstract declaration is
useless. Although the demand of the people was not met by the British Parliament under the
government of India Act 1935 yet the enthusiasm of the people to have such right in the
constitution was not impaired. The recommendation of the Nehru Committee was included in the
constitution in 16 May‘1946 by the cabinet mission.
Part-III of the constitution contains a long list of fundamental rights. This chapter of the
constitution of India has very well been described as Magna Carta of India. It is seen that when
constitution of India was being framed the background of the incorporation of Bill of Rights was
already present. The framers took inspiration from this and incorporated full chapter in the
Constitution dealing with Fundamental Rights. The aim of having a declaration of fundamental
rights is that certain elementary rights, such as right to life, liberty, freedom of speech, freedom
of faith and so on, should be regarded as inviolable under all conditions and that the shifting
majority in Legislature of the country should not have a free hand in interference with these
fundamental rights199.
In West Virginia State Board of Education Vs. Barnet, Jackson200, J. explaining the nature
and purpose of the Bill of Rights observed: ―The very purpose of a Bill of Right was to withdraw
certain subjects from vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied by Courts. One‘s
right to life, liberty and property, to free speech, free press, freedom of worship and assembly
and other fundamental rights may not be submitted to vote, they depend on the outcome of no
elections‖.
The Indian Constitution guarantees essential human rights in the form of fundamental
rights under part-III, freedom guaranteed under part III have been liberally constructed by

198
D.D.Basu, Constitution of India 1191 (Lexis Nexis India, New Delhi, 14th edn, 2011)
199
A.K.Gopalan‟s Case, AIR 1950 SC 27
200
319 US 624:87
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various pronouncements of the Supreme Court in the last half century, keeping in view the
International Covenants to which India is party. The object has been to place citizen at a centre
stage and make state accountable201. Speaking about importance of Fundamental Rights in the
historic judgments of Maneka Gandhi Vs. Union of India202, Bhagwati, J., observed: “These
Fundamental Rights represent the basic values cherished by people of this country since the
Vedic times and they are calculated to protect the dignity of the individual and create conditions
in which every human being can develop his personality to the fullest extent. They weave a
„pattern of guarantee‟ on the basic structure of Human Rights, and impose negative obligation
on the state not to encroach on individual liberty in its various dimensions”.
These rights are regarded as fundamental because they are most essential for the
attainment by the individual or his full intellectual, moral and spiritual status. The negation of
these rights will keep the moral and spiritual life stunted and his potentialities undeveloped. The
declaration of the fundamental rights in the constitution serves as reminder to the Government in
power that certain liberties, assured to the people by the constitution are to be respected. The
danger of encroachment on citizens‘ liberties is particularly great in a parliamentary system in
which those who form the government are leader of the majority party in the legislature and can
get laws made according to their wishes. The advocates of inclusion of these rights in the Indian
Constitution emphasize that their incorporation in the Constitution vest them with sanctity which
legislators dare not to violate so easily203.
The object behind the inclusion of chapter of Fundamental Rights in Indian Constitution is
to establish a Government of law and not of man, a government system where tyranny of
majority does not oppress the minority. In short, the object is to establish Rule of Law and it
would not be wrong to say that the Indian Constitution in this respect goes much ahead than any
other constitutions of the world. They were intended to make all citizens and person appreciate
that the paramount law of the land has swept away privileges and has laid down the paramount

201
People‟s Union for Civil Liberties v. Union of India, (2005) 2 SCC 436
202
AIR 1978 SC 597
203
Dr.J.N.Pandey, Constitutional law of India 52(Central Law Agency, Allahabad, 41st edn., 2004).

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perfect equality between one section of the community and another in the matter of all those
rights which are essential for the material and more perfection of Man204.
There are seven Fundamental Rights enshrined Constitution of India. Though right to
property was removed from the list of Fundamental Rights by the 44th Amendment Act of the
Constitution in the year 1976, since then, it has been made a legal right henceforth Article 19(1)
(f) and article 31 has been omitted. Recently by the 86th Amendment Act, the Right to Education
has been included in the list of Fundamental Rights as part of the Right to Freedom by adding
Article 21(A).

4. BALANCING FUNDAMENTAL RIGHTS

Absolute and unrestricted individual rights do not, and cannot exist in any modern state.
Unrestricted liberty becomes a license and jeopardizes the liberty of others. ―Civil Liberties as
guaranteed by the Constitution imply the existence of an organized society maintaining public
order without which liberty would be lost in excess of unrestrained abuses‖.205 The Indian
constitution attempt to do it by enumerating what are fundamental rights and by setting limits
within which they can be curtailed. The Constitution permits reasonable restrictions to be
imposed on individual‘s liberties in the interest of society. In this connection Hon‘ble Apex
Court in A.K.Gopalan Vs. State of Madras206 quoted:-
“There cannot be any such thing as absolute or uncontrolled liberty wholly freed
from restraint, for that would lead to anarchy and disorder. The possession and
enjoyment of all rights, as was observed by the Supreme Court of America in
Jacobson v. Massachusetts 197 U.S. 11, are subject to such reasonable conditions
as may be deemed by the governing authority of the country essential to the
safety, health, peace, general order and morals of the community. The question,
therefore arises in each case of adjusting the conflicting interests of the individual
and of the society. In some cases, restrictions have to be placed upon free exercise
of individual rights to safeguard the interests of the society; on the other hand,
social control which exists for public good has got to be restrained, lest it should

204
Supra 5
205
Fox vs. Nrew Hampshire, (1941) 312 US 569 at Pg 574
206
AIR 1950 SC 27
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be misused to the detriment of individual rights and liberties. Ordinarily, every

man has the liberty to order his life as he pleases, to say what he will, to go where
he will, to follow any trade, occupation or calling at his pleasure and to do any
other thing which he can lawfully do without let or hindrance by any other
person. On the other hand for the very protection of these liberties the society
must arm itself with certain powers. No man's liberty would be worth its name if it
can be violated with impunity by any wrong-doer and if his property or
possessions could be preyed upon by a thief or a marauder. The society,
therefore, has got to exercise certain powers for the protection of these liberties
and to arrest, search imprison and punish those who break the law. If these
powers are properly exercised, they themselves are the safeguards of freedom, but
they can certainly be abused. The police may arrest any man and throw him into
prison without assigning any reasons; they may search his belongings on the
slightest pretext; he may be subjected to a sham trial and even punished for
crimes unknown to law. What the Constitution, therefore, attempts to do in
declaring the rights of the people is to strike a balance between individual liberty
and social control.”

5. WHEN THERE IS CONFLICT BETWEEN TWO FUNDAMENTAL RIGHTS

Apart from the question of validity of restrictions being imposed upon the fundamental
rights, a question may arise as to the interpretation that Court should adopt when the application
of one fundamental right would conflict with another. In Mohammad Yasin Vs. Town Area
Committee207, the learned Judge rightly took the view that all parts of Constitution must be raised
together moreover when two fundamental rights come into conflict, and one is sought to be
extended to its extreme logical conclusion at the expense of other, a Court would be slow to
recognize and uphold such an extension of a fundamental Rights which infringe and violates
another fundamental right.

207
1952 SCR 572
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The Bombay High Court in Damodar Ganesh and Ors. Vs. State208 has in the same way
observed “A restriction which fractionally interferes with the right of freedom of movement of
one section of the public in the interest of the only way in which another section of the public can
exercise its right of pursuing its occupation, cannot be said to be unreasonable.”
That the Hon‘ble Judge brilliantly quoted that:
―When the question of adjusting such mutually conflicting rights arises, it is
obviously the duty of the State to adjust the rights under different heads, so far as
possible to avoid conflicts between them and to reconcile those rights. Such police
powers must be deemed to be implicit in the right of the State in enacting
legislation to adjust and to reconcile such conflicting rights. To what extent these
rights can be restricted has been laid down in Clauses (2) to (5) of Article 19.
Under the American Constitution, the Courts have had to resort to the doctrine of
"police powers" in order to bring about a regulation between conflicting
fundamental rights. In the case of our Constitution the doctrine of police powers
need not be invoked as an attempt has been made in the Constitution itself to
define the extent to which and the purposes for which the fundamental rights
enumerated in Clause (1) may be restricted. The question as to whether the
restriction placed on any fundamental right is a reasonable restriction or not
must be determined with reference to Clauses. (3) to (6) of that article so far as
the rights enumerated in Sub-clauses (b) to (g) of Clause (1) of Article 19 are
concerned. With reference to the restriction on the freedom of speech and
expression mentioned in Clause (a) of Article 19(1), the validity of that restriction
has to be tested with reference to certain matters with respect to which laws may
be made in abridgment of the right to freedom of speech and expression. It is open
to the Court in any particular case to pronounce whether under Clauses (3) to (6)
of Article 19, any particular restriction embodied in any law is a reasonable
restriction or not.‖

208
AIR1951Bom459
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6. CONSTITUTIONALISM AND FUNDAMENTAL RIGHTS IN THE EYES OF

INDIAN JUDICIARY
The nine judges' Bench presided by Mr. Justice Y.K. Sabharwal, the then C.J.I. delivered a
unanimous verdict on 11.1.2007 in I.R. Coelho (Dead) By LRs. v. State of Tamil Nadu and
Ors209, upholding the 'Basic Structure Doctrine', and the authority of the judiciary to review any
such laws, which destroy or damage the basic structure as indicated in Art.21 read with Art.14,
Art.19 and the principles underlying there under, even if they have been put in 9th Schedule after
14th April, 1973. This case is popularly known as The Ninth Schedule Case210.
That the Supreme Court of India brilliantly after considering the entire landmark
Judgments likes A.K Gopalan v. The State of Madras, Additional District Magistrate, Jabalpur
v. Shivakant Shukla, His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kerala and
Anr., I.C. Golak Nath and Ors. v. State of Punjab and Anr., Keshavananda Bharati v. State of
Kerala, Menaka Gandhi v. Union of India, Minerva Mills Ltd. and Ors. v. Union of India and
Ors, S.R. Bommai and Ors. v. Union of India and Ors., Sambhu Nath Sarkar v. The State of
West Bengal and Ors. , Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, which
reflects mechanism involved in enforceability of Fundamental Rights enumerated in part III of
Our constitution, aspects concerning stirring of basic structure of our constitution. Through I.R.
Coelho v. State of Tamil Nadu211, Hon‘ble Apex Court depicted the conception of
constitutionalism, Constitutionality, Fundamental Rights and Judicial Review, it laid down that:
―The Constitution is a living document. The constitutional provisions have to be
construed having regard to the march of time and the development of law. It is,
therefore, necessary that while construing the doctrine of basic structure due
regard be had to various decisions which led to expansion and development of the
law. The principle of constitutionalism is now a legal principle which requires
control over the exercise of Governmental power to ensure that it does not
destroy the democratic principles upon which it is based. These democratic

209
AIR2007SC861: 2007(1)ALLMR(SC)944
210
I.R. Coelho v. State of Tamil Nadu: A Judicial Challenge, Available at:
http://www.legalserviceindia.com/article/l382-I.R.-Coelho-v.-State-of-Tamil-Nadu-A-Judicial-Challenge.html (Last
visited on April 25, 2014)
211
Supra 22
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principles include the protection of fundamental rights. The principle

of constitutionalism advocates a check and balance model of the separation of
powers, it requires a diffusion of powers, necessitating different independent
centers of decision making. The principle of constitutionalism underpins the
principle of legality which requires the Courts to interpret legislation on the
assumption that Parliament would not wish to legislate contrary
to fundamental rights. The Legislature can restrict fundamental rights but it is
impossible for laws protecting fundamental rights to be impliedly repealed by
future statutes.

CONCLUSION
It is extremely intricate to predict India‘s constitutional-political future and silhouette of
fundamental rights after ten or twenty years. The Supreme Court has even enunciated the
doctrine of implied Fundamental Rights. The court has asserted that in order to treat a right as
Fundamental Right, it is not necessary that it should be expressly stated in the Constitution as a
Fundamental Right. Political, social and economical changes concurring in the country may
entail the recognition of new rights and law in its eternal youth grows to meet social demands.212
The Indian Constitution is a marathon effort to translate philosophical rule of law into practical
set up divided into three significant estates checking each other exercising parallel sovereignty
and non-egoistic supremacy in their own way. Apart from excellent separation of powers to
avoid the absolute concentration, the Constitution of India envisages a distinct distribution of
powers between two major levels of Governments- central and provincial with a fair scope for a
third tier – the local bodies. However, the operation of the system came in contrast with men and
their manipulations leading to different opinions and indifferent options. Whatever may be the
consequential aberrations, the system of rule of law is perfectly reflected in framing of the
Constitutional norms codifying the best governing mechanisms tested and trusted in various
democratic societies world over.213

212
Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178
213
Evolution and Philosophy behind the Indian Constitution, available at:
http://www.hrdiap.gov.in/87fc/images11/4.pdf ( Last visited on April 20,2014)
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HUMAN TRAFFICKING: A SOCIO-LEGAL FACET OF MODERN WORLD

TANAY JAIN & NIMISH M. BHAGWATI

“They may use my body but my mind is free. In my mind I Escape”

- Gladys Lawson
The purpose of this paper is to enlighten the society about human trafficking214 which is
the fastest increasing criminal industry in today‘s world after illegal drug trade. This paper
focuses that up to which extent human trafficking is spreading in India and all over the world. It
also covers the area where human trafficking has been banished. The role of government, courts
and NGO in rescue, care, support, protection, prevention and rehabilitation of victims has also
been discussed in the paper. It also includes interview of some speakers about human trafficking.
The statistical data of human trafficking is also included in this paper. The laws made by the
government, their validity, amendments and implementation of those laws. The conclusion of
this paper is that what amendments should be there in the laws to eradicate this problem fully
with some recommendations. Rigorous evaluation of policies and programs are needed to
identify the most effective counter trafficking strategies and most appropriate care for the people
affected.


2nd Year, B.A. L.L.B (Hons.), University Five Year Law College, University of Rajasthan, Jaipur.
214
Art. 3 Para (a) of The Protocol to Prevent, Suppress and punish Trafficking in persons.

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1. DEFINITION, CAUSES AND EFFECT OF HUMAN TRAFFICKING

Definition
The human trafficking simply means trafficking in persons. It means the recruitment,
transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or
other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a
position of vulnerability or of the giving or receiving of the payments or benefits to achieve the
consent of a person having control over another person, for the purpose of exploitation.215
On the basis of the definition given it is evident that it contains 3 elements- the act (what is
done), the means (how it is done) and the purpose (why it is done). The recruitment,
transportation, transfer, harboring or receipt of persons are the acts. When threat, coercion,
abduction, fraud, deception, vulnerability, giving benefits to a person in control of the victim
then these are the means of trafficking. The purpose of the trafficking is to exploit the
prostitution, slavery, forced labor, sexually, organ removal and similar practices. The definition
of trafficking should be of that extent that it is not only for exploiting sexually but for all the
ranges of exploitation. When we talk about human trafficking in India we come to see that
mostly children and women are trafficked this means that child labor is mostly active in India.
Transnational crime is an important part of the rise in human trafficking as criminals are drawn
by the enormous supply of the people and the demand for cheap domestic servants, agricultural
workers and laborers for dangerous industries. The rise of sexual exploitation has been rapid and
a truly global phenomenon, drawing increasing numbers of children and young women into the
sphere. The growth of this crime has been very rapid because neither there is certainty nor
severity of punishment.216

Causes of Human Trafficking

The root cause of trafficking in persons differs from one country to another. Human
trafficking is a complex phenomenon. It is influenced by social, economic, cultural and other
factors. Some of the common factors are local conditions that make populations want to migrate
in search of better conditions: poverty, oppression, lack of human rights, and lack of social or
215
Art. 3 Para (a) of The Protocol to Prevent, Suppress and punish Trafficking in persons available at:
www.ohchr.org (Visited on September 24, 2014).
216
Interview of Louise Shelly on Human Trafficking: A global perspective available at: www.rorotoko.com (visited
on September 26, 2014).
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economic opportunity, dangers from conflict or instability and similar conditions. Political
instability, militarism, civil unrest, internal armed conflict and natural disasters may result in an
increase in trafficking. The destabilization and displacement of populations increase their
vulnerability to exploitation and abuse through trafficking and forced labor. War and civil strife
may lead to massive displacements of populations, leaving orphans and street children extremely
vulnerable to trafficking.
Some of the common factors are poverty, oppression, lack of human rights, and lack of
social or economic opportunity. These factors exerts pressure on victim to migrate and hence in
the control of the traffickers.217 Poverty and wealth are relative concepts which lead to both
migration and trafficking patterns in which victims move from conditions of extreme poverty to
conditions of less-extreme poverty. Some parents sell their children, not just for the money, but
also in the hope that their children will move to a place where they will have a better life and
more opportunities. In some States, social or cultural practices also contribute to trafficking.
Causes of Human Trafficking can be divided in 2 factors218:
 Local Factor
In the area of local factors, poverty especially among women, a lack of political, social and
economical stability are the few factors in the area of local factors. Gender discrimination is also
the causes that make another gender that is male or female to be stressed out with the situation
that happens among them. Lack of access to education and information is when the individual
not concerns about how important other human beings to another.
 Universal Factor
Universal factors imposes more limits and obstacles to legal migration channels to
countries with stronger economies and regions with better prospects, a lack of public awareness
of the dangers of trafficking. A lack of effective anti-trafficking legislation and if such legislation
exists there is a lack of effective enforcement. A lack of effective enforcement by the authority
gives us a major problems and this will not give a full stop to this problems. Government and the
society should be united to solve this sophistic issue. Malaysia is a destination country for
number of men women, and children who are trafficked from Indonesia, Thailand, the
Philippines, Cambodia, India, and so many Asian countries for sexual and labor exploitation.

217
Tool 9.2 from Toolkit-files of Human Trafficking available at: www.unodc.org (Visited on September 26, 2014).
218
Causes of Human Trafficking available at: www.biusvspa.blogspot.in (Last Modified March 2, 2011.
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Effects of Human Trafficking

The social impacts of human trafficking are rather universal. This does not denote them as
being not a serious matter, nonetheless. Those who have truly experienced human trafficking are
the ones who must cope with the majority of the social impacts. Although, HIV and AIDS can be
spread because of human trafficking, this can affect any and all of the population. If a person has
had to experience human trafficking, they have known a life worse than death itself. The
conditions those are forced to live in the brothels are thoroughly atrocious 219. Victims of human
trafficking have absolutely no freedoms, and experience horrors such as abuse, violence,
deprivation, and torture.
The direct impact on the family and community left behind cannot be easily quantified but
nevertheless should not be ignored. Trafficking undermines extended family ties, and in many
cases, the forced absence of women leads to the breakdown of families and neglect of children.
Children trafficked into forced labor or sexual exploitation has their development as a person
‗irreparably damaged‘. Survivors often suffer multiple traumas and psychological problems.
Victims who return to communities often find themselves stigmatized and shunned, and are more
likely to become involved in substance abuse and criminal activity.220
. According to the International Labor Organization (ILO), human trafficking generates
$31.6 billion estimated illicit profit worldwide. As calculated by the CIA, a trafficker earns up to
$250,000 per victim of the sex trade in a year. Of this the victim is clearing up his debts and
paying for food, clothing and lodging. The victims of slavery are also paid very meager wages
for strenuous physical labor which prevents them from fleeing. Availability of cheap labor gives
employment opportunities and reduces per capita income of the nation221.

2. NEGATIVE IMPACT OF HUMAN TRAFFICKING.

As a major component of organized crime, with all its financial power, trafficking in
persons has a complex and interlocking negative impact across human, social, political and
economic spheres. The destabilizing and dangerous consequences of human trafficking range
from readily recognized violence, direct economic loss and major migration concerns to the less
219
Social Impacts of Human Trafficking available at: htia.weebly.com (Visited on September 27, 2014).
220
Helpdesk Research Report: The impact of human trafficking on people and countries available at: www.gsdrc.org
(Visited on September 23, 2014).
221
Article on Effects of Human Trafficking available at: http://www.buzzle.com/articles/effects-of-human-
trafficking.html (Visited on October 1, 2014).
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easily quantified, equally serious, but more complex effects of risks and harms to environmental,
social, health and safety, and violations of human rights. Trafficking in persons directly
challenges the development of stable, more prosperous societies and legitimate economies, and
works strongly against the reconciliation of political interests with humanitarian and human right
obligations222. As a criminal act, trafficking violates the rule of law, threatening national
jurisdictions and international law. Organized crime is one of the most important mechanisms for
unlawful redistribution of national wealth, influencing markets, political power and societal
relations.
The act of trafficking and the human rights violations can have very serious consequences
for the victim. Women who have been trafficked may suffer from serious health problems,
including physical health, reproductive health and mental health problems. Service providers
who work with victims should be aware of the severe and interrelated health consequences that
result from trafficking. Sexual assault is a traumatic event with physical and emotional effects on
the victim. After experiencing sexual assault, a woman may experience a range of physical
consequences and emotional reactions, including severe stress and depression223. In certain cases
after being trafficked the women is not accepted by her family members. The mental stress and
depression after trafficking can also take life of women. The uncontrollable expansion of the sex
and pornography industry has created increased demand for child and women trafficking not
only from developing countries to developed countries.

3. LAWS AND CONVENTIONS RELATED TO HUMAN TRAFFICKING

Laws related to Human Trafficking in India

 Under Indian Constitution
Article 2310 and 24224 given under part III of the Indian constitution that is fundamental
rights which deals with Right against Exploitation. In this Article 23 is prohibition of traffic in
human beings.
Now, Article 23 protects the individual not only against the state but also private citizens.
It imposes a positive obligation on the state to take steps to abolish evils of ―traffic in human
222
Initiatives, Anti trafficking available at: www.shaktivahini.org (Visited on September 30, 2014).
223
Effects and Consequences of Trafficking in women available at: http://www1.umn.edu/humanrts
/svaw/trafficking/explore/4effects.htm (Visited on October 1, 2014).
224
J.N. Pandey, The Constitutional Law of India (Central Law Agency, Allahabad, 49th edition, 2012).
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beings‖ and beggar and other similar forms of forced labor wherever they are found. It also
prohibits the system of ‗bonded labor‘ because it is a form of forced labor within the meaning of
this article.
And, Article 24 of the constitution prohibits the employment of children below 14 years of
age in factories and hazardous employment, this provision is certainly in the interest of public
health and life of children.
There is a leading case on both the articles that is People‘s Union for Civil Liberties v. Union of
India225.
Meanwhile, Article 39226(f) imposes a duty on the State to direct its policy towards
securing that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected against
exploitation and against moral and material abandonment.
 Under Indian Penal Code, 1860
There are 25 provisions regarding trafficking significant among them are Section 366A –
procuration of a minor girl (below 18 years of age) from one part of the country to another is
punishable. Section 366B – importation of a girl below 21 years of age is punishable. Section
374 – provides punishment for compelling any person to labor against his will.
 Immoral Traffic (Prevention) Act, (ITPA) 1956227 [renamed as such by drastic
amendments to the Suppression of Immoral Traffic in Women and Girls Act, 1956
(SITA) which deals exclusively with trafficking; objective is to inhibit / abolish traffic in
women and girls for the purpose of prostitution as an organized means of living; offences
specified are:
 Procuring, including or taking persons for prostitution;
 Detaining a person in premises where prostitution is carried on;
 Prostitution is or visibility of public places;
 Seducing or soliciting for prostitution;
 Living on the earnings of prostitution;

225
AIR 1982 SC 1943.
226
P.M. Bakshi, The Constitution of India (Universal Law Publishing Co., New Delhi- India, 12th Edition, 2013).
227
Immoral Trafficking Prevention Act, 1956 available at: www.protectionproject.org (Visited on September 28,
2014).
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 Seduction of a person in custody;

 Keeping a brothel or allowing premises to be used as a brothel.

4. INTERNATIONAL LAW RELATED TO HUMAN TRAFFICKING

The United Nations have made some laws for the prevention of trafficking in persons. The
conventions are also made by them for protecting children from human trafficking. International
laws lay down standards that have been agreed by all the countries. By ratifying an international
law or convention a country agrees to implement the same. To ensure implementation, the
standards set in these international conventions are to be reflected in domestic law. Implementing
procedures are to be put in place as needed and the treaties must be properly enforced. The laws
and Conventions are as follows:
 The Convention on the Rights of the Child, 1989228.
This convention of United Nations provides fundamental human rights and in the dignity and
worth of the human person, and have determined to promote social progress and better standards
of life in larger freedom.
 SAARC Convention on Regional Arrangement for the Promotion of Child Welfare,
2002229.
This convention emphasizes that the evil of trafficking in women and children for the
purpose of prostitution is incompatible with the dignity and honor of human beings and is a
violation of basic human rights.
 The Convention on the Elimination of All forms of Discrimination against Women,
(CEDAW) 1979230.
This convention is for women and prevents women from any type of discrimination. It is the
distinction, exclusion or restriction made on the basis of sex which has the effect or purpose
of impairing or nullifying the recognition, enjoyment or exercise by women.
 The Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children231.

228
Convention on right of child, 1989 is available at: www.unicef.org.uk/documents/publication-
pdfs/UNCRC_PRESS20091oweb.pdf (Visited on September 28, 2014).
229
SAARC Convention on Regional Arrangement for the Promotion of Child Welfare, 2002available at:
www.saarc-sec.org (Visited on October 3, 2014).
230
CEDAW, 1979 available at: www.un.org/womenwatch/daw/cedaw (Visited on October 2, 2014).
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The preamble of this protocol states that effective action required a comprehensive
international approach in the countries of origin, transit and destination to prevent such
trafficking including by providing international rights given by law.

5. PROSTITUTION: A REASON FOR HUMAN TRAFFICKING

Whoever sells, lets to hire, or otherwise disposes of any sold, or otherwise disposed of to a
prostitute or to any person who keeps or manages a brothel, the person so disposing of such
female shall, until the contrary is proved, be presumed to have disposed of her with the intent
that she shall be used for the purpose of prostitution232. And in the world prostitution is at the
highest level of trafficking. And in this the victims especially children and women are transferred
from one country to another country‘s third world countries.
The Immoral Traffic Prevention Act (1956) (ITPA) is the main legal instrument addressing
the trafficking of human beings in the country. It is supplemented by provisions in certain other
domestic laws, including the Indian Penal Code (IPC, 1860). The ITPA is focused on trafficking
for the purpose of prostitution. Accordingly, it outlaws the running of a brothel; living on the
earnings of a prostitute; procuring, inducing or taking a person for the sake of prostitution; and
detaining a person in a place where prostitution is carried on233. The Act also provides for the
rescue and rehabilitation of victims/survivors of trafficking, action against exploiters and
increased punishment for trafficking offences involving children.
The prohibition of prostitution in children is given in Section 372, Section 373 of IPC234,
1860. The selling of minor for purposes of prostitution, etc is given in Section 372 of IPC and
buying minor for purposes of prostitution is given in Section 373 of IPC & are prohibited or we
can say banned by India.
Does legalizing prostitution protect Women and girls?
 Findings from countries and states where prostitution is legal
Millions of women and girls around the world are exploited in the commercial sex industry
(i.e. the buying and selling of sex), which is often the end destination of sex trafficking. While

231
Protocol to prevent, suppress and punish trafficking in persons, especially Women and Children available at:
www.ohrcr.org (Visited on October 1, 2014).
232
Indian Penal Code, 1860 available at: www.advocatekhoj.com (Visited on October 1, 2014).
233
Immoral Traffic Prevention Act, 1956- Section-3, 4, 5, 6 available at: www.protectionproject.org (Visited on
September 28, 2014).
234
IPC, 1860 available at www.advocatekhoj.com (Visited on October 1, 2014).
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human rights activists, government officials and the United Nations all agree that the trafficking
of women and girls for prostitution is a serious – and growing – problem, there is disagreement
as to the best way to prevent trafficking and exploitation. Some believe that targeting the demand
for commercial sex that fuels sex trafficking while decriminalizing those exploited in prostitution
is the most effective way to curb sex trafficking, while others argue that legalizing or
decriminalizing the commercial sex industry is the best way to weed out and prevent exploitation
and trafficking.
The legalization of prostitution includes legalizing the activities involved in and
surrounding prostitution, and often imposing regulations specific to the sex industry. Countries
and states that have legalized prostitution include: Senegal (1969), states in Australia including
Victoria (1994) and Queensland (1999), the Netherlands (2000) and Germany (2002). The
decriminalization of prostitution includes repealing all laws or provisions against prostitution,
and not imposing prostitution-specific regulations. Countries and states that have decriminalized
prostitution include the Australian state of New South Wales (1995), and New Zealand (2003).
But it was not successful in some countries like- Germany, In 2007 government report
stated that the law has ―not been able to make actual, measureable improvements to prostitutes‘
social protection‖ and that ―hardly any measureable, positive impact has been observed‖
regarding their working conditions.235 The government also stated there are ―no viable
indications that the [law] has reduced crime.236

6. PROSTITUTION AS TRAFFICKING WORLDWIDE

Prostitution is a multibillion dollar business that employs millions of women worldwide. A
recent study by the International Labor Office estimated that in Indonesia, Malaysia, the
Philippines, and Thailand, between 0.25 and 1.5 percent of the female population work as
prostitutes and that the sex sector accounts for between 2 and 14 percent of the gross domestic
product (Lim 1998). Prostitution is more common in less developed countries but far from absent
in developed ones The 1992 National Health and Social Life Survey (NHSLS) found that about 2

235
German Federal Ministry for Family Affairs, Senior Citizens, Women and Youth, Report by the Federal
Government on the Impact of the Act Regulating the Legal Situation of Prostitutes (Prostitution Act), July 2007, pg.
79.
236
Does legalizing prostitution protect women and girls? Available at:
www.equalitynow.org/sites/default/files/doeslegalizingprostitutionprotectprotectwomenandgirlsEN.pdf (Visited on
October 1, 2014).
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percent of American women had ever sold sex. A government estimate put the number of
prostitutes in Germany at 150,000 (Morell 1998), and Amsterdam is believed to have about
25,000 prostitutes237. Prostitution has an unusual feature: it is well paid despite being lowskill,
labor intensive, and, one might add, female dominated. Earnings even in the worst-paid type,
streetwalking, may be several multiples of full-time earnings in professions with comparable
skill requirements.
 Market Structure through Prostitution
Prostitution has been organized according to similar principles across different times and
cultures. At the bottom we find street prostitution, followed by brothels, bars, and clubs. Call
girls and escort agencies occupy the middle to high slots and kept women the top rungs. Higher
end prostitutes are better looking, younger, and healthier; charge more per client; and spend more
time with each238. Typically, both earnings and working conditions are better more up market:
clients are fewer, venues more agreeable, and client screening more selective.

7. CHILD TRAFFICKING

Child Trafficking in India

Trafficking in human beings, especially in women, and children has become a matter of
serious national and international concern. Women and children – boys and girls – have been
exposed to unprecedented vulnerabilities commercial exploitation of these vulnerabilities has
become a massive organized crime and a multimillion dollar business. Nations are attempting to
combat this trade in human misery through legislative, executive, judicial and social action.
Trafficking of children is a worldwide phenomenon affecting large numbers of boys and girls
every day. Children and their families are often lured by the promise of better employment and a
more prosperous life far from their homes.
Others are kidnapped and sold. Trafficking violates a child‘s right to grow up in a family
environment and exposes him or her to a range of dangers, including violence and sexual
abuse.239

237
Editorial, ―Prostitution‖ Financial Times, October 27, 1999.
238
For instance, higher-end prostitution may involve socializing with the client, whereas lower-end prostitution
tends to be more narrowly focused (e.g., Ramseyer 1991).
239
Child Trafficking in India available at: mecon.nomadit.co.uk (Visited on September 27, 2014).
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 Indian Law related to child trafficking

o Child Labor (Prohibition and Regulation) Act, 1986240
This act prohibits employment of children in certain specified occupations and also lays down
conditions of work of children.
o Karnataka Devadasi (Prohibition of Dedication) Act, 1982241
This Act of dedication of girls for the ultimate purpose of engaging them in prostitution is
declared unlawful – whether the dedication is done with or without consent of the dedicated
persons.
o Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989242
Penalty of imprisonment for three years and fine are stipulated in respect of anyone, who
performs, promotes, abets or takes part in Devadasi dedication Ceremony.
o Goa Children’s Act, 2003243
Trafficking is specially defined as- Every type of sexual exploitation is included in the definition
of sexual assault;
- Responsibility of ensuring safety of children in hotel premises is assigned to the owner and
manager of the establishment;
- Photo studios are required to periodically report to the police that they have not sought obscene
photographs of children.
Stringent control measures established to regulate access of children to pornographic materials
children.
Statistical Data of Child Trafficked
Trafficking in children is on rise, and nearly 60% of the victims of trafficking are below 18 years
of age (NCRB, 2005).
According to NHRC Report on Trafficking in Women and Children, in India the population of
women and children in sex work in India is stated to be between 70,000 and 1 million of these,

240
Child Labor (Prohibition and Regulation) Act 1986 available at: www.childlineindia.org (Visited on September
27, 2014).
241
Karnataka Devadasi (Prohibition of Dedication) Act, 1982 available at: dpal.kar.nic.in (Visited on September 27,
2014).
242
Andhra Pradesh Devadasi (Prohibiting Dedication) Act, 1989 available at: www.advocatekhoj.org (Visited on
September 27, 2014).
243
Goa Children‘s Act, 2003 available at: www.childlineindia.org (Visited on September 27, 2014).
119
 RULJ (2015) Vol. 1.1

30% are 20 years of age. Nearly 15% began sex work when they were below 15 and 25% entered
between 15 and 18 years (Mukherjee & Das 1996).244
International Law on Child Trafficking
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially for
Women and Children 2000245 under the UN Convention against Transnational Organized Crime
(UNTOC). This Convention has been signed by the government of India.
Article 3 of this protocol defines a) trafficking which has been discussed earlier:
Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other
forms of sexual exploitation, forced labor services, slavery, servitude or the removal of organs;
b) The consent of a victim of trafficking in persons to the intended exploitation set forth in above
definition of this article shall be irrelevant;
c) The recruitment, transportation, transfer, harboring or receipt of a child for the purpose of
exploitation shall be considered ‗trafficking in persons‘ even if this does not involve any of the
means set forth in sub paragraph (a) of the article;
d) Child shall mean any person less than eighteen years of age.
What are Children trafficked for246?
o Labor
o Bonded labor
o Domestic work
o Agricultural labor
o Construction work
o Carpet industry, garment industry, fish shrimp export as well as other sites of work in
the formal and informal economy.

244
Statistics Data available at: www.slideshre.net (Visited on September 26, 2014) .
245
Art. 3 of The Protocol to Prevent, Suppress and punish Trafficking in persons available at: www.ohchr.org
(Visited on September 24, 2014).
246
Child Trafficking in India available at: mecon.nomadit.co.uk (Visited on September 27, 2014).
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8. ROLE OF COURTS, GOVERNMENT, NGOS REGARDING PROTECTION,

CARE AND REHABILITATION OF VICTIMS
The courts play very important role in eradicating human trafficking from India as well as
from other countries where it has not banned. As the courts help the victims of human trafficking
by giving them legal aid and assistance to approach the court. This can be widely explained
further through a case of-
Bachpan Bachao Andolan Vs UOI247- This petition brings to the notice of the Supreme
Court the plight of children working in Indian circuses. The petition seeks guidelines specifically
prohibiting the engagement of children below 18 years of age in any form. It also requests that
the CBI be directed to investigate the gross violation of fundamental rights of children in
circuses. The case was pending for some time. But on 10th may 2013 the court gave its judgment
which was a landmark judgment.
Subrata Mukherjee Vs The State Of West Bengal248-
This PIL (2007) was filed in the Calcutta High Court for implementation of Juvenile
Justice Act in West Bengal. The litigation demanded that JJBs and child welfare committees and
special juvenile police units be established in all districts. The state government has taken
initiative to form JJBs, CWCs and SJPUs in the state.
This means that before this case there was no implementation of Juvenile Justice Act, 2000
in some states including West Bengal. After this case Special Juvenile Police Units were
established in all the districts.
The Supreme Court has sought Kerala‘s response to a petition raising serious concern
about child care centers citing recent discovery of over 600 children trafficked illegally to the
state.249
High courts are also working for rehabilitation of victims of human trafficking.
There is a leading case of Kalpana Pandit Vs. State Of Nct Of Delhi250- In this case the
court has gone in the role of illegal placement agencies operating in Delhi and who are also

247
(2011) 5 SCC 1.
248
AIR (1982) Cal 430, (1982) 2 Complj 244 cal.
249
Editorial, ―Supreme Court notice to Kerala Govt. on rampant child trafficking‖ Times of India, Aug. 31, 2014.
250
Kalpana Pandit vs. NCT of Delhi available at: www.nlrd.org/childrightsinitiatives/highcourtlatestjudgments
(Visited on September 25, 2014).
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 RULJ (2015) Vol. 1.1

involved in trafficking. The court directed the Administration at the highest level in Delhi Police
shall reconsider the feasibility of implementation of the instructions contained in the law.
Vishaka V. State Of Rajasthan251
The SC held that the sexual harassment of working women amounts to violation of right of
gender equality and right of life and personal liberty. It also amounts to the violation of right to
practice any profession, occupation or trade. The SC lays down certain guidelines to be observed
at all workplaces until legislation is enacted for the purpose. These guidelines would be treated
as law by SC under Article 141.

9. ROLE OF NGO’s IN PROTECTION AND CARE OF VICTIMS

The NGOs help the victims of trafficking to rehabilitate by providing the facilities to
approach the Police and courts to complain about such acts. NGOs around the globe are engaged
in combating trafficking engaged in variety activities including prevention, prosecution,
protection, raids, and reintegration.
a) NGO awareness campaign through MEDIA252
NGO to counter attack human trafficking should campaign for awareness through media.
As this problem is an issue in some countries which is often unnoted or given little attention.
This is true for a variety of reasons: a complete lack of understanding, the unwillingness of
governments to acknowledge that the problem exists in the countries; unavailable laws or lack of
resources to truly combat the problem. Now, we believe that the media is a great place to
heighten the consciousness of general public, and raise funds for NGOs and hopefully provide
more direct services to victim. There are some points which should be followed by NGOs to
combat with this problem-
 It should use major media outlets to run public service announcements. The information
regarding this can be posted on Facebook, twitter free social networking sites; buses can
also be used, television, radio.
 NGO should concentrate on large media outlets like BBC and CNN
 Celebrities have a particular ability to bring the human trafficking issue to the forefront

251
(1997) 6 SCC 241: AIR 1997 SC 3011.
252
Values of NGOs in countering human trafficking available at: www.naag.org/value-of-non-governmental-
organizations-in-countering-human-trafficking.php (Visited on September 30, 2014).
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 Working with private companies to both promote awareness and ensure that their own
supply channels are not involved in human trafficking is another way for NGO to tackle
the issue.
b) What should NGOs do?
In particular NGOs should play a watch dog role. NGOs should monitor the process of
development and implementation of international legislation and national policies. NGO should
check the impact of measures and actions taken (do no harm) and NGOs should be as critical
towards them and partner NGOs as towards authorities.
The community should be sensitized about trafficking. The community members should be
motivated to keep a watch in the community for irregular movement of child victims to and from
area their possible traffickers and hideouts. NGOs working in the rural areas should ensure that
parents are aware of safe migration practices.253
Role of Media254:
 The media should transmit appropriate message to ensure that the victims learn that they
are not alone.
 Victims can be made aware of places and institutions where they can seek help.
 Create awareness that human trafficking is inappropriate and illegal and has negative
consequences.
 Wide publicity should be given regarding the legal, penal provisions against trafficking
and the modus operandi of the traffickers through radio, television etc.
Human Trafficking: Chhattisgarh first State to implement placement agency act 255-
One of the vital steps towards restricting trafficking of women and children to metro cities,
Chhattisgarh becomes the first state to launch Private Placement Agencies (Regulation) Act
with the formation of required rules against placements agents. This act will bar any person,
agent or agency to take minor girls out for domestic or any sort of work, without having
license, says the act.

253
Child Trafficking in India available at: mecon.nomadit.co.uk (Visited on September 27, 2014).
254
Child Trafficking in India available at: mecon.nomadit.co.uk (Visited on September 27, 2014).
255
Rashmi Drolia ―Human Trafficking: Chhattisgarh first State to implement placement agency act‖ The Times of
India, August 4, 2014.
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10. ROLE OF GOVERNMENT IN HUMAN TRAFFICKING

Government is the primary key to combat Human Trafficking.
 Government at local level and source areas should create compulsory high quality
education, employment opportunities and income generation program.
 Government should produce relevant IEC materials; promote sensitization program for
teachers in government schools, parents and community workers.
 Government should include gender centered education curricula in schools and introduce
subjects of child sexual abuse and trafficking.
 The government of different nations must share the information with each other to evolve
a program that will help both the countries in preventing trafficking.
Government to stop human trafficking256- the government understands that human
trafficking is a serious social issue. We are also aware of the fact that if human trafficking is
checked totally only then there will be all-round development of the state. This statement was
given by Social Welfare minister Parveen Amanullah in Bihar.
Sex workers must not be allowed to operate, Centre tells Supreme Court257-Court agrees to
examine the whole issue at length that sex workers should not be allowed to operate in the
country under the cloak of working with dignity as suggested by a panel to prevent human
trafficking.

256
Editorial ―Govt to stop human trafficking: Minister‖ Times of India September 22, 2011.
257
Editorial ―Sex workers must not be allowed to operate, Centre tells the court‖ The Hindu Friday July 13, 2012.
124
CONCLUSION
The ending of this paper is that human trafficking is big business with a substantial
turnover, and corruption in institutions and bodies with responsibility for combating it is often
widespread. Therefore, there should be concerted and genuine efforts at successfully combating
of trafficking in persons and the reintegration of victims should resolve an entire range of
problems faced by the victims and their families, and in particular the root cause of human
trafficking, poverty, has to be addressed. The main problem of human trafficking is poverty,
lacking of education in rural areas. Mostly the people who are poor cannot afford to education.
So, the result is unawareness of the causes and effects of Human Trafficking. The laws are made
by the government to prevent trafficking and new laws are also being framed. The courts are
giving legal assistance to the victims. Rigorous evaluation of policies and programs are needed
to identify the most effective counter trafficking strategies and most appropriate care for the
people affected.
Recommendations for future measures—
- The laws related to human trafficking are required to be implemented properly by the
government officials.
- Poverty should be eradicated by providing all the basic facilities to the poor people
mainly- education, healthy food, employment. If this problem is solved then I think there
should be some decrease in human trafficking
- The individuals should be given the education of their human rights so that they can
know what they can do if their rights are violated.

125
 CONSTITUTION WITH RESPECT TO FLOW OF WATER

ARNABI DUTTA

The importance of water being one of the most important and primary natural resource
can never be denied, fulfilling the basic human needs and also for country's development, stands
as an precious asset of life. India being a federal state, makes it essential to provide and construct
an efficient and equitable mechanism for allocating river flows, so as to avoid the inter-state
friction, because federalism does not only mean, equitable distribution of power between centre-
state, but also equality between two states. Before independence, the matters related to irrigation
and water was a provincial subject, but due to the frequent friction between two provinces, B.R.
Ambedkar, when drafting the Constituion proposed an amendment for the necessity of setting up
a permanent body to deal with the water-dispute conflicts, and thus, Art. 262 was adopted in the
light of the considerations. However, it is noticeable, that the Constitution did not provide any
mechanism or procedure for solving the disputes, rather it has conferred the responsibility on the
Parliament to decide and take action in the concerned matter. Inter-state river water disputes in
India have long been recognized as an important federal issue. The ‗Sarkaria Commission‘ on
center-state relations (Government of India, 1988) presented an entire chapter to the problem,
and made a series of recommendations. In this article, an attempt has also been taken to discuss
the most recent Cauvery case which went to Supreme Court with the question of maintainability
of the orders and awards issued by the Tribunals, and its present stance. India's scenario in water-
disputes occurring and re-occurring in every occasion calls for a quick settlement through
arbitration or adjudication, but it has its own impediments for it, not working out in India.


3rd Year, B.A. L.L.B (Hons.), KIIT SCHOOL OF LAW, KIIT University, Bhubaneswar.
126
 1. INTRODUCTION
We say 'Water is life', and we say it time and again. The importance of water being one of
the most important and primary natural resource can never be denied, fulfilling the basic human
needs and also for country's development, stands as an precious asset of life. Though India is
blessed with plenty of water resources, India's case seems to be quite peculiar, as she has to
sustain around 17% of world's population having just around 4% of world's renewable water
resources and 2.6% of world's total land area. Therefore planning, management and development
of such calls for attention. Most of the larger rivers in India meanders through the administrative
boundaries of the Indian federal system. Sometimes river itself is a boundary and sometimes, a
river bifurcates itself into two tributaries across boundaries. India is a federal democracy, and
because rivers cross state boundaries, constructing efficient and equitable mechanisms for
allocating river flows has long been an important legal and constitutional issue. The regulation of
these river and river valleys continues to be a source of inter-state friction.
The history and origin of legislative action in this area dates back to pre-independence era.
In GOI, 1919, the matters relating to irrigation was made a provincial subject, while on the other
hand, matters which results in conflicts between two provinces were in the hands of central
legislation. GOI, 1935 gave attention to the river disputes between two provinces, which in turn
lead to the draft article of 239-242 of the draft of Constitution of India. During the consideration
of Draft constitutional provision, Dr. B.R Ambedkar proposed an amendment for the necessity of
setting up a permanent body to deal with the water-dispute conflicts, and thus, Art. 262 was
adopted in the light of the considerations.

2. CONSTITUTIONAL PROVISIONS
However, it is noticeable, that the Constitution did not provide any mechanism or
procedure for solving the disputes, rather it has conferred the responsibility on the Parliament to
decide and take action in the concerned matter by virtue of Entry 56 of list I. States have been
given power to legislate in respect of water supplies, irrigations and canals, drainage and
embankments, water storage and water power under Entry 17 of List II but is subjected to
legislative power of Union. With regards to the adjudication of dispute relating to waters of inter-
state rivers, Parliament is empowered to make law in this regard under Article 262 of the
Constitution. The debate which revolves in this regard is, whether water is a state subject or a

127
central. It is argued that Inter-state River and power sharing should be a state subject and
supremacy should be envisage to them. However, since several princely states joined the Indian
Union on conditions of certain amount of autonomy and many of these States were agrarian
economies, they refused to part with regulatory powers over water thus the Constitution had to
acknowledge this. States being quasi-sovereign bodies cannot be treated as ordinary entities
involved in property disputes. This is perhaps the rationale for the Article 262, enabling the
Parliament to make separate laws for adjudication of water disputes between States.258
Centre‘s role and jurisdiction with regard to water is reinforced by the use of circuitous
route through the provisions of Entry 20 in the Concurrent List, namely, ‗economic and social
planning‘ by virtue of which major and medium irrigation, hydro-power, flood-control and
multi-purpose projects have been subjected to the requirement of Central clearance for inclusion
in the national plan. This has been questioned by some State governments, but the clearance
requirement remains, and there is of course the requirement of Central clearances under the
Forest Conservation Act and the Environmental Protection Act. This leads to a plausible
conclusion that even without any constitutional amendments the centre can do a great deal in
relation to water.259

3. SARKARIA COMMISSION ON CENTRE-STATE RELATION

In the light of federalism and water resource management, the aspect of inter-state water
disputes is of prime importance. Considering the number of such disputes in the country, the
impact of those disputes on our federal scheme cannot be ignored, because real federalism does
not envisage a relationship between Centre and states but also between different states. In fact
inter-state river water disputes in India have long been recognized as an important federal issue.
The ‗Sarkaria Commission‘260 on center-state relations (Government of India, 1988) presented an
entire chapter to the problem, and made a series of recommendations. This commission paid
attention to the issue of enforcement of tribunal awards. Section 6 of The Inter-State Water
Dispute (ISWD) Act, 1956 says, The Union Government shall publish the decision of the
258
Udita Saraf, Inter-State river water dispute, (March 31,2015), http://www.lawctopus.com/academike/inter-state-
river-water-disputes/
259
Shahbaz Ahmad, Federalism In India with respect to flow of water, (April 1,2015),
http://www.lawyersclubindia.com/articles/FEDERALISM-IN-INDIA-WITH-RESPECT-TO-FLOW-OF-WATER-
1482.asp#.VR04ufmUfOE
260
Sarkaria Commission Report, Published BY GOVERNMENT OF INDIA, REPORT OF THE COMMISSION
ON CENTER STATE RELATIONS 487-93 (1988).
128
Tribunal in the Official Gazette and the decision shall be final and binding on the parties to the
dispute and shall be given effect by them. The commission report went on to suggest that the
centre cannot enforce the tribunal award if a state government refuses to implement the award. It
notes that the amendment of the act in 1980, inserting section 6A, which provides for an agency
to implement a tribunal award, is not sufficient because such an agency cannot function without
the cooperation of the states concerned. The Sarkaria Commission's recommendation is,
therefore, that a water tribunal's award should have the same force and sanction behind it as an
order or decree of the Supreme Court. Furthermore, the ISWD Act, Section 11 states that
'Notwithstanding anything contained in any other law, neither the Supreme Court nor any other
court shall have or exercise jurisdiction in respect of any water dispute which may be referred to
a Tribunal under this Act.'
One possible interpretation of this provision is that it does implicitly give water tribunals
broadly an equivalent status to the Supreme Court, and their decisions must have the same force.
Hence the centre can theoretically deal with a recalcitrant state by dismissing the state
government. However, this penalty, the only one seemingly available, is so great that it is hard to
imagine it being used solely for a water dispute, although it has been used extensively under
other pretexts. Once again, the resolution of water disputes is complicated by being tangled in
the general difficulties of centre-state federal issues. Thus the recommendation to amend the act
might not get to the crux of the problem.261 The Sarkaria Commission's other two
recommendations related to placing time limits on constituting tribunals and having them deliver
decisions. It says, it should be mandatory for the Union government to constitute a Tribunal
within a period of one year from the date of receipt of the application of any dispute. These
merely echoed the recommendations of the Administrative Reforms Commission nearly 20 years
before. Another recommendation was that the centre could appoint a tribunal without being
asked to do so by a state government, suo moto. A final recommendation was for the
establishment of a national level data bank and information system. But none of these
recommendations has been carried out yet.

261
Alan Richard & Nirvikar Singh, University Of California, Water and Federalism: India's Institutions governing
Inter-State River Waters, (April 1, 2015) , http://people.ucsc.edu/~boxjenk/waterdom.pdf

129
 Over the years, there have been plenty of inter-state water disputes, which after a period of
time lead to an agreement or an award. The awards of Krishna, Godavari, and Narmada tribunals
are the examples of conflict resolution. And subsequently there have been post- awards disputes
too, like the Telgu- Ganga project. One instance in which the conflict-resolution have not worked
is the case of Ravi- Baes waters. In this case, Canal irrigation was extensively used in the Indus
basin. By 1919, several projects were on the verge of being finalized, including the Sutlej
project, the Sukkur Barage project and the Bhakra project. But despite the Bahawalpur's
objections, the Sutlej Valley Project was completed by 1932. This lead to the appointment of
Anderson committee, to make reports about the dispute. The committee made unanimous
recommendations which were accepted by the State parties and GOI. Later the Sindh's even
complained and Rau Committee was appointed in 1941. But, the contestants, Punjab and Sindh,
rejected the recommendations. By 1945, an agreement was reached , but before a final decision
could be taken, the country was partitioned.
Also, several inter-state water dispute came up before the Supreme court with reference of
competence of Tribunal, non-implementation of order of Tribunal, failure on the environment
and rehabilitation fonts, etc. In each case what went before the Supreme court was more than the
water-sharing issue, but some other legal and constitutional issue. Analysing the decisions of
Supreme Court, we see that Supreme court has pointed to the constitutive tension between ''we
the people'' and "sovereign socialist secular democratic republic'' of India. Inter-state disputes
over water are of two types. One type of dispute relates to the rights of states and scope of their
rights within the Union. With the exception of reopening the terms of unification, the states may
apply to the Supreme Court to resolve questions of rights flowing from the constitution. Inter-
state rivers; on the other hand do not involve questions of rights flowing from the constitution
itself.262

4. THE CAUVERY CASE

The most recent controversial water-dispute is the one between Karnataka and Tamil Nadu
regarding the Cauvery waters. Though Kerala and Pondicherry are also parties to the dispute, but
because of the intractable stance taken by Karnataka and Tamil Nadu, the dispute is primarily

262
Udita Saraf, Inter-State river water dispute, (April 2, 2015), http://www.lawctopus.com/academike/inter-state-
river-water-disputes/
130
between these two states. The whole dispute revolves around the issue of re-sharing of waters
that are already being fully utilized. The Cauvery has been an important matter since 1947 after
the collapse of 50 years old agreement between Madras Presidency and princely Mysore state.
The Cauvery Basin is an Inter-State basin covering areas in Kerala, Karnataka, Tamil Nadu and
Karaikal region of Union Territory of Pondicherry. Use and development of Cauvery Waters
were regulated by agreements of 1892 and 1924 between the erstwhile Princely State of Mysore
and Province of Madras. In 1947, India won independence from the British. This changed the
equation massively. Tamil Nadu was carved out of the Madras Presidency and Mysore province
along with other Kannad speaking areas became the State of Karnataka. Further in 1956, the
reorganisation of states took place and state boundaries were redrawn. Coorg (the birth place of
Kaveri) , became a part of Mysore state. Huge part of Hyderabad state and Bombay presidency
joined with Mysore state. Parts of Malabar which was earlier a part of Madras Presidency went
to Kerala. Pondicherry became an Union territory by 1954. These changes lead to Kerala and
Pondicherry, jumping into the fray and complicated the matters greatly. By 1960s, both the
states, Karnataka and Tamil Nadu, and the Central Government began to realize the gravity of
the situation, as the tenure of agreement was approaching its end. Consequently, negotiations
were held, but did not result into any fruitful decision. From 1972-1990,there was ayacut
development and change in inter-state utilization of Cauvery waters, and claims from riparian
states became divergent. Thus, the state of Tamil Nadu requested the government of India to
constitute a Tribunal under ISWD act, 1956. Consequently, the Tribunal gave an Interim order.
Firstly, Karnataka was directed to ensure that 205 TMC feet of water was made available at
Metter, from its reservoirs in a twelve-month period from June to May until the final adjustment
of the dispute by the Tribunal. Secondly, Karnataka was directed not to increase its area of
irrigation from the Cauvery waters beyond 11.2 lakh acres. Following the interim order,
Karnataka witnessed its worst anti- Tamil riot, and the State of Karnataka rejected the interim
order, and issued an ordinance seeking to annul the Tribunal's award. However, Supreme Court
struck down the ordinance issued by Karnataka and upheld Tribunal's award. In 1995, again with
the bad monsoon, Karnataka found itself unable to fulfil the interim order. Tamil Nadu
approached the Supreme Court demanding the immediate release of at least 30 TMC, which the
apex refused to entertain. The Cauvery Water Disputes Tribunal examined the case and
recommended that Karnataka release only 11 TMC, which was again rejected by Karnataka.
131
Tamil Nadu went back to the Supreme Court demanding that Karnataka be forced to obey the
Tribunal's order. Yet again the mechanism failed and a series of controversy continued for over a
long span of time. In 2007, final award was given by the tribunal after holding many discussion
and debates for almost 17 years. It was decided that Tamil Nadu will get 419 thousand million
cubic ft(against the demand for 562); Karnataka 270 thousand million cubic; Kerala 30 and
Pondicherry 7 thousand million cubic ft. Karnataka will have to release 192 thousand million
cubic ft on a yearly basis and from that 7 thousand million cubic ft will be diverted to
Pondicherry. Also, some quantity of water was reserved for the purpose of environmental
protection and inevitable escapade into the sea. The order was accepted by Tamil Nadu and
Pondicherry but the government of Karnataka was not satisfied with it and it lead to massive
protest in the state. In pursuance of the 2007 award, Cauvery Water (Implementation of the
Order of 2007) Scheme, 2013 a temporary body was introduced by the government which is
given the responsibility of implementation of the decision of the Cauvery Water Dispute
Tribunal. However, the order is yet to be implemented as a Special Leave Petition on the matter
remains pending in the Supreme Court.

5. DISCUSSION AND DEBATE

The ISWD Act, Section 11 states that notwithstanding anything contained in any other
law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect
of any water dispute which may be referred to a Tribunal under this Act. Clearly, disputed issue
is whether the federal courts should have power to hold federal laws, and laws of the nations (or
states) in the federal union, void for inconsistency with the federal constitution. It is believed that
a deep understanding of the matter along with the constitutional provisions will show that this is
essential. The varieties of mechanisms available under the Constitution of India for the
settlement of inter-State disputes are Article 262, 263 and Article 131. Article 262 of the
Constitution starts with a marginal note ―Adjudication of disputes relating to waters of inter-
State rivers or river valleys‖. It empowers the Parliament to enact any law for the adjudication of
any dispute with respect to the use, distribution or control of the waters of, in any inter-State
river or river valley. Under this Provision ISWD Act,1956 was enacted but the result of it, as we
have seen, is complete failure in the present case. Article 263 contemplates for Inter-state council
to be constituted by the President for the settlement of dispute but this provision has been rarely

132
used. Article 131 provides for another alternative mechanism for inter-state water dispute. The
article is based largely on its antecedent i.e. section 204 of the Government of India Act, 1935. It
provides for the dispute settlement among the states and between the union and the states. But
the proviso of 131 excludes the Court‘s jurisdiction in respect of certain treaties, etc. Article 131
can only be invoked if so far as the dispute involves any question on which the existence of a
legal right which has been elaborately construed by the Supreme Court in various cases. The two
levels of government created in essence by federalism, make river dispute a complex one.263
Article 262 of the Constitution and the ISWD Act 1956 enacted under it are important
components of our federal structure. In terms of these provisions the award of a tribunal set up
under the ISWD Act is final and binding on the states concerned, and there can be no appeal to
Supreme Court against such an award, though there is a procedure for reference back to the
tribunal within a limited period of time. The intention of this kind of legislation was to obviate
recurring and prolongated inter-state disputes. The award granted by the Tribunal is virtually a
decision of Supreme Court. However, if the decision by the Tribunal is permanent and binding
then, there can be no question of it being rejected, as we saw it in the Cauvery case. The
Karnataka govt sought to nullify the interim order through Ordinance. Though the Supreme
Court rejected and established the ordinance as unconstitutional, still there emanates a danger for
the future of federalism.
Article 262 would also have been better if the constitution provided a machinery for
dispute resolution, and it would not be left to the parliament to provide the same. 5 years passed
before the Inter-State Water Disputes Act was passed in 1956. Article 262 grants power to make
a law; it does not impose a duty, for no court can issue a mandamus to the legislature to make a
law.264 Also no provision of the Constitution can be held ultra-vires, but any law, or part of law
made under Article 262 can be held ultra-vires.265
It is also possible to express doubts in the constitutional provisions regarding it. Entry 17
in the State list specifically mentions the uses of water such as water supply, irrigation, etc.

263
Mr. Naresh Pareek , Cauvery Dispute: An Instance of Judicial Fallacy, Manupatra, (April 3, 2015),
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=de3747ec-c2c9-4d14-a75a-
a7df26347aa2&txtsearch=Subject:%20Environment.
264
Seervai H.M., Constitutional Law of India, Vol.3 ( 4th Edition) pp. 3243
265
Ibid
133
 The word 'water' may doubtlessly includes groundwater, but there is no reference of the
latter. The centre has been given a role in relation to inter-state rivers and river valleys, but it is
conceivable that the intervention by one state in the flow of water, may cause social and
environmental consequence in other state. Constitution has not recognized any such
consequences. Though under 42nd Amendment of 1976, reference to protection of environment,
forest, wildlife were introduced in Articles 48A and 51A, and thus two entries were added to the
Concurrent List. But there is no explicit evidence of awareness of water being a natural resource
or awareness of traditional community managed systems of rain-water management, or the role
of civil society in this regards. However , some of these perceptions and concerns being very
recent, the constitution makers cannot have possibly foreseen these lacunas and developments. It
cannot be possible on the part of Constitution makers to spell out sectoral policies in details.

CONCLUSION
The Inter-state water disputes basically is resolved and settled either through negotiations
or though legal adjudication. But in the pure-conflict situation, which is very relevant in India's
inter-state dispute scenario, a search for negotiation may be futile, and a quick move to
arbitration or adjudication may be more efficient. However, in India this process is slow as well
as binding arbitration does not exist. The threat of rejecting an argument, has been the source of
various post-award disputes. This has cause inconvenience in several levels of water sharing
framework. Inefficient levels of investment by the individual, non-agreeing states, generating a
diversion of scarce investment resources, as well as inefficient use of the water itself are some of
the cons266. Extreme delays in constituting Tribunals has also been a costly feature in the process
of water disputes. The Narmada Tribunal was constituted in 1969 while Gujarat had lodged a
complaint in 1968 but the dispute itself dates back to 1963. Tribunals have taken long periods of
time to give their awards. It took nine years from reference in the case of the Narmada Tribunal,
four years in the case of the Krishna Tribunal and ten years in the case of the Godavari Tribunal.
All these together, can have an negative impact in the economic condition of the country, as well
as the centre-state federalism. The present constitutional position with relation to water is not
promising. Thus, we would argue that these impacts can be reduced by a more efficient design of

266
Alan Richard & Nirvikar Singh, University Of California, Water and Federalism: India's Institutions governing
Inter-State River Waters, (April 1, 2015) , http://people.ucsc.edu/~boxjenk/waterdom.pdf
134
mechanisms for negotiating interstate water disputes, some of the possibilities include a national
water commission independent of daily political pressures, a federated structure incorporating
river basin authorities and water user associations, and fixed time periods for negotiation and
adjudication.267

267
Ibid

135