NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE

SL NO IN THE JUDGMENT COMMENTS/NOTES/PARAS

LIST

CATEGORY-I: BASIC STRUCTURE CASES

1. 1 His Holiness Kesavananda Bharati BACKGROUND:

Sripadagalavaru v. State of Kerala (1973) 4 SCC
225 [13 judges] Majority 7; Minority 6 In the judgement of Golaknath vs State of Punjab (1967 AIR 1643), the
Supreme Court held the Parliament does not have the power to amend the
Part III of the Constitution containing the fundamental rights, as
fundamental rights are sacrosanct and indelible.
[BASIC STRUCTURE DOCTRINE].
Following Golaknath v State of Punjab, the Parliament passed a series of
amendments to overturn the Golaknath case’s judgement.

The 24th Constitution Amendment Act 1971 affirmed the power of the
Parliament to amend any part of the Constitution, including Part III, and
made it mandatory for the President to give his assent to a Constitutional
Amendment Bill.

The 25th Constitution Amendment Act 1972 curtailed the right to property
enshrined in Article 19(1) and Article 31, empowering the government to
acquire private property for public use in exchange for compensation decided
by Parliament rather than the courts.

Parliament included the Kerala Land Reforms Amendment Act 1969, and the
Kerala Land Reforms Amendment Act 1971 in the Ninth Schedule to the
Constitution.
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
2
Kesavananda Bharti filed a writ petition in the Supreme Court under Article
32 of the Indian Constitution to enforce his rights guaranteed by Article 25
which confers the right to practise and propagate religion), Article 26 which
guarantees the right to administer religious affairs, Article 14 provides right to
equality, Article 19(1)(f) provides freedom to acquire property, and Article 31
which provides for Compulsory Acquisition of Property.

ISSUES
i. Whether the 24th Constitutional Amendment Act 1971 is
constitutionally valid?

ii. Whether the 25th Constitutional Amendment Act 1972 is

constitutionally valid?

iii. What is the extent to which the Parliament can exercise its
power to amend the Constitution?

24th, 25th and 29th Amendment [Article 31C]

Sikri, C. J.: the fundamental importance of the freedom of the individual

has to be preserved for all times to come and that it could not be amended
out of existence. [para 283]

In conclusion the expression “amendment of this Constitution' * in Article

368 means any addition or change in any of the provisions of the
Constitution within the broad contours of the Preamble and the Constitution
to carry out the objectives in the Preamble and the Directive Principles.
Applied to fundamental rights, it would mean that while fundamental sights
cannot be abrogated reasonable abridgements of fundamental rights can be
effected in the public interest. (Para 287)
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
3
Article 368 can amend every article of the Constitution as long as the basic
structure and foundation of the Constitution remains the same. (Paras 292
and 395)

Per Shelat & Grover, JJ: Though the power to amend cannot be narrowly
construed and extends to all the Articles it is not unlimited so as to include
the power to abrogate or change the identity of the Constitution or its basic
features. [608]

Per Hegde & Mukherjsa, JJ.: the Parliament has no power to abrogate or
emasculate the basic elements or fundamental features of the Constitution
such as the sovereignty of India, the democratic character of our polity, the
unity of the country, the essential features of the individual freedoms
secured to the citizens. Nor has the Parliament the power to revoke the
mandate to build a Welfare State and egalitarian society. These limitations
are only illustrative and not exhaustive.

Despite these limitations, however, there can be no question that the

amending power is a wide power and it reaches every Article and every part
of the Constitution. That power can be used to reshape the Constitution to
fulfil the obligations imposed on the State. It can also be used to reshape the
Constitution within the limits mentioned earlier, to make it an effective
instrument for social good. (Para 666)

Per Khanna, J.: word “amendment” postulates that the old constitution
survives without loss of its identity despite the change and continues even
though it has been subjected to alterations. As a result of the amendment,
the old constitution cannot be destroyed and done away with; it is retained
though in the amended form. Retention means the retention of the basic
structure or framework of the old constitution. A mere retention of some
provisions of the old constitution even though the basic structure or
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
4
framework of the constitution has been destroyed would not amount to the
retention of the old constitution. (Para 1426)

Jaganmohan Reddy, J.: amplitude of the power of amendment in Article

368 cannot be enlarged by amending the amending power under proviso (<)
to Article 368. (Para 1150)

(Also read paras: 556, 759, 850, 1574, 1584, 1595, 1840)

i. (The majority view in Kesavananda Bharati Case) Chief Justice

SM Sikri and Justice, JM Shelat, Justice KS Hegde, Justice AN
Grover, Justice Jaganmohan Reddy, Justice Hans Raj Khanna, Justice
BK Mukherjea: The power to amend does not include the power to
change the basic structure of the Constitution to the point of altering
its identity. This proposition will be used to determine the legitimacy
of a constitutional amendment.

ii. (The majority view) Justice YV Chandrachud, Justice AN Ray,

Justice DG Palekar, Justice KK Mathew, Justice MH Beg, Justice SN
Dwivedi: the power of amendment under Article 368 is plenary, with
no implicit or inherent limits, and includes the ability to introduce,
change, or repeal various articles of the Constitution, except those
relating to fundamental rights.

iii. Although agreeing with this viewpoint, Justice Khanna had noted that
the power does not apply to changing the basic structure or framework
of the Constitution.

iv. Justice Ray and Justice Mathew agreed with the view of plenary rights,
but they believe that there cannot be a complete repeal of the
Constitution, resulting in a constitutional void. According to them, any
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5
reform should leave a government mechanism in place for the
development, interpretation, and enforcement of laws.

In the Indira Gandhi 1975 Supp SCC 1 an attempt was made to review the
judgment in Kesavananda Bharati and the basic structure doctrine

2. 3 Minerva Mills Ltd. & Ors. v. Union of India & The Golak Nath case, in which the CB of 11-judges ruled that the executive
Ors. (1980) 3 SCC 625. [5 judges] has limited jurisdiction to modify the constitution. The 24th Amendment,
which gave parliament unfettered power to modify any aspect of the
constitution, was passed to overturn this decision. This debate was
somewhat resolved in the landmark Kesavananda Bharati decision, which
concluded that the ability to change the Constitution is subject to the
constitution’s Basic structure.

To overturn all of these judgements, the parliament passed the contentious

42nd constitutional amendment. Regardless of whether they violate Article
14, 19, or 21 of the Constitution, Section 4 of the 42nd Amendment
preserves all actions done to enforce our Directive Principle of State policy
from being ruled unconstitutional. In addition, Section 55 gives the
parliament the power to amend the constitution. Both of these rules were
called into doubt in the Minerva Mills vs Union of India case.

By virtue of Sections 4 and 55 of the Constitution (Forty Second

Amendment) Act, 1976 the parliament sought to make changes to Article
31C and Article 368 of the Constitution.

These provisions were challenged on the ratio of the majority judgment in

Kesavananda Bharati's case that the Parliament cannot destroy the basic
structure of the Constitution through its power to amend.
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
6
Issues
i. Is it true that the constitution’s directive principles of state policy
(DPSP) take precedence over the fundamental rights outlined in
Part III?
ii. Whether the 42nd Constitutional Amendment’s Sections 4 and 55
contradict the constitution’s essential structure?

The Constitution bench held that the Section 4 and 55 of the Constitution
42nd Amendment Act is beyond the amending power of the Parliament and
is void since it damages the basic or essential features of the Constitution
and destroys its basic structure by a total exclusion of challenge to any law
on the ground that it is inconsistent with, or takes away or abridges any of
the rights conferred by Article 14 or Article 19 of the Constitution.

3. 6 Kihoto Hollohan v. Zachillhu and Others (1992) Issue: Questioned the vires of 10th Sch of the Constitution [Anti defection],
Supp 2 SCC 651 In the 10th Sch it is the Speaker who has been conferred the right to decide
whether the member has incurred disqualification and whether Speaker
being the politically appointed and hence he cannot be the judge to decide
the disqualifications and only the constitutional courts can decide it.

The Court considering the concept of severability in the context of vires of

[JUDICIAL REVIEW IS PART OF BASIC 10th Sch. Whether one provision of the 10th Schedule be invalidated or entire
STRUCTURE DOCTRINE] 10th Sch needs to be invalidated. Following principles were enumerated

1. Judicial Review was part of basic structure. The court held it is

impermissible for the Parliament to take away the power of JR.
2. That a speaker while functioning under 10th schedule is acting as
Tribunal.
3. JR limited to review if the Speaker has followed the Principles of
natural justice, and whether Speaker applied its mind.

(Paras 77, 78, 109, 110, 111 and 119)

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4. 8 S.R. Bommai and Ors. v. Union of India and Ors. Issue: Whether proclamation issued by the President under Artcle 356 of
(1994) 3 SCC 1 Constitution and whether the SC or HC can review the decision of the
President making proclaiming which is exercisable under the aid and advice
of ministers under Article 74.

[JUDICIAL REVIEW IS PART OF BASIC The question was whether Court was entering into political thicket and to
STRUCTURE DOCTRINE] what extent there can be judicial review and whether proclamation can be
invalidated and on what grounds.

The Court held that:

1) The JR is part of Basic Structure

2) Whether there was any material based on which power has been
exercised under Article 356.
3) When proclamation is questioned and prima facie case is made out
by the Petitioner it is for the UOI has to justify the issuance of
proclamation and material placed before president.

[read para 31-35 and 40-60]

5. 9 L Chandra Kumar v. Union of India and Others Part XIVA (14A) of the Constitution was inserted through Section 46 of the
(1995) 1 SCC 400. Constitution (42nd Amendment) Act, 1976 which totally excluded the
jurisdiction of 'all courts', except that of the Supreme Court under Article
136, in respect of disputes and complaints referred to in Clause (1) of Article
323A or with regard to all or any of the matters specified in Clause (2) of
[JURISDICTION UNDER 226 AND 32 IS PART OF Article 323B.
BASIC STRUCTURE DOCTRINE]
The parliament cannot enact any legislation which takes away powers of
High Court under Article 226 or of the Supreme Court under Article 32. The
jurisdiction conferred upon the High Courts under Articles 226/227 and
upon the Supreme Court under Article 32 of the Constitution is part of the
inviolable basic structure of our Constitution. While this jurisdiction
cannot be ousted, other courts and Tribunals may perform a supplemental
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
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role in discharging the powers conferred by Articles 226/227 and 32 of the
Constitution

6. 23 I.R. Coelho (Dead) By LRs. v. State of Tamil

Nadu [2007] 1 SCR706 (2007) 2 SCC 1

7. 33. Pramati Educational & Cultural Trust ® &Ors. v. Background: Clause (5) of Article 15 of the Constitution was inserted by
Union of India & Ors. (2014) 8 SCC 1 the Constitution (Ninety-third Amendment) Act, 2005 and Article 21A of
the Constitution was inserted by the Constitution (Eighty-Sixth
Amendment) Act, 2002 interalia mandating the state to make special
provision to provide free and compulsory education to all children of the
[MANDATING STATE TO MAKE SPECIAL age of six to fourteen years in such manner as the State may, by law,
PROVISION TO PROVIDE FREE AND COMPULSORY determine.
EDUCATION DOES NOT OFFEND BASIC
STRUCTURE] Following the mandate of Article 21A, the Right of Children to Free and
Compulsory Education Act, 2009, was also enacted. These
amendments/law were challenged before the Supreme Court.

The court, upholding Article 15(5), held that none of the rights under
Articles 14, 19(1)(g) and 21 of the Constitution have been abrogated by
clause (5) of Article 15 of the Constitution. The court also disapproved the
view that the imposition of reservation on unaided institutions by the
Ninety-third Amendment has abrogated Article 19(1)(g), a basic feature of
the Constitution is not correct

8. 36 Supreme Court Advocates-on-Record Also known as NJAC judgment. Validity of 99th Amendment which gave
Association and Another v. Union of India (2016) life to judicial appointments which came by way of an Act was questioned
(5) SCC 1 before the Supreme Court.

Judges to the Supreme Court of India and High Court of States are appointed
under articles 124 and 217 respectively. Transfer of High Court judges and
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
9
[INDEPENDENCE OF JUDICIARY AND MANNER OF Chief Justices of one High Court to another is made under article 222 of the
APPOINTMENT OF JUDGES IS BASIC STRUCTURE Indian constitution. Additional and acting judges are appointed under 224
OF CONSTITUTION] and 224 (A).

In S.P Gupta V/s President of India and Ors. [7 judges] -(First Judges
Case) dealt with a number of petitions involving important constitutional
questions regarding the appointment and transfer of judges and the
independence of judiciary. However in view of the majority decision (4:3)
all the transferred cases and writ petitions were dismissed. In this case the
court observed that the power of appointment of High Court judges is to be
exercised by the central government after consulting the Chief Justice
of India, the governor of the state and the chief justice of High Court
and of Supreme Court, were constitutional functionaries and that the
consultative role, and the power of appointments rested solely and
exclusively in the decision of the central government.

In Supreme Court AOR and another V/S UOI (second judges case) a nine
judges bench was constituted the two major questions i.e. the position of
CJI with reference to primacy and justiciability of fixation of judges. The
Court observed that the process of appointment of judges to the Supreme
Court and High Courts is an integrated participatory consultative
process. In this case it was also observed that the opinion of the Chief
Justice of India has not mere primacy, but is determinative in the
matter of transfers of High Court judges/ Chief Justices. Appointment
of CJI should be the senior most judge of the SC considered fit to hold the
office. In the situation of any of any dispute or the conflicting opinions,
the opinion of the judiciary symbolised by the view of CJI and formed
in the manner indicated, has primacy. The bench interpreted word article
“consultation” used in articles 124 and 217 means concurrence.

In 3rd judges case the expression ‘consultation with the Chief justice of
India’ in articles 217(1) of the constitution of India requires
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
10
consultation with plurality of judges in formation of the opinion of the
CJI.

After that 99th constitutional amendment was introduced in the parliament

by which the National Judicial Appointments Commission (NJAC) was all
set to remove the collegium system for appointment of judges in higher
courts. A new article 124(A), 124(B) and 124(C) was added to the
constitution. It comprised of CJI, two other senior most judges of SC , the
union minister of law and justice and two eminent persons (nominated by a
committee consisting of the CJI , Prime Minister of India, and leader of
opposition in LokSabha and in case there is no leader of opposition then the
leader of single largest party in LokSabha).

Whether Parliament by law make an inroad into judicial appointments and

whether such inroad is blocked by doctrine of basic structure.

The Court held that:

There is separation of power and such separation, separates Judiciary from

executive from Parliament and this is life blood of the constitution.

i. The manner of appointment of judges is essential part of

independence of judiciary (para 126)
ii. The amendment cannot vary so as to adopt different standards
by taking into consideration the strength of the members of the
legislature concerned which has approved and passed the bill
concerned. (para 296)
iii. Independence of judiciary is the basic structure of the
constitution. (380)
[also read para 300, 308, 346 and 380]
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9. 64 Madras Bar Association v. Union of India & Anr. After Rojer Mathew judgment, the he Tribunal Reforms Ordinance was
[2020] 2 S.C.R. 246 2020 (13) SCALE 443 promulgated by the parliament to nullify the judgement of the Supreme
Court.

Issue: Whether Section 12 and 13 of the Tribunal Reforms Ordinance and

[SEPARATION OF POWERS, JUDICIAL REVIEW 184 and 186 of the Finance Act are valid? and whether the parliament can
AND INDEPENDENCE OF JUDICIARY IS BASIC nullify the judgment of the Court and whether such act is valid act.
STRUCTURE]
The Supreme Court considered the validity of the Ordinance in realm of:

i. Separation of powers
ii. Judicial Review
iii. Independence of Judiciary.

The Supreme Court lad down four principles in para ___

i. The effect of the judgments of the court can be nullified by

legislative act removing the basis of the judgment, such
amendment can be retrospective and such amendment cannot be
unreasonable and arbitrary and must not be violative of FR
guaranteed under Part III.
ii. If the amended provision was before the Court, the court
wouldn’t have invalidated.
iii. The parliament cannot nullify the judgement of the court.
iv. Transgression by parliament in judicial power by legislation is
violation of separation of powers, rule of law and Article 14.

After this judgment, the Parliament passed the Tribunals Reforms Bill 2021,
that contains the same provisions which were struck down by the Supreme
Court.
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
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10. 55 Rojer Mathew v. South Indian Bank Limited and The Section 184 of the Finance Act of 2017 empowered the Central
Ors. [2019] 16 S.C.R. 1 (2020) 6 SCC 1 Government to frame rules relating to appointment and service conditions
of members of various tribunals. This was challenged in Rojer Mathew case.

The Constitution Bench, though upheld the Section 184 of the Finance Act,
2017, struck down the Tribunal, Appellate Tribunal and other Authorities
(Qualifications, Experience and other Conditions of Service of Members)
Rules, 2017. It was held that the Rules were contrary to the parent enactment
and the principles envisaged in the Constitution as interpreted by the
Supreme Court. The court also directed framing of new Rules by ensuring
'non-discriminatory and uniform conditions of service, including assured
tenure, keeping in mind the fact that the Chairperson and Members
appointed after retirement and those who are appointed from the Bar or from
other specialised professions/services, constitute two separate and distinct
homogeneous classes'.

11. 59 Keisham Meghachandra Singh v. The Hon'ble

Speaker Manipur Legislative Assembly & Ors.
[2020] 2 S.C.R. 132; 2020 (2) SCALE 329

CATEGORY-II: ARTICLE 21 AND JUDICIAL LEGISLATION

 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
13
12. 2 Maneka Gandhi [Link] of India [1978] 2 Facts: The passport of the petitioner, a journalist, was impounded “in public
SCR621 (1978) 1 SCC 248 interest” and the Government of India declined “in the interests of general
public” to furnish to her the reasons for its decision. Article 32 Petition was
filed by the Petitioner on the grounds that it violated Article 14, 19 and 21
[RIGHT TO TRAVEL ABROAD] of the Constitution.

Respondent in the counter-affidavit stated that the petitioner’s passport was

impounded because her presence was likely to be required in connection
with the proceedings before a Commission of Inquiry, which was then
functioning.

Issues:

i. Whether the right to travel abroad is within the ambit of “personal

liberty” asserted in Article 21?
ii. Whether any “procedure prescribed by law” which strips personal
liberty under Article21 is arbitrary and against the principle of
natural justice or not?
iii. Whether Section 10(3) of the Passport Act, 1967 violates Article
14, 19, and 21?

The Hon’ble Court after referring to Article 14-19 and Article 21 read with
provisions of the passport act held as under:

i. The bench opined that “personal liberty” protected and

guaranteed by Article 21 is very wide and comprehensive and it
includes the right to travel abroad within the ambit of personal
liberty.
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
14
ii. The orders passed under section 10(3) of the act should be
established on some material ground even reasonable apprehension
originating from creditable sources is sufficient cause.

iii. Although right to travel abroad is not integral or basic part of

Article 19 but that does not mean an order made under section
10 of the Passport act may not violate 19(1)(a) or (g) and action
may offend fundamental right. If the order cannot be shown to
have been made in the interests of public order, decency or
morality, it would not only contravene Article 19( l)(u). but
would also be outside the authority conferred by Section
10(3)(c).
iv. Every order made under a statutory provision must not only be
within the authority conferred but must also stand the test of
fundamental rights.
v. An order impounding a passport can be made by the passport
authority only if it is actually in the interests of the general public
to do so and it is not enough that the interests of general public
may be likely to be served in future by the making of the order.

vi. Though the right to go abroad is not included in the right

contained in Article 19( l)(a), if an order made under Section
10(3)(c) of the Act does in fact violate the right of free speech
and expression, such an order can be struck down as
unconstitutional. (para 56)

vii. The enquiry whether the right to travel abroad forms a part of
any of the freedoms mentioned in Article 19(1) is not to be shut
out at the threshold merely because that right is a part of the
guarantee of the personal liberty under Article 21.
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
15
viii. Procedure in Article 21, therefore, means fair not formal
procedure. Law is reasonable law not any enacted piece. (80-
85)
ix. It is a well-settled principle it is the right of an individual to have a
reasonable opportunity to be heard. The bench opined that the
Central government was entirely unjustified when they withheld
the explanations of the order from the petitioner and additionally
was in breach of statuary provision. They even did not provide the
petitioner the reasonable opportunity to be heard violating the
principle of natural justice embedded in audi alteram partem.

Conclusion

Following the decision, the Supreme Court assumed the role of watchdog
to maintain the constitution's essence and the intent of the constitutional
assembly that drafted it. The majority of judges believed that any legislation
or provision should be just, fair, and reasonable and that if it isn't, even the
most well-established or well-followed law might be called arbitrary. The
court ruled that any regulation that restricts a person's personal liberty must
pass the constitutional tests of Articles 21, 14, and 19. Article 21 also
protects natural justice principles, ensuring that no one is denied the right to
have their voice heard in court. Furthermore, the "golden triangle," i.e.
articles 14, 19, and 21, must be used to declare any governmental action or
law unconstitutional.

13. 11 D.K. Basu v. State of West Bengal [1996] 10 Background:

Suppl. SCR284 (1997) 1 SCC 416
Mr D K Basu addressed a letter to the Chief Justice of India based on media
CUSTODIAL DEATHS/TORTURES. reports indicating rise in deaths and violence which were being reported in
the police custody and lockups. The letter was treated as Writ Petition. The
question over police powers and the compensation to victims in case of
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
16
infringement of rights under Article 21 and 22 of the Constitution were also
raised.

Issue:
1. Pertained to Custodial Torture and Deaths by the Police and how the
criminal justice system deals with such facets of its functioning.
2. Is there any need to specify some guidelines to make an arrest?”

Held:
a. Articles 21 and 22(1) of the Constitution require to be jealously and
scrupulously protected. The expression “life or personal liberty” in
Article 21 includes the right to live with human dignity and thus it
would also include within itself a guarantee against torture and
assault by the State or its functionaries. The precious right
guaranteed by Article 21 cannot be denied to convicts , undertrials,
detenus and other prisoners in custody, except according to the
procedure established by law by placing such reasonable restrictions
as are permitted by law. It cannot be said that a citizen ‘sheds off ’
his fundamental right to life the moment a policeman arrests him.
Nor can it be said that the right to life of a citizen can be put in
‘abeyance’ on his arrest. (para 21)
b. Police is, no doubt, under a legal duty and has legitimate right to
arrest a criminal and to interrogate him during the investigation of
an offence but the law does not permit use of third-degree methods
or torture of accused in custody during interrogation and
investigation with a view to solve the crime. (28)

The Court issued guidelines: (see para 35)

(1) The police personnel carrying out the arrest and handling the
interrogation of the arrestee should bear accurate, visible and clear
identification a and name tags with their designations. The
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
17
particulars of all such police personnel who handle interrogation of
the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall
prepare a memo of arrest al the time of arrest and such memo shall
be attested by at least one witness, who may either be a member of
the family of the arrestee or a respectable person of the locality from
where the arrest is made. It b shall also be countersigned by the
arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in
custody in a police station or interrogation centre or other lock-up,
shall be entitled to have one friend or relative or other person known
to him or having interest in his welfare being informed, as soon as
practicable, that he has been arrested and is being detained at the
particular place, unless the attesting witness of the memo of arrest
is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must
be notified by the police where the next friend or relative of the
arrestee lives outside the district or town through the Legal Aid
Organisation in the District and the police station of the area
concerned telegraphically within a period of 8 to 12 hours after the
arrest.
(5) The person arrested must be made aware of this right to have
someone informed of his arrest or detention as soon as he is put
under arrest or is detained.
(6) An entry must be made in the diary at the place of detention
regarding the arrest of the person which shall also disclose the name
of the next friend of the person who has been informed of the arrest
and the names and particulars of the police officials in whose
custody the arrestee is.
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
18
(7) The arrestee should, where he so requests, be also examined at the
time of his arrest and major and minor injuries, if any present on
his/her body, must be recorded at that time. The “Inspection
Memo” must be signed both by the arrestee and the police officer
effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by a
trained doctor every 48 hours during his detention in custody by a
doctor on the panel of approved doctors appointed by Director,
Health Services of the State or Union Territory concerned. Director,
Health Services should prepare such a panel for all tehsils and
districts as well.
(9) Copies of all the documents including the memo of arrest, referred
to above, should be sent to the Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State
headquarters, where information regarding the arrest and the place
of custody of the arrestee shall be communicated by the officer
causing the arrest, within 12 hours of effecting the arrest and at the
police control room it should be displayed on a conspicuous notice
board.
The requirements, referred to above flow from Articles 21 and 22(1) of the
Constitution and need to be strictly followed. (para 37)

Conclusion:

The case thus gave a landmark judgement where guidelines regarding the
arrest of of a person were prescribed which aimed to protect the people in
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
19
custody. It is an obligation of the state to protect the citizens, either they are
accused of an offence or a normal innocent person.

14. 54 Dr. Ashwani Kumar v. Union of India and Court declined to direct the Centre to enact a separate legislation.
Another [2019] 12 SCR 30 2019 SCC 1144
Online SC

However, very recently in wake of the custodial death in State of UP and

Tamil Nadu, on an Application made by Dr Singhvi to revisit the guidelines
laid down in D K Basu interalia contending that the guidelines are not
sufficient and sought to frame fresh guidelines. Supreme Court was pleased
to issue notice and the matter is pending consideration.

15. 13 Vishaka and Ors. v. State of Rajasthan and Ors. Background:

[1997] 3 Suppl. SCR 404 (1997) 6 SCC 241
Pursuant to an incident of alleged brutal gang rape of social worker in a
village of Rajasthan, a Writ Petition got filed for the enforcement of the
fundamental rights of working women under Articles 14, 19 and 21 of the
SEXUAL HARASSMENT AT WORK PLACE. Constitution of India. At that time, there was no law to provide protection
to women against sexual harassment at work places.

The Court held that:

Each incident of sexual harassment of woman at workplace results in

violation of the fundamental rights of “Gender Equality” and the “Right to
Life and Liberty”. it is a clear violation of the rights under Articles 14, 15,
19 (1)(g( and 21 of the Constitution. (para 14).

The fundamental right to carry on any occupation, trade or profession

depends on the availability of a “safe” working environment. Right to life
means life with dignity. The primary responsibility for ensuring such safety
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
20
and dignity through suitable legislation, and the creation of a mechanism
for its enforcement, is of the legislature and the executive.

In the absence of enacted law to provide for the effective enforcement of

the basic human right of gender equality and guarantee against sexual
harassment and abuse, more particularly against sexual harassment at a
workplaces, guidelines and norms are hereby laid down for strict
observance at all workplaces or other institutions, until a legislation is
enacted for the purpose

The court issued the following guidelines: [para 17]

1. Duty of the Employer or other responsible persons in work

places and other institutions: It shall be the duty of the employer
or other responsible persons in work places or other institutions to
prevent or deter the commission of acts of sexual harassment and to
provide the procedures for the resolution, settlement or prosecution
of acts of sexual harassment by taking all steps required.
2. Definition: For this purpose, sexual harassment includes such
unwelcome sexually determined behaviour (whether directly or by
implication) as: a) physical contact and advances; b) a demand or
request for sexual favours; c) sexually coloured remarks; d) showing
pornography; e) any other unwelcome physical verbal or non-verbal
conduct of sexual nature. Where any of these acts is committed in
circumstances where under the victim of such conduct has a
reasonable apprehension that in relation to the victim's employment
or work whether she is drawing salary, or honorarium or voluntary,
whether in government, public or private enterprise such conduct
can be humiliating and may constitute a health and safety problem.
It is discriminatory for instance when the woman has reasonable
grounds to believe that her objection would disadvantage her in
connection with her employment or work including recruiting or
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
21
promotion or when it creates a hostile work environment. Adverse
consequences might be visited if the victim does not consent to the
conduct in question or raises any objection thereto.
3. Preventive Steps: All employers or persons in charge of work place
whether in the public or private sector should take appropriate steps
to prevent sexual harassment. Without prejudice to the generality of
this obligation they should take the following steps: (a) Express
prohibition of sexual harassment as defined above at the work place
should be notified, published and circulated in appropriate ways. (b)
The Rules/Regulations of Government and Public Sector bodies
relating to conduct and discipline should include rules/regulations
prohibiting sexual harassment and provide for appropriate penalties
in such rules against the offender. (c) As regards private employers
steps should be taken to include the aforesaid prohibitions in the
standing orders under the Industrial Employment (Standing Orders)
Act, 1946. (d) Appropriate work conditions should be provided in
respect of work, leisure, health and hygiene to further ensure that
there is no hostile environment towards women at work places and
no employee woman should have reasonable grounds to believe that
she is disadvantaged in connection with her employment.
4. Criminal Proceedings: Where such conduct amounts to a specific
offence under the Indian Penal Code or under any other law the
employer shall initiate appropriate action in accordance with law by
making a complaint with the appropriate authority. In particular, it
should ensure that victims, or witnesses are not victimized or
discriminated against while dealing with complaints of sexual
harassment. The victims of sexual harassment should have the
option to seek transfer of the perpetrator or their own transfer.
5. Disciplinary Action: Where such conduct amounts to mis-conduct
in employment as defined by the relevant service rules, appropriate
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
22
disciplinary action should be initiated by the employer in accordance
with those rules.
6. Complaint Mechanism: Whether or not such conduct constitutes
an offence under law or a breach of the service rules, an appropriate
complaint mechanism should be created in the employer's
organization for redress of the complaint made by the victim. Such
complaint mechanism should ensure time bound treatment of
complaints.
7. Complaints Committee: The complaint mechanism, referred to in
(6) above, should be adequate to provide, where necessary, a
Complaints Committee, a special counsellor or other support
service, including the maintenance of confidentiality. The
Complaints Committee should be headed by a woman and not less
than half of its member should be women. Further, to prevent the
possibility of any under pressure or influence from senior levels,
such Complaints Committee should involve a third party, either
NGO or other body who is familiar with the issue of sexual
harassment. The Complaints Committee must make an annual report
to the government department concerned of the complaints and
action taken by them. The employers and person in charge will also
report on the compliance with the aforesaid guidelines including on
the reports of the Complaints Committee to the Government
department.
8. Workers' Initiative: Employees should be allowed to raise issues
of sexual harassment at workers meeting and in other appropriate
forum and it should be affirmatively discussed in Employer-
Employee Meetings.
9. Awareness: Awareness of the rights of female employees in this
regard should be created in particular by prominently notifying the
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
23
guidelines (and appropriate legislation when enacted on the subject)
in suitable manner.
10. Where sexual harassment occurs as a result of an act or omission by
any third party or outsider, the employer and person in charge will
take all steps necessary and reasonable to assist the affected person
in terms of support and preventive action.
11. The Central/State Governments are requested to consider adopting
suitable measures including legislation to ensure that the guidelines
laid down by this order are also observed by the employers in Private
Sector.
12. These guidelines will not prejudice any rights available under the
Protection of Human Rights Act, 1993.

Conclusion:

In 2013, the Centre enacted Sexual Harassment of Women at Workplace

(Prevention, Prohibition and Redressal) Act, to provide protection against
sexual harassment of women at workplace and for the prevention and
redressal of complaints of sexual harassment.

16. 17 P. Rama Chandra Rao v. State of Karnataka In the year 1996, the Supreme Court in Common Cause vs. Union of India
[2002] 3 SCR 60 (2002) 4 SCC 578 [7 JUDGES] cases, issued some general directions inter alia prescribing periods of
limitation beyond which the trial of a criminal case or a criminal proceeding
cannot continue and must be closed followed by an order acquitting or
discharging the accused. A seven judge bench, overruling these directions,
TRIAL CANNOT BE TERMINATED ON ACCOUNT held:
OF LAPSE AND DELAY. COURTS CANNOT
1. The propositions emerging from Article 21 of the Constitution and
expounding the right to speedy trial laid down as guidelines in A.R.
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
24
PRESCRIBE ANY OUTER LIMIT FOR COMPLETION Antulay's case, adequately take care of right to speedy trial. We
OF TRIAL uphold and re-affirm the said propositions. The guidelines laid down
in A.R. Antulay's case are not exhaustive but only illustrative. They
are not intended to operate as hard and fast rules or to be applied like
a strait-jacket formula. Their applicability would depend on the fact-
situation of each case. It is difficult to foresee all situations and no
generalization can be made.
2. It is neither advisable, nor feasible, nor judicially permissible to
draw or prescribe an outer limit for conclusion of all criminal
proceedings. The time-limits or bars of limitation prescribed in the
several directions made in Common Cause (I), Raj Deo Sharma (I)
and Raj Deo Sharma (II) could not have been so prescribed or drawn
and are not good law. The criminal courts are not obliged to
terminate trial or criminal proceedings merely on account of lapse
of time, as prescribed by the directions made in Common Cause
Case (I), Raj Deo Sharma case (I) and (II). At the most the periods
of time prescribed in those decisions can be taken by the courts
seized of the trial or proceedings to act as reminders when they may
be persuaded to apply their judicial mind to the facts and
circumstances of the case before them and determine by taking into
consideration the several relevant factors as pointed out in A.R.
Antulay's case and decide whether the trial or proceedings have
become so inordinately delayed as to be called oppressive and
unwarranted. Such time-limits cannot and will not by themselves be
treated by any Court as a bar to further continuance of the trial or
proceedings and as mandatorily obliging the court to terminate the
same and acquit or discharge the accused.
3. The Criminal Courts should exercise their available powers, such as
those under Sections 309, 311 and 258 of Code of Criminal
Procedure to effectuate the right to speedy trial. A watchful and
diligent trial judge can prove to be better protector of such right than
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
25
any guidelines. In appropriate cases jurisdiction of High Court under
Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can
be invoked seeking appropriate relief or suitable directions.
17. 25 State of West Bengal & Ors. v. The Committee In this case, the Constitution Bench considered the issue whether the High
for Protection of Democratic Rights, West Bengal Court, in exercise of its jurisdiction under Article 226 of the Constitution of
& Ors. [2010] 2 SCR979 (2010) 3 SCC 571 [5 India, can direct the Central Bureau of Investigation (for short "the CBI"),
JUDGES] established under the Delhi Special Police Establishment Act, 1946 to
investigate a cognizable offence, which is alleged to have taken place within
the territorial jurisdiction of a State, without the consent of the State
Government.
POWER OF HIGH COURT UNDER 226 DIRECT
CBI INVESTIGATION IN ABSENCE OF STATE The court held that a direction by the High Court, in exercise of its
CONSENT. jurisdiction under Article 226 of the Constitution, to the CBI to investigate
a cognizable offence alleged to have been committed within the territory of
a State without the consent of that State will neither impinge upon the
federal structure of the Constitution nor violate the doctrine of
separation of power and shall be valid in law. Being the protectors of
civil liberties of the citizens, this Court and the High Courts have not only
the power and jurisdiction but also an obligation to protect the fundamental
rights, guaranteed by Part III in general and under Article 21 of the
Constitution in particular, zealously and vigilantly, the bench held.

Similar, views have been taken subsequently in Samaj Parivartan and

Akhilesh Yadav cases

18. 26 Smt. Selvi & Ors. v. State of Karnataka [2010] 5 The three judge bench considered the legal validity of involuntary
SCR381 (2010) 7 SCC 263 [3 judges] administration of certain scientific techniques, namely narcoanalysis,
polygraph examination and the Brain Electrical Activation Profile (BEAP)
test for the purpose of improving investigation efforts in criminal cases.

The court however observed that voluntary administration of the impugned

techniques in the context of criminal justice, provided that certain
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
26
INVOLUNTARY ADMINISTRATION OF safeguards are in place and any information subsequently discovered with
POLYGRAPHY/ BRAIN ELECTRICAL such test can be admitted in accordance with Section 27 of the Evidence
ACTIVATION/ LIE DETECTOR PERMISSIBILITY Act.

Referring to the 'Guidelines for the Administration of Polygraph Test (Lie

Detector Test) on an Accused' published by National Human Rights
Commission in 2000, the bench said that the same should be strictly adhered
to and similar safeguards should be adopted for conducting the
`Narcoanalysis technique' and the `Brain Electrical Activation Profile' test.
The following are the said guidelines:

(i) No Lie Detector Tests should be administered except on the basis

of consent of the accused. An option should be given to the accused
whether he wishes to avail such test.

(ii) If the accused volunteers for a Lie Detector Test, he should be given
access to a lawyer and the physical, emotional and legal implication
of such a test should be explained to him by the police and his
lawyer.

(iii) The consent should be recorded before a Judicial Magistrate.

(iv) During the hearing before the Magistrate, the person alleged to have
agreed should be duly represented by a lawyer.
(v) At the hearing, the person in question should also be told in clear
terms that the statement that is made shall not be a `confessional'
statement to the Magistrate but will have the status of a statement
made to the police.

(vi) The Magistrate shall consider all factors relating to the detention
including the length of detention and the nature of the interrogation.
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
27
(vii) The actual recording of the Lie Detector Test shall be done by an
independent agency (such as a hospital) and conducted in the
presence of a lawyer.

(viii) A full medical and factual narration of the manner of the

information received must be taken on record.

19. 28 Republic of Italy and Ors. v. Union of India and The Supreme Court examined the jurisdiction of the Kerala State Police to
Ors. [2013] 4 SCR595 (2013) 4 SCC 721 [2 investigate the incident of shooting of the two Indian fishermen on board
judges] their fishing vessel (2012 sea-firing incident near Kerala coast which killed
two Indian fishermen). The court also considered whether the Courts of the
Republic of Italy or the Indian Courts have jurisdiction to try the accused.

[ITALIAN MARINE CASE]

The court held that the State of Kerala has no jurisdiction to investigate into
the incident, and it is the Union of India which has jurisdiction to proceed
with the investigation and trial of the accused The Union of was thus
directed to set up a Special Court to try this case and to dispose of the same
in accordance with the provisions of the Maritime Zones Act, 1976, the
Indian Penal Code, the Code of Criminal Procedure and , the provisions of
UNCLOS 1982, where there is no conflict between the domestic law and
UNCLOS 1982.

Conclusion:

In July 2020, the Permanent Court of Arbitration(PCA) under the United

Nations Convention of Law of Seas ruled that India was entitled to claim
compensation from Italy for the death of Indian fishermen. However, the
International Tribunal also held that India has no jurisdiction to launch
criminal prosecution against the Marines as they had sovereign immunity.
Following this, the Centre informed the Supreme Court that it was accepting
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
28
the award of the PCA and sought to quash the pending cases against the
Marines. Later, after the compensation of Rupees 10 crores was deposited
by the Republic of Italy, the Supreme Court quashed the criminal
proceedings pending in India against two Italian Marines -Massimilano
Latorre and Salvatore Girone.

20. 31 Lalita Kumari v. [Link] U.P. and Ors. [2013] 14 While considering a petition seeking issuance of a writ of Habeas Corpus
SCR 713 (2014) 2 SCC 1 [5 jugdes] for the protection of his minor girl who has been kidnapped, the Court
considered the issue whether "a police officer is bound to register a First
Information Report (FIR) upon receiving any information relating to
commission of a cognizable offence under Section 154 of the Code of
1. Mandatory Registration of FIR Criminal Procedure, 1973 (in short 'the Code') or the police officer has the
2. Preliminarily Enquiry in selected cases power to conduct a "preliminary inquiry" in order to test the veracity of such
3. Preliminary enquiry when delay in information before registering the same?"
registration of FIR
4. Case diary to be maintained by every The court held:
police station and entry be made
thereunder 1. The registration of FIR is mandatory under Section 154 of the Code,
if the information discloses commission of a cognizable offence and
no preliminary inquiry is permissible in such a situation.
2. If the information received does not disclose a cognizable offence
but indicates the necessity for an inquiry, a preliminary inquiry may
be conducted only to ascertain whether cognizable offence is
disclosed or not.
3. If the inquiry discloses the commission of a cognizable offence, the
FIR must be registered. In cases where preliminary inquiry ends in
closing the complaint, a copy of the entry of such closure must be
supplied to the first informant forthwith and not later than one week.
It must disclose reasons in brief for closing the complaint and not
proceeding further.
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
29
4. The police officer cannot avoid his duty of registering offence if
cognizable offence is disclosed. Action must be taken against erring
officers who do not register the FIR if information received by him
discloses a cognizable offence.
5. The scope of preliminary inquiry is not to verify the veracity or
otherwise of the information received but only to ascertain whether
the information reveals any cognizable offence.
6. As to what type and in which cases preliminary inquiry is to be
conducted will depend on the facts and circumstances of each case.
7. The category of cases in which preliminary inquiry may be made are
as under:

a) Matrimonial disputes/ family disputes

b) Commercial offences

c) Medical negligence cases

d) Corruption cases

e) Cases where there is abnormal delay/laches in initiating

criminal prosecution, for example, over 3 months delay in
reporting the matter without satisfactorily explaining the
reasons for delay.

The aforesaid are only illustrations and not exhaustive of all

conditions which may warrant preliminary inquiry.

8. While ensuring and protecting the rights of the accused and the
complainant, a preliminary inquiry should be made time bound and
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
30
in any case it should not exceed 7 days. The fact of such delay and
the causes of it must be reflected in the General Diary entry.
9. Since the General Diary/Station Diary/Daily Diary is the record of
all information received in a police station, we direct that all
information relating to cognizable offences, whether resulting in
registration of FIR or leading to an inquiry, must be mandatorily and
meticulously reflected in the said Diary and the decision to conduct
a preliminary inquiry must also be reflected, as mentioned above.

21. 46 Shakti Vahini v. Union of India & Others [2018] Shakti Vahini, an NGO, had approached the Apex Court, seeking directions
3 SCR770 (2018) 7 SCC 192 to the State Governments and the Central Government to take preventive
steps to combat honour crimes. It had also prayed before the Court to direct
the State Governments to launch prosecutions in each case of honour killing
and take appropriate measures so that such honour crimes and embedded
KHAP PANCHAYAT/HONOR KILLING evil in the mindset of certain members of the society are dealt with iron
hands.

The Court, in its judgment, observed that the consent of the family or the
Preventive Steps:- community or the clan is not necessary once the two adult individuals agree
Remedial Measures- to enter into a wedlock. It held that any attempt by Khap Panchayats or any
other assembly to scuttle or prevent two consenting adults from marrying is
Punitive Measures absolutely "illegal". It issued the following directives as preventive,
remedial and punitive measures against honour crimes:

Preventive Steps:-

1. The State Governments should forthwith identify Districts, Sub-

Divisions and/or Villages where instances of honour killing or
assembly of Khap Panchayats have been reported in the recent past,
e.g., in the last five years.
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
31
2. The Secretary, Home Department of the concerned States shall issue
directives/advisories to the Superintendent of Police of the
concerned Districts for ensuring that the Officer In charge of the
Police Stations of the identified areas are extra cautious if any
instance of inter-caste or inter- religious marriage within their
jurisdiction comes to their notice.
3. If information about any proposed gathering of a Khap Panchayat
comes to the knowledge of any police officer or any officer of the
District Administration, he shall forthwith inform his immediate
superior officer and also simultaneously intimate the jurisdictional
Deputy Superintendent of Police and Superintendent of Police.
4. On receiving such information, the Deputy Superintendent of Police
(or such senior police officer asidentified by the State Governments
with respect to the area/district) shall immediately interact with the
members of the Khap Panchayat and impress upon them that
convening of such meeting/gathering is not permissible in law and
to eschew from going ahead with such a meeting. Additionally, he
should issue appropriate directions to the Officer Incharge of the
jurisdictional Police Station to be vigilant and, if necessary, to
deploy adequate police force for prevention of assembly of the
proposed gathering.
5. Despite taking such measures, if the meeting is conducted, the
Deputy Superintendent of Police shall personally remain present
during the meeting and impress upon the assembly that no decision
can be taken to cause any harm to the couple or the family members
of the couple, failing which each one participating in the meeting
besides the organisers would be personally liable for criminal
prosecution. He shall also ensure that video recording of the
discussion and participation of the members of the assembly is done
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
32
on the basis of which the law enforcing machinery can resort to
suitable action.
6. If the Deputy Superintendent of Police, after interaction with the
members of the Khap Panchayat, has reason to believe that the
gathering cannot be prevented 49 and/or is likely to cause harm to
the couple or members of their family, he shall forthwith submit a
proposal to the District Magistrate/Sub-Divisional Magistrate of the
District/ Competent Authority of the concerned area for issuing
orders to take preventive steps under the Cr.P.C., including by
invoking prohibitory orders under Section 144 Cr.P.C. and also by
causing arrest of the participants in the assembly under Section 151
Cr.P.C.
7. The Home Department of the Government of India must take
initiative and work in coordination with the State Governments for
sensitising the law enforcement agencies and by involving all the
stake holders to identify the measures for prevention of such
violence and to implement the constitutional goal of social justice
and the rule of law.
8. There should be an institutional machinery with the necessary
coordination of all the stakeholders. The different State
Governments and the Centre ought to work on sensitization of the
law enforcement agencies to mandate social initiatives and
awareness to curb such violence.
Remedial Measures

1. Despite the preventive measures taken by the State Police, if it

comes to the notice of the local police that the Khap Panchayat has
taken place and it has passed any diktat to take action against a
couple/family of an inter-caste or inter-religious marriage (or any
other marriage which does not meet their acceptance), the
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
33
jurisdictional police official shall cause to immediately lodge an
F.I.R. under the appropriate provisions of the Indian Penal Code
including Sections 141, 143, 503 read with 506 of IPC.
2. Upon registration of F.I.R., intimation shall be simultaneously given
to the Superintendent of Police/ Deputy Superintendent of Police
who, in turn, shall ensure that effective investigation of the crime is
done and taken to its logical end with promptitude.
3. Additionally, immediate steps should be taken to provide security to
the couple/family and, if necessary, to remove them to a safe house
within the same district or elsewhere keeping in mind their safety
and threat perception. The State Government may consider of
establishing a safe house at each District Headquarter for that
purpose. Such safe houses can cater to accommodate (i) young
bachelor-bachelorette couples whose relationship is being opposed
by their families /local community/Khaps and (ii) young married
couples (of an inter-caste or inter-religious or any other marriage
being opposed by their families/local community/Khaps). Such safe
houses may be placed under the supervision of the jurisdictional
District Magistrate and Superintendent of Police.
4. The District Magistrate/Superintendent of Police must deal with the
complaint regarding threat administered to such couple/family with
utmost sensitivity. It should be first ascertained whether the
bachelor-bachelorette are capable adults. Thereafter, if necessary,
they may be provided logistical support for solemnising their
marriage and/or for being duly registered under police protection, if
they so desire. After the marriage, if the couple so desire, they can
be provided accommodation on payment of nominal charges in the
safe house initially for a period of one month to be extended on
monthly basis but not exceeding one year in aggregate, depending
on their threat assessment on case to case basis.
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
34
5. The initial inquiry regarding the complaint received from the couple
(bachelor-bachelorette or a young married couple) or upon receiving
information from an independent source that the
relationship/marriage of such couple is opposed by their family
members/local community/Khaps shall be entrusted by the District
Magistrate/ Superintendent of Police to an officer of the rank of
Additional Superintendent of Police. He shall conduct a preliminary
inquiry and ascertain the authenticity, nature and gravity of threat
perception. On being satisfied as to the authenticity of such threats,
he shall immediately submit a report to the Superintendent of Police
in not later than one week.
6. The District Superintendent of Police, upon receipt of such report,
shall direct the Deputy Superintendent of Police incharge of the
concerned sub-division to cause to register an F.I.R. against the
persons threatening the couple(s) and, if necessary, invoke Section
151 of Cr.P.C. Additionally, the Deputy Superintendent of Police
shall personally supervise the progress of investigation and ensure
that the same is completed and taken to its logical end with
promptitude. In the course of investigation, the concerned persons
shall be booked without any exception including the members who
have participated in the assembly. If the involvement of the
members of Khap Panchayat comes to the fore, they shall also be
charged for the offence of conspiracy or abetment, as the case may
be.

Punitive Measures

1. Any failure by either the police or district officer/officials to comply

with the aforesaid directions shall be considered as an act of
deliberate negligence and/or misconduct for which departmental
action must be taken under the service rules. The departmental
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
35
action shall be initiated and taken to its logical end, preferably not
exceeding six months, by the authority of the first instance.
2. In terms of the ruling of this Court in Arumugam Servai (supra), the
States are directed to take disciplinary action against the concerned
officials if it is found that (i) such official(s) did not prevent the
incident, despite having prior knowledge of it, or (ii) where the
incident had already occurred, such official(s) did not promptly
apprehend and institute criminal proceedings against the culprits.
3. The State Governments shall create Special Cells in every District
comprising of the Superintendent of Police, the District Social
Welfare Officer and District Adi-Dravidar Welfare Officer to
receive petitions/complaints of harassment of and threat to couples
of inter-caste marriage.
4. These Special Cells shall create a 24 hour helpline to receive and
register such complaints and to provide necessary assistance/advice
and protection to the couple.
5. The criminal cases pertaining to honour killing or violence to the
couple(s) shall be tried before the designated Court/Fast Track Court
earmarked for that purpose. The trial must proceed on day to day
basis to be concluded preferably within six months from the date of
taking cognizance of the offence. We may hasten to add that this
direction shall apply even to pending cases. The concerned District
Judge shall assign those cases, as far as possible, to one
jurisdictional court so as to ensure expeditious disposal thereof.

22. 47 Navtej Singh Johar & Ors. v. Union of India Thr. The Delhi High Court decriminalised homosexuality by allowing the writ
Secretary Ministry of Law and Justice [2018] 7 petition filed by NAZ Foundation challenging the constitutional validity of
SCR 379 (2018) 10 SCC 1 Section 377 of the Indian Penal Code. Later in Suresh Kumar Koushal vs.
Naz Foundation, the Supreme Court set aside this judgment of the High
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
36
SECTION 377 (HOMOSEXUALITY) Court. The fresh petition filed by aggrieved persons which was referred to
Constitution Bench by a Division Bench headed by Justice Bobde. The
reference was made on the basis of submission that it was the first time that
individuals directly affected by the provision were approaching the Court.

The Constitution bench of the Supreme Court held Section 377 of the Indian
Penal Code is unconstitutional, to the extent it criminalizes consensual
sexual acts between adults, whether homosexual or heterosexual.
However, bestiality will continue as an offence. The court observed that
constitutional rights cannot be dictated by majoritarian views and
popular morality.

23. 50 Joseph Shine v. Union of India [2018] 11 Section 497 of the Indian Penal Code punished a married man for having
SCR765 (2019) 3 SCC 39 [5 judges] sex with wife of another man. However, the sexual act was exempted from
punishment if it is performed with the consent or connivance of the husband
of the other woman. Also, the provision exempted the wife from
punishment, and states that wife should not be even treated as an abettor.
SECTION 497 [ADULTERY]
In this case, a woman approached the Supreme Court challenging this
The judgment held Section 497 to be “manifestly provision.
arbitrary
Allowing the writ petition, the Constitution Bench struck down Section 497
of the Indian Penal Code as unconstitutional. “Any provision of law
affecting individual dignity and equality of women invites wrath of
5 JUDGES WROTE SEPARATE BUT CONCURRING constitution. It’s time to say that husband is not the master of wife. Legal
JUDGMENTS.
sovereignty of one sex over other sex is wrong”,

The judgment held Section 497 to be "manifestly arbitrary.

The Court however clarified that adultery will be a ground for divorce. It
was also stated that if an act of adultery leads the aggrieved spouse to
suicide, the adulterous partner could be prosecuted for abetment of suicide
under Section 306 of the IPC. The judgment also struck down Section
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
37
198(2) of the Code of Criminal Procedure, as a consequence of striking
down of Section 497 IPC.

24. 60 Sushila Aggarwal and Others v. State (NCT of The Constitution bench considered the issue (1) Whether the protection
Delhi) and Another [2020] 2 S.C.R. 1 (2020) 5 granted to a person under Section 438 Cr.P.C. should be limited to a fixed
SCC 1 [5 judges] period so as to enable the person to surrender before the Trial Court and
seek regular bail. (2) Whether the life of an anticipatory bail should end at
the time and stage when the accused is summoned by the court.

LIFE OF ANTICIPATORY BAIL

The Court held that anticipatory bail should not invariably be limited to a
fixed period. But if there are any special or peculiar features necessitating
the court to limit the tenure of anticipatory bail, it is open for it to do so.

The Court also held that life or duration of an anticipatory bail order does
not end normally at the time and stage when the accused is summoned by
the court, or when charges are framed, but can continue till the end of the
trial except in special and peculiar cases.

25. 35 Shreya Singhal v. Union of India [2015] 5 Section 66A was added to Information Technology Act. It provided for
SCR963 (2015) 5SCC 01 [2 judges] punishment for sending offensive messages through communication
service, etc.
SECTION 66A OF IT ACT STRUCK DOWN
Allowing the writ petitions challenging the constitutional validity of this
provision, the court held that this Section 66A arbitrarily, excessively and
disproportionately invades the right of free speech and upsets the balance
between such right and the reasonable restrictions that may be imposed on
such right. The court held that this Section is unconstitutional also on the
ground that it takes within its sweep protected speech and speech that is
innocent in nature and is liable therefore to be used in such a way as to have
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
38
a chilling effect on free speech and would, therefore, have to be struck down
on the ground of overbreadth.

Even after this judgment, crimes continued to be registered in various parts

of the country under Section 66A IT Act. In January 2019, the People’s
Union for Civil Liberties (PUCL), approached the Apex Court highlighting
the continued use of Section 66A of the Information Technology Act.
Agreeing with the suggestion mooted by the Attorney General of India, the
Supreme Court disposed of this application by directing all High Courts to
make available the copies of the Supreme Court judgment in ‘Shreya
Singhal v. Union of India’ to all the District Courts. The court had also
directed the Chief Secretaries of all states to sensitise the police departments
in this country by sending copies of this judgment to the Director General
of Police in each State. In July 2021, the Supreme Court again expressed
shock at the practice of police registering FIRs under Section 66A of the
Information Technology Act. The court issued notice to States, Union
Territories and Registrar of High Courts in a plea filed by Peoples Union
for Civil Liberties (PUCL) seeking various directions and guidelines against
the FIRs under provision of Section 66A struck down by Shreya Singhal
case judgement.

26. 44 Common Cause (A Regd. Society) v. Union of Background:

India & Another [2018] 6 SCR1 2018 (5) SCC 1.
[5 judges] After the judgment of Aruna Shanbaug case was delivered, the Law
Commission of India submitted its 241st Report which dealt with “Passive
Euthanasia — A Retook".

• MAJORITY OPINION AUTHORED BY DIPAK Writ Petition under 32 was filed for to declare "right to die with dignity" as
MISRA CJI ON BEHALF OF HIMSELF AND a fundamental right within the fold of “right to live with dignity” guaranteed
AM KHANWILKAR J under Article 21 of the Constitution; to issue directions to the respondents
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
39
• CONCURRING OPINION AUTHORED BY DY to adopt suitable procedure in consultation with the State Governments,
CHANDRACHUD J where necessary.
•
Three-Judge Bench of the Supreme Court comprising referred the matter to
a larger bench, to settle the issue in light of inconsistent opinions in Aruna
Ramchandra Shanbaug v Union Of India (2011) and Gian Kaur v State of
Punjab (1996).

Issue
a. Whether the right to die with dignity was a fundamental right within
the fold of the right to live with dignity guaranteed under Article 21
of the Constitution?
b. Whether euthanasia can be made lawful only by legislation.?

The Court held as under:

i. The Court extensively considered Indian and international

precedent, including the decision in K.S. Puttaswamy & Anr. vs.
Union of India & Ors. ((2017) 10 SCC 1) and held that the right to
die with dignity was a fundamental right under Article 21. The
Court exercising powers under Article 142 also validated the use of
Advance Medical Directives, noting that through this mechanism
individual autonomy could be safeguarded in order to provide
dignity in death. The Court discussed the development of the right
to privacy in some detail, noting that privacy is essential to human
dignity, without which liberty cannot be actualised. [paras 156,
160 and 166]

ii. The Court reaffirmed that the right to die with dignity was a
fundamental right, as declared by a Constitution Bench of the
Supreme Court in the case of Gian Kaur. The Court also clarified
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
40
that the ratio of Gian Kaur did not introduce the concept of passive
euthanasia. The Court discussed the distinction between active and
passive euthanasia, where active euthanasia requires an overt
action, whereas passive euthanasia is the act of withdrawal of life
support. It held that the Court in Aruna Shanbaug had erred in
holding that passive euthanasia could only be introduced
through a legislation. [para 164-165 r/w 202.4]

iii. dignity in death is protected by Article 21 and is enforceable against

the State.

The judgment has paved the way for the terminally ill patients to seek death
through the passive euthanasia under a "living will".

CATEGORY-III: ARBITRATION

27. 53 Ssangyong Engineering & Construction Co. Ltd. Scope of Section 34 of Arbitration Act.
v. National Highways Authority of India (NHAI)
[2019] 7 SCR522 2019(15) SCC 131 Issue:
i. What are the powers of the Court under Section 34 of the A&C
Act when Arbitral award is challenged?
ii. What is patent illegality?
[SCOPE AND POWERS OF COURT UNDER SECTION iii. What is perversity?
34 ]
The Court held as under:

i. Patent illegality is not violation of any law but violation of such

laws as are fundamental to our system of law.
ii. Perversity is when tribunal ignores material evidence in keeping
in the principles of judicial functioning or rewriting the terms of
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
41
the contract and the tribunal has rendered an award and such
award can be interfered with under Section 34 of the Act.

CATEGORY-IV- RESERVATIONS/MINORITY INSTITUTIONS

28. 7 Indra Sawhney and Ors. Etc. Etc. v. Union of Background:

India and Ors. Etc. Etc. [1992] 2 Suppl. SCR 454
1992 Supp 217(3) SCC. [Nine judges] In 1979 the Mandal Commission, also known as the Socially and
Educationally Backward Classes Commission, was established.

Aim: To identify socially or educationally disadvantaged groups and offer

them reservations in government services and positions. The Mandal
Commssion submitted its report in 1980, it recommended a reservation of
27 percent in government jobs for these castes.

Subsequently another order was passed which increased the reservation

limit to 37 percent while including economically, socially and
educationally backward classes as well

Issues

i. Whether caste on its own constitutes a different class and

whether economic criteria could by itself be the determinant of
a class.
ii. Whether Article 16(4) was an exception to Article 16(1) and is
exhaustive in itself of the rights of reservation.
iii. Does Article 16(4) allow classification of ‘Backward Classes’
into Backward Classes and Most Backward Classes or permit
classification among them based on economic or other
considerations.
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
42
The court in its judgement laid down the following rules

• Backward classes under Article 16(4) cannot be identified on the

basis of economic criteria but the caste system also needs to be
considered.
• Article 16(4) is not an exception to clause 1 but an instance of
classification as envisaged by clause 1.
• Backward classes in article 16(4) were different from the socially
and educationally backward mentioned in Article 15(4).
• The concept of a creamy layer was laid down and it was directed
that such a creamy layer be excluded while identifying
backward classes.
• Article 16(4) does allow the classification of backward classes into
backward and more backward.
• Reservation shall not exceed 50 percent, moreover, reservation in
promotions shall not be allowed.
• Any new disputes regarding criteria were to be raised in the Supreme
Court only.
i. Three judges have been categorical in stating the 50% rule.
Thommen J said the number of seats reserved ‘must at all times
remain well below 50%’. According to Kuldip Singh J ‘under no
circumstances’ should reservations go beyond 50%. Sahai J
noted that ‘reservation of any manner’ cannot cross 50%.
ii. Justice Jeevan Reddy’s judgment was written on behalf of
himself and three other judges: Kania CJI, Venkatachaliah and
Ahmadi [Link] that the 50% rule does apply. However, there
might be ‘extraordinary situations’ where it could be
exceeded. He noted particularly communities that were outside
the national mainstream and have special circumstances peculiar
to them.
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
43
iii. Justice Sawant’s judgment cites Ambedkar and says that
‘ordinarily’ reservations should not exceed 50%. But in
particular circumstances, if valid grounds are made out, then it
may be permitted.
iv. Pandian J firmly dissents. He holds that the 50% rule was never
binding. It was only ‘obiter’ (a non-binding remark) in Balaji,
the case in which this rule was born. This argument has been
adopted by the respondents, as they challenge the correctness of
Indra Sawhney.

Conclusion
The court in the Indra Sawhney case tried to come up with a solution that
is reasonable and strikes a fine balance between the society and rights of
the backward classes. Removing economic criteria as the sole determinant
of classification was also a step in the right direction as was the exclusion
of the creamy layer who had already benefited enough from affirmative
action
Recently, in Jaishri Laxmanrao Patil v Chief Minister, Maharashtra this
Court struck down Maharashtra’s Socially and Educationally Backward
Classes Act, 2018, which grants reservations to the Maratha community for
violating the 50% limit on reservations, The court held that the Act is
unconstitutional as it exceeds the 50% ceiling limit imposed on reservations
by Indra Sawhney v Union of India.

29. 49 Jarnail Singh & Others v. Lachhmi Narain Gupta BACKGROUND

& Others s [2018] 10 SCR663 (2018) 10 SCC-
396. [5 judges] Following Indra Sawhney judgment, Article 16 of the Constitution was
amended to provide for reservation in promotion for the Scheduled Castes
and the Scheduled Tribes. This was challenged before the Supreme Court
in M. Nagraj vs. Union of India. While upholding the amendments, the
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
44
Constitution Bench reiterated that the ceiling-limit of 50%, the concept of
creamy layer and the compelling reasons, namely, backwardness,
inadequacy of representation and overall administrative efficiency are all
constitutional requirements without which the structure of equality of
opportunity in Article 16 would collapse. It was further held that the State
is not bound to make reservation for SC/ST in matter of promotions and if
if they wish to exercise their discretion and make such provision, the State
has to collect quantifiable data showing backwardness of the class and
inadequacy of representation of that class in public employment in addition
to compliance of Article 335.

In Jarnail Singh, the Constitution Bench considered the reference which

doubted the correctness of the judgment in Nagraj. While holding that the
judgment in Nagraj Case, relating to reservations for SC/ST in promotions,
need not be referred for consideration of larger Bench, the court clarified
that there is no requirement to collect quantifiable data of backwardness of
SC/STs to provide reservation in promotions. The court noted that Indra
Sawhney judgment specifically held that 'the test or requirement of social
and educational backwardness cannot be applied to Scheduled Castes and
Scheduled Tribes, who indubitably fall within the expression "backward
class of citizens".The court also observed that the application of the creamy
layer test to Scheduled Castes and Scheduled Tribes in Nagraj did not in
any manner interfere with Parliament's power under Article 341 or Article
342.

CATEGORY-IV MINORITY INSTITUTIONS

30. 18 T.M.A. Pai Foundation and Ors. v. State of [2002] The TMA Pai Foundation case was a milestone 11-judge decision that
3 [Link] 587 (2002) 8 SCC 481 [11 judges] established the parameters of regulatory standards on private institutions
and continues to occupy the education area in terms of the validity of
Majority 6 statutory provisions. Article 30 of Part III of the Constitution particularly
provides for the educational rights of minorities “Establish and govern
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
45
1 consenting educational institutions of their choice” among the many specific
fundamental rights.
2 dissenting
The Court had framed about 11 questions however only relevant issues
were answered by the Court and other ancillary questions were left to be
decided by the respective benches.

The main questions were:

i. Is there any law allowing one to establish and govern an educational

institution?

ii. How will religious and linguistic minorities be decided—on the

grounds of the state or the entire country?

iii. Whether or not the government’s rules on minority-affiliated or

unaffiliated institutions violate Article 30?

iv. As for what degree can the government place limits on minority-aided
and unassisted institutions’ management?

The Court answered the questions as under:

Q. 4. Whether the admission of students to minority educational
institution, whether aided or unaided, can be regulated by the State
Government or by the university to which the institution is affiliated?
A. Admission of students to unaided minority educational institutions
viz. schools and undergraduate colleges where the scope for merit-based
selection is practically nil, cannot be regulated by the State or university
concerned, except for providing the qualifications and minimum conditions
of eligibility in the interest of academic standards.
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
46
The right to admit students being an essential facet of the right to
administer educational institutions of their choice, as contemplated under
Article 30 of the Constitution, the State Government or the university may
not be entitled to interfere with that right, so long as the admission to the
unaided educational institutions is on a transparent basis and the merit is
adequately taken care of. The right to administer, not being absolute, there
could be regulatory measures for ensuring educational standards and
maintaining excellence thereof, and it is more so in the matter of admissions
to professional institutions.
A minority institution does not cease to be so, the moment grant-in-aid
is received by the institution. An aided minority educational institution,
therefore, would be entitled to have the right of admission of students
belonging to the minority group and at the same time, would be required to
admit a reasonable extent of non-minority students, so that the rights under
Article 30(1) are not substantially impaired and further the citizens' rights
under Article 29(2) are not infringed. What would be a reasonable extent,
would vary from the types of institution, the courses of education for which
admission is being sought and other factors like educational needs. The
State Government concerned has to notify the percentage of the non-
minority students to be admitted in the light of the above observations.
Observance of inter se merit amongst the applicants belonging to the
minority group could be ensured. In the case of aided professional
institutions, it can also be stipulated that passing of the common entrance
test held by the State agency is necessary to seek admission. As regards non-
minority students who are eligible to seek admission for the remaining seats,
admission should normally be on the basis of the common entrance test held
by the State agency followed by counselling wherever it exists.
Q. 5. (a) Whether the minorities' rights to establish and administer
educational institutions of their choice will include the procedure and
method of admission and selection of students?
A. A minority institution may have its own procedure and method of
admission as well as selection of students, but such a procedure must be fair
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
47
and transparent, and the selection of students in professional and higher
education colleges should be on the basis of merit. The procedure adopted
or selection made should not be tantamount to maladministration. Even an
unaided minority institution ought not to ignore the merit of the students for
admission, while exercising its right to admit students to the colleges
aforesaid, as in that event, the institution will fail to achieve excellence.
Q. 5.(b) Whether the minority institutions' right of admission of students
and to lay down procedure and method of admission, if any, would be
affected in any way by the receipt of State aid?
A. While giving aid to professional institutions, it would be permissible
for the authority giving aid to prescribe bye-rules or regulations, the
conditions on the basis of which admission will be granted to different aided
colleges by virtue of merit, coupled with the reservation policy of the
State qua non-minority students. The merit may be determined either
through a common entrance test conducted by the university or the
Government concerned followed by counselling, or on the basis of an
entrance test conducted by individual institutions — the method to be
followed is for the university or the Government to decide. The authority
may also devise other means to ensure that admission is granted to an aided
professional institution on the basis of merit. In the case of such institutions,
it will be permissible for the Government or the university to provide that
consideration should be shown to the weaker sections of the society.
Q. 5.(c) Whether the statutory provisions which regulate the facets of
administration like control over educational agencies, control over
governing bodies, conditions of affiliation including
recognition/withdrawal thereof, and appointment of staff, employees,
teachers and principals including their service conditions and regulation of
fees, etc. would interfere with the right of administration of minorities?
A. So far as the statutory provisions regulating the facets of
administration are concerned, in case of an unaided minority educational
institution, the regulatory measure of control should be minimal and the
conditions of recognition as well as the conditions of affiliation to a
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
48
university or board have to be complied with, but in the matter of day-to-
day management, like the appointment of staff, teaching and non-teaching,
and administrative control over them, the management should have the
freedom and there should not be any external controlling agency. However,
a rational procedure for the selection of teaching staff and for taking
disciplinary action has to be evolved by the management itself.

V.N. KHARE, J. (concurring)—

229. In India, the framers of the Constitution of India with a view to
instil a sense of confidence and security in the mind of the minorities have
conferred rights to them under the Constitution. One of such rights is
embodied in Article 30 of the Constitution. Under Article 30 the minorities
either linguistic or religious have the right to establish and administer
educational institutions of their choice. However, under the Constitution
every citizen is equal before law, whether he may belong to minority group
or minority community. But right conferred on the minority under Article
30(1) would serve no purpose when they cannot admit students of their own
community in their own institutions. In order to make Article 30(1)
workable and meaningful, such rights must be interpreted in the manner in
which they serve the minorities as well as the mandate contained in Article
29(2). Thus, where minorities are found to have established and
administering their own educational institutions, the doctrine of the real de
facto equality has to be applied. The doctrine of the real de facto equality
envisages giving a preferential treatment to members of minorities in the
matter of admission in their own institutions. On application of the doctrine
of the real de facto equality in such a situation not only Article 30(1) would
be workable and meaningful, but it would also serve the mandate contained
in Article 29(2). Thus, while maintaining the rule of non-discrimination
envisaged by Article 29(2), the minorities should have also right to give
preference to the students of their own community in the matter of
admission in their own institution. Otherwise, there would be no meaningful
purpose of Article 30(1) in the Constitution. True, the receipt of State aid
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
49
makes it obligatory on the minority educational institution to keep the
institution open to non-minority students without discrimination on the
specified grounds. But, to hold that the receipt of State aid completely
disentitles the management of minority educational institutions from
admitting students of their community to any extent will be to denude the
essence of Article 30 of the Constitution. It is, therefore, necessary that the
minority be given preferential rights to admit students of their own
community in their own institutions in a reasonable measure otherwise there
would be no meaningful purpose of Article 30 in the Constitution.
S.S.M. QUADRI, J. (partly dissenting) —
277. There can be no demur to the dicta that government regulations
cannot destroy the minority character of the institution or make the right to
establish and administer a mere illusion but to say that the right under
Article 30 is not so absolute as to be above the law, would, in my respectful
view, amount to conferring supremacy to the ordinary law over the
provisions of the Constitution which would be contrary to Article 13 of the
Constitution, as the laws whether existing or made in exercise of power
conferred by the Constitution have to be consistent with the provisions of
the Constitution and Part III which includes Article 30 and not vice versa.
RUMA PAL, J. (partly dissenting)—

Analysis

i. It is the fundamental right of the minorities to set up their educational

institutions but these rights given to them under Article 30(1) will
not be absolute. It must be read with article 29(2) and also concerning
all the other fundamental rights. The state can impose reasonable
restrictions on such institutions.
ii. The minority institutions can admit students as per the criteria
decided by them if they are not getting any aid from the state. The
admission process should be transparent, merit-based, and fair. Merit
should not be compromised even if it is an unaided minority
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
50
institution. In the case of aided institutions, the state can regulate the
admission process for the forward classes. It was also recommended
that the primary criteria for admissions should be merit while
keeping in mind the need to make special provisions for candidates
of the backward classes. The admissions policy of the state should be
redrafted and implemented accordingly.
iii. Even the recruitment of the teaching staff should be fair. Basic
provisions to regulate the aforesaid things can be made by the state
but the independence of the minority institutions should not get
damaged.
iv. Fees charged by unaided minority institutions cannot be regulated,
however it shouldn’t be higher than what is approved by the
regulatory norms.
v. Moreover, State can regulate the service conditions of the teaching
and administrative staff without impeding general administrative
control. If minority institutions get any financial aid and grants from
the state then they should reserve some seats for the open category
also to a reasonable extent based upon merit.
vi. The minority institutions are of two categories i.e., aided and unaided
educational institutions. Unaided educational institutions have more
autonomy than aided ones. Since the minority institutions allow non-
minority students for admissions based upon merit, it will not amount
to a contravention of Article 29(2) despite the institution admitting
minority students of their choice. Finally, it was held by the court
that 50 percent of the total seats of the petitioner’s educational
institutes will be selected by the state government based on
competitive exams or some other alternative tests. The candidates
will pay fees as per the limit sanctioned by the state government.

NOTE: The Supreme Court in Ashwini Kumar Upadhyay v Union of India

is considering if Section 2(f) of The National Commission for Minority
Educational Institutions Act, 2004 and Section 2(c) of The National
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
51
Commission for Minorities Act, 1992 is constitutionally valid. This case will
determine if minority status should be granted according to national
population or on a state-wise basis.

31. P.A. Inamdar v. State of Maharashtra, (2005) 6

SCC 537 [7 judges]

27. In the light of the two orders of reference, referred to hereinabove,

Also read Islamic Academy [(2003) 6 SCC 697] we propose to confine our discussion to the questions set out hereunder
which, according to us, arise for decision:
(1) To what extent can the State regulate admissions made by
unaided (minority or non-minority) educational institutions? Can the
State enforce its policy of reservation and/or appropriate to itself any
quota in admissions to such institutions?
Para 132. that neither the policy of reservation can be enforced by the State
nor any quota or percentage of admissions can be carved out to be
appropriated by the State in a minority or non-minority unaided educational
institution. Minority institutions are free to admit students of their own
choice including students of non-minority community as also members of
their own community from other States, both to a limited extent only and
not in a manner and to such an extent that their minority educational
institution status is lost. If they do so, they lose the protection of Article
30(1).
(2) Whether unaided (minority and non-minority) educational
institutions are free to devise their own admission procedure or whether
the direction made in Islamic Academy [(2003) 6 SCC 697] for
compulsorily holding an entrance test by the State or association of
institutions and to choose therefrom the students entitled to admission
in such institutions, can be sustained in light of the law laid down in Pai
Foundation [(2002) 8 SCC 481] ?
NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
52
Para 138: That having regard to the larger interest and welfare of the
student community to promote merit, achieve excellence and curb
malpractices, it would be permissible to regulate admissions by providing a
centralised and single-window procedure. Such a procedure, to a large
extent, can secure grant of merit-based admissions on a transparent basis.
Till regulations are framed, the Admission Committees can oversee
admissions so as to ensure that merit is not the casualty
(3) Whether Islamic Academy [(2003) 6 SCC 697] could have
issued guidelines in the matter of regulating the fee payable by the
students to the educational institutions?
139. To set up a reasonable fee structure is also a component of “the right
to establish and administer an institution” within the meaning of Article
30(1) of the Constitution, as per the law declared in Pai Foundation [(2002)
8 SCC 481] . Every institution is free to devise its own fee structure subject
to the limitation that there can be no profiteering and no capitation fee can
be charged directly or indirectly, or in any form (paras 56 to 58 and 161
[answer to Question 5(c)] of Pai Foundation [(2002) 8 SCC 481] are
relevant in this regard).
Para 130. …We cannot approve of the scheme evolved in Islamic
Academy [(2003) 6 SCC 697] to the extent it allows the States to fix quota
for seat-sharing between the management and the States on the basis of local
needs of each State, in the unaided private educational institutions of both
minority and non-minority categories. That part of the judgment in Islamic
Academy [(2003) 6 SCC 697] in our considered opinion, does not lay down
the correct law and runs counter to Pai Foundation [(2002) 8 SCC 481] .
141. Our answer to Question 3 is that every institution is free to devise its
own fee structure but the same can be regulated in the interest of preventing
profiteering. No capitation fee can be charged.
(4) Can the admission procedure and fee structure be regulated or
taken over by the Committees ordered to be constituted by Islamic
Academy [(2003) 6 SCC 697] ?
 NOTES ON LEADING CASES BY RAJESH INAMDAR, ADVOCATE
53
32.

33.

CATEGORY-IV- IBC

34.