case study on violation of fundamental rights in india

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Bhasin v. Union of India

Closed Mixed Outcome

• Key details

Key Details

• Mode of Expression Electronic / Internet-based Communication
• Date of Decision January 10, 2020
• Outcome Declaratory Relief
• Case Number Writ Petition (Civil) No. 1031/2019
• Region & Country India, Asia and Asia Pacific
• Judicial Body Supreme (court of final appeal)
• Type of Law Criminal Law
• Themes Access to Public Information, Internet Shutdowns, National Security
• Tags Public Order

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Case Analysis

Case summary and outcome.

The Supreme Court of India ruled that an indefinite suspension of internet services would be illegal under Indian law and that orders for internet shutdown must satisfy the tests of necessity and proportionality. The case concerned the internet and movement restrictions imposed in the Jammu and Kashmir region in India on August 4, 2019, in the name of protecting public order. In the end, however, the Court did not lift the internet restrictions and instead, it directed the government to review the shutdown orders against the tests outlined in its judgment and lift those that were not necessary or did not have a temporal limit. The Court reiterated that freedom of expression online enjoyed Constitutional protection, but could be restricted in the name of national security. The Court held that though the Government was empowered to impose a complete internet shutdown, any order(s) imposing such restrictions had to be made public and was subject to judicial review.

Jammu and Kashmir is an Indian territory bordering Pakistan that has been the subject of a decades-long dispute between the two countries. Under Article 370 of the Indian Constitution, the territory enjoyed special status, had its own Constitution and Indian citizens from other states were not allowed to purchase land or property there. On August 5, 2019, the Indian Government issued Constitution (Application to Jammu and Kashmir) Order, 2019 , which stripped Jammu and Kashmir of its special status that it had enjoyed since 1954 and made it fully subservient to all provisions of the Constitution of India.

In the days leading up to this Constitutional Order, the Indian government began imposing restrictions on online communication and freedom of movement. On August 2, the Civil Secretariat, Home Department, Government of Jammu and Kashmir, advised tourists and Amarnath Yatra pilgrims to leave the Jammu and Kashmir area in India. Subsequently, schools and offices were ordered to remain closed until further notice. On August 4, 2019, mobile phone networks, internet services, landline connectivity were all shutdown in the region. The District Magistrates imposed additional restrictions on freedoms of movement and public assembly citing authority to do so under Section 144 of the Criminal Penal Code.

The internet shutdown and movement restrictions (hereafter “restrictions”) limited the ability of journalists to travel and to publish and accordingly were challenged in court for their violations of Article 19 of India’s Constitution which guarantees the right to freedom of expression. In this context, the Supreme Court of India reviewed the following petitions challenging the legality of the internet shutdown and movement restrictions:

• the petition was brought by Ms. Anuradha Bhasin, the editor of the Kashmir Times Srinagar Edition. She argued the internet is essential for the modern press and that by shutting it down, the authorities forced the print media to come to “a grinding halt.” Because of this she had been unable to publish her newspaper since August 6, 2019. She also argued that the government failed to consider whether the internet shutdown was reasonable and proportionate to the aims it pursued. She argued that the restrictions were passed in the belief that there would be “a danger to law and order. However, public order is not the same as law and order and neither were at risk when the order was passed.”
• an Intervenor in the matter argued that by giving the State carte blanche to restrict fundamental rights in the name of national security and terrorism prevention would allow the State to impose broad restrictions on fundamental rights in varied situations. Further, the restrictions censored the discussion of the passage of the Constitutional Amendment stripping Jammu and Kashmir of special status by the persons living there. Lastly, the restrictions were supposedly temporary in nature, but lasted over 100 days.
• another Intervenor in this matter argued that the State failed to prove the necessity of the restrictions. “The people have a right to speak their view, whether good, bad or ugly, and the State must prove that it was necessary to restrict the same.” Further, the petitioner argued that the restriction was not proportionate. The State had to consider the effect of the restrictions on fundamental rights, which did not occur here. “it is not just the legal and physical restrictions that must be looked at, but also the fear that these sorts of restrictions engender in the minds of the populace, while looking at the proportionality of measures.”
• the petitioner Mr. Ghulam Nabi Azad (a Member of Parliament belonging to the largest opposition party in India’s upper house) argued that restrictions must be based on objective reasons and not merely on conjectures. Moreover, the official orders must not be kept secret by the State. The state of emergency used by the authorities to justify the restrictions could be declared only in light of an “internal disturbance” or “external aggression” under Article 356 of the Constitution, neither of which occurred. Further, the petitioner argued that restrictions on movement must be specific in scope, targeting those who may disturb the peace, and cannot be applied broadly against the public in general. When imposing restrictions, the State must choose the least restrictive measures and balance the safety of people with the lawful exercise of their fundamental rights, which did not occur here. Concerning the internet shutdown, the petitioner argued that internet restrictions did not merely affect freedom of expression but also the right to trade as well as the ability of political representatives to communicate with their constituents.
• the petition was withdrawn at some state, but the court noted that it argued that the restrictions caused broad harm even to regular and law-abiding citizens. India’s Attorney General and Solicitor General defended the restrictions.

The Attorney General argued that the restrictions were a measure to prevent terrorist acts and were justified considering the history of cross border terrorism and internal militancy that had long plagued the State of Jammu and Kashmir. The Attorney General recalled that similar steps had been taken in the past, for example, in 2016 after a terrorist had been killed there.

The Solicitor General reiterated the historical necessity argument and noted that a State’s first and foremost duty is to ensure security and protect the citizens’ lives. He also argued that the facts laid down by the petitioners were false and exaggerated the effects of the restrictions. Particularly, he noted that individual movement had never been restricted, that restrictions were imposed only in certain areas and were relaxed soon after, and that all newspapers, television and radio channels were functioning.

Further, the Solicitor General argued that even before the Constitutional Order for abrogating Article 370 had been issued, the issue was a subject of speculation in Jammu and Kashmir, including provocative speeches and messages. Accordingly, government officers on the ground decided that the restrictions were necessary, and courts have limited jurisdiction to question their judgment since issues of national security were at stake.

Specifically, concerning the communications and internet shutdown, the Solicitor General submitted that the internet was never restricted in the Jammu and Ladakh regions. He added that social media, which allowed people to send messages and communicate with a number of people at the same time, could be used as a means to incite violence. According to him, the internet allowed for the transmission of false news or fake images, which were then used to spread violence. Further, he claimed that the “dark web” allowed individuals to purchase weapons and illegal substances easily.

The Solicitor General rejected the argument that free speech standards as they related to newspapers applied to the internet on the grounds that their differences were too great. He explained that while newspapers only allowed one-way communication, the internet made it possible to communicate in both directions, making dissemination of messages very simple. He concluded that it was not possible to ban only certain websites or parts of the Internet while allowing access to other parts, as the government learned in 2017.

Decision Overview

The Supreme Court began by stating that in light of the facts of the present case, the objective of the Court was to “to strike a balance between the liberty and security concerns so that the right to life is secured and enjoyed in the best possible manner,” and leave the “propriety” of the orders at issue for “democratic forces to act on.” [para. 1]

The Court then identified five issues from the arguments presented by the petitioners and the government:

• Whether the Government can claim exemption from producing all of the restriction orders?
• Whether freedom of speech and expression and freedom to practice any profession, or to carry on any occupation, trade or business over the Internet is a part of the fundamental rights protected by Article 19(1)(a) and Article 19(1)(g) of the Constitution?
• Whether the Government’s action of prohibiting internet access is valid?
• Whether the imposition of movement restrictions under Section 144 of the Code of Criminal Procedure was valid?
• Whether the freedom of the press of the Petitioner in W.P. (C) No. 1031 of 2019 was violated due to the restrictions?

The five issues above were analyzed by the Court in four sections:

• Whether the Government can claim exemption from producing all the orders for the restrictions?

The Court held that the State had to produce the orders imposing the restrictions. It began by noting the difficulty it had experienced in determining the legality of the restrictions when the authorities had refused to produce the orders imposing the said restrictions. Citing the precedent in Ram Jethmalani v. Union of India , (2011) 8 SCC 1, the Court explained that the State had an obligation to disclose information in order to satisfy the right to remedy as established in Article 32 of India’s Constitution. Furthermore, Article 19 of India’s Constitution had been interpreted to include the right to information as an important part of the right to freedom of speech and expression. The Court added, “a democracy, which is sworn to transparency and accountability, necessarily mandates the production of orders as it is the right of an individual to know.” [para. 15] These fundamental rights obliged the State to act responsibly in protecting them and prohibited the State from taking away these rights casually.The Court reiterated that no law should be passed in secret because of an anticipated danger to democracy that such acts may entail.  To make its point, the Court cited James Madison, “a popular government, without popular information, or the means of acquiring it, is but a prologue to a farce or a tragedy; or perhaps both. Knowledge will forever govern the ignorance and a people who mean to be their own governors must arm themselves with the power which knowledge gives.” [para. 16]The State was thus obliged to take proactive steps to make public any law restricting fundamental rights unless there was a countervailing public interest reason for secrecy. However, even in such cases, the Court would be the body to weigh the State’s privileges against the right to information and decide what portions of the order could be hidden or redacted. In the present case, the State initially claimed privilege, but then dropped the claim and released some of the orders, explaining that all could not be released because of unspecified difficulties. For the Court, such justification was not a valid ground.

2. Did the restrictions affect freedom of movement, freedom of speech and expression and right to free trade and vocation?

First, the Court reiterated that freedom of expression guaranteed under Article 19 of India’s Constitution extended to the internet. The Court recalled its extensive jurisprudence that extended protections to new mediums for expression. In Indian Express v. Union of India , (1985) 1 SCC 641, the Supreme Court ruled that freedom of expression protects the freedom of print medium. In Odyssey Communications Pvt. Ltd. v. Lokvidayan Sanghatana , (1988) 3 SCC 410, it was held that the right of citizens to screen films was a part of the fundamental right of freedom of expression. Online expression has become one of the major means of information diffusion, and accordingly it was integral to the enjoyment of freedom of speech and expression guaranteed by Article 19(1)(a) , but also could also be restricted under Article 19(2) of the Constitution.

Accordingly, the Internet also plays a very important role in trade and commerce, and some businesses were completely dependent on the internet. Therefore the freedom of trade and commerce by using the internet was also constitutionally protected under Article 19(1)(g ), subject to the restrictions provided under Article 19(6). The Court, however, did not go as far as to declare the right to access the internet as a fundamental right because none of the parties to the case made that argument.The Court then discussed whether freedom of expression could be restricted and to what extent. India’s Constitution allows the Government to restrict freedom of expression under Article 19(2) as long as the restrictions were prescribed by law, were reasonable, and were imposed for a legitimate purpose. The Constitution lists an exhaustive list of reasonable restrictions that include “interests of the sovereignty, integrity, security, friendly relations with the foreign States, public order, decency or morality or contempt of Court, defamation or incitement to an offence.” [para. 31] By reviewing its jurisprudence concerning the application of Article 19(2), the Court concluded that restrictions on free speech and expression could impose complete prohibitions. In such cases, the complete prohibition should not excessively burden free speech and the government has to explain why lesser alternatives would be inadequate. Lastly, whether a restriction amounts to a complete prohibition is a question of fact to be determined by the Court on the circumstances of each case.

The Court then turned to the geopolitical context of the restrictions. It agreed with the Government that Jammu and Kashmir had long been plagued by terrorism. The Court noted that modern terrorists relied heavily on the internet, which allowed them to disseminate false information and propaganda, raise funds, and recruit others to their cause. Accordingly, the Indian authorities argued that the “war on terrorism” required imposition of the restrictions “so as to nip the problem of terrorism in the bud.” [para. 37] The Court noted that “the war on terror” was unlike territorial fights and transgressed into other forms affecting normal life, thus it could not be treated as a law and order situation.

The Court then reviewed the U.S. First Amendment and its jurisprudence from 1863 to the present day to conclude that speech which incites imminent violence is not protected. The Court highlighted that American leaders and the judiciary repeatedly restricted freedom of expression in the name of national security. The first of these cases was from 1863, Vallandigham, (Vallandigham 28 F. Cas. 874 (1863), when Mr. Vallandigham was found guilty and imprisoned during the American Civil War for publicly calling it “‘wicked, cruel and unnecessary.” In Abrams v. United States ,  250 U.S. 616 (1919), Justice Holmes wrote that the power to the United States government can punish speech that produces or is intended to produce a clear and imminent danger, and that this power “undoubtedly is greater in time of war than in time of peace, because war opens dangers that do not exist at other times.” [para. 40] In Dennis v. United States , 341 US 494 (1951), the US Supreme Court held that the “societal value of speech must, on occasion, be subordinated to other values and considerations.” [para. 41] In Brandenburg v. Ohio , 395 US 444 (1969), the US Supreme Court held that the State can punish advocacy of unlawful conduct only if it intends to incite and is likely to incite “imminent lawless action.” Lastly, the Indian Court recalled that in the post 9/11 context, US Attorney General Ashcroft criticized those questioning the erosion of fundamental rights as the result of the war on terror. Specifically saying, “to those… who scare peace loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists, for they erode our national unity and diminish our resolve. They give ammunition to America’s enemies…” [para. 44] The Court recalled that in the recent Modern Dental College & Research Centre v. State of Madhya Pradesh , (2016) 7 SCC 353 it found that no constitutional right can be claimed to be absolute considering the interconnectedness of all rights, and accordingly could be restricted. In that judgment, the Court also found that when there are tensions between fundamental rights, they must be balanced against each other so that “they harmoniously coexist with each other.” [para. 55]

Just as the First Amendment, the Indian Constitution allows the Government to restrict freedom of expression, but per the Indian Constitution such restrictions must be proportionate. The Court stressed that the standard of proportionality was key to ensuring that a right is not restricted beyond what is necessary. That said, the Court expressed caution at balancing national security with liberty and rejected the notion that a government should be prohibited from achieving a public good at the cost of fundamental rights. With this in mind, the Court defined proportionality as the question of whether “regulating exercise of fundamental rights, the appropriate or least ­restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case maybe.” [para. 53] The Supreme Court then proceeded to conduct an extensive comparative review of proportionality tests used by Indian, German and Canadian Courts. It found that while there was agreement that proportionality was the key tool to achieve judicial balance when resolving questions of restrictions on fundamental rights, there was no agreement that proportionality and balancing were equivalent. The Court then outlined its understanding of the test of proportionality:

• The goal of the restriction must be legitimate.
• The restriction must be necessary.
• The authorities must consider if alternative measures to the restriction exist.
• The least restrictive measure must be taken.
• The restriction must be open to judicial review.

The Court added that the “degree of restriction and the scope of the same, both territorially and temporally, must stand in relation to what is actually necessary to combat an emergent situation… The concept of proportionality requires a restriction to be tailored in accordance with the territorial extent of the restriction, the stage of emergency, nature of urgency, duration of such restrictive measure and nature of such restriction.” [para. 71]

3. The legality of the Internet Shutdown

Having laid out the principles of proportionality and reasonable restrictions, the Court turned to assessing the restriction imposed on freedom of speech online. It outright rejected the State’s justification for a total ban on the internet because it lacked the technology to selectively block internet services as accepting such logic would have given the State green light to completely ban internet access every time. However, the Court conceded that there was “ample merit in the contention of the Government that the internet could be used to propagate terrorism thereby challenging the sovereignty and integrity of India” and thus it had to determine the extent to which the restriction burdened free speech.  [para. 76]

The Court highlighted that it had to consider both procedural and substantive elements to determine the Constitutional legality of the internet shutdown. The procedural mechanism has two components. First, there is the contractual component between Internet Service Providers and the Government. Second, there is the statutory component as enshrined under the Information Technology Act , 2000, the Code of Criminal Procedure , 1973 and the Telegraph Act . In its analysis, the Court focused largely on the latter as it directly applied to the case at hand.

The Suspension Rules under Section 7 of the Telegraph Act were passed in 2017 and allowed the government to restrict telecom services, including access to the internet, subject to certain safeguards. These safeguards were that first, the suspension orders may be issued only by the Secretary to the Government of India in the Ministry of Home Affairs or by the Secretary to the State Government in charge of the Home Department. In unavoidable circumstances another official not below the rank of a Joint Secretary to the Government of India may issue the orders provided that the competent authority approves the orders within 24 hours of its issuance. Without approval the suspension must be lifted within 24 hours. The orders must include reasons for the suspension and its copy must be sent to a Review Committee consisting of senior State officials. The reasons should not only explain the necessity of the suspension but also the “unavoidable” circumstance which necessitated the order.

Furthermore Section 5(2) of the Telegraph Act permitted suspension orders only in a situation of public emergency or in the interest of public safety. The Court thus found that to issue a suspension order, the Government first had to determine that a public, and not any kind of other, emergency existed. “Although the phrase “public emergency” has not been defined under the Telegraph Act , it has been clarified that the meaning of the phrase can be inferred from its usage in conjunction with the phrase “in the interest of public safety” following it.” [para. 92]

The Supreme Court noted that the definition of an emergency varies. For example, “ Article 4 of the International Covenant on Civil and Political Rights, notes that ‘[I]n time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed…’. Comparable language has also been used in Article 15 of the European Convention on Human Rights which says­ “In time of war or other public emergency threatening the life of the nation”. We may only point out that the ‘public emergency’ is required to be of serious nature, and needs to be determined on a case to case basis.” [para. 93]

Although the Suspension Rules do not provide for publication or notification of the orders, the Court noted that public availability of a government order is a settled principle of law and of natural justice, particularly if an order affects lives, liberty and property of people. The Court reiterated that Article 226 of India’s Constitution grants an aggrieved person the constitutional right to challenge suspension orders.

Finding it necessary, the Court once again reiterated that “complete broad suspension of telecom services, be it the Internet or otherwise, being a drastic measure, must be considered by the State only if ‘necessary’ and ‘unavoidable’. In furtherance of the same, the State must assess the existence of an alternate less intrusive remedy.” [para. 99]

The Court noted that the Suspension Rules do not indicate the maximum duration of a suspension order. Nonetheless, considering the principle of proportionality, the Court opined that indefinite suspension is impermissible. Since the Suspension Rules were silent on the length of a permissible shutdown, the Court found that it was up to the Review Committee to determine its duration and to ensure that it would not extend beyond a period which was necessary.

The State submitted eight orders to the Court. Four were passed by the Inspector General of the Police and the other four by the government of Jammu and Kashmir. The Solicitor General explained that the authorities relaxed some restrictions but were continuously appraising the situation on the ground. The Court conceded that the danger to public safety could not be ignored, but noted that any new restrictions would have to be imposed on the basis of a new order. Since the Court could not view all orders to understand which were no longer in effect and could not assess the public order situation, it “moulded the relief in the operative portion.” [para. 102]

4. Restrictions Under Section 144 of the Code of Criminal Procedure Code

The Petitioners argued that to justify restrictions under Section 144 of the Cr.P.C, the State had to prove that there “would be an action which will likely create obstruction, annoyance or injury to any person or will likely cause disturbance of the public tranquility, and the Government could not have passed such orders in anticipation or on the basis of a mere apprehension.” [ para. 103] The State argued that “the volatile history, overwhelming material available even in the public domain about external aggression, nefarious secessionist activities and the provocative statements given by political leaders, created a compelling situation which mandated passing of orders under Section 144.” [ para. 104]

The Court noted that Section 144 is one of the mechanisms that enable the State to maintain public peace and it could be invoked in urgent cases of nuisance or perceived danger. Thus, it allows the State to take preventive measures to deal with imminent threats to public peace. The Section contains several safeguards to prevent its abuse, including an assessment by a magistrate to conclude that there were sufficient grounds for restrictions under the section, identification of a person(s) whose rights may be restricted, and determining the length of the restriction.

Judicial precedent established that restrictions under Section 144 cannot be imposed merely because there was likelihood or tendency of danger, but only to immediately prevent specific acts that may lead to danger. The restriction could be imposed on an entire area if it contains groups of people disturbing public order. Indefinite restrictions under Section 144 are unconstitutional. Orders passed under Section 144 were executive orders subject to judicial review under Article 226 of the Constitution. The State cannot impose repetitive orders, which would be an abuse of power.

The Petitioners also argued that maintaining “law and order” would warrant a narrower set of restrictions than “public order,” under Section 144. The Supreme Court agreed that the notions of “public order” and “law and order” differed, with the latter being the broadest. The Court described the differences as concentric circles with law and order representing the largest circle “within which is the next circle representing public order and the smallest circle represents security of State.” [para. 120] Allowing the imposition of restrictions to protect law and order would thus broaden the authority of the government to impose restrictions. Further, not all disturbances of law and order undermined public order.

The Court, however, agreed that there may be times when it is impossible to distinguish between the individuals who may break public order and those who do not pose a threat. “A general order is thus justified but if the action is too general, the order may be questioned by appropriate remedies for which there is ample provision in the law.” [para, 124]

Nevertheless, the Court noted that “orders passed under Section 144 , Cr.P.C . have direct consequences upon the fundamental rights of the public in general. Such a power, if used in a casual and cavalier manner, would result in severe illegality.” [para. 129] Thus, it is imperative to indicate the material facts necessitating the passing of such orders.  The Court conceded that the State is best placed to assess threats to public order, but it had to exhibit the material facts to justify an order under Section 144 to enable judicial scrutiny and verification of the order’s legitimacy. A key consideration is the perceived imminence of the threat and whether invoking Section 144 was the proper remedy to prevent potential harm. Magistrates must balance the the right and restriction on the one hand against the right and duty on the other, and any restrictions must be proportionate, i.e. “never allowed to be excessive either in nature or in time.” [para. 39] Further, “[o]rders passed mechanically or in a cryptic manner cannot be said to be orders passed in accordance with law.” [para. 134]

Although the restrictions may have been removed, the Court stated that it cannot ignore noncompliance with the law in this case, as the issue at hand is not just about what happened in Jammu and Kashmir but also about imposing a check on the State. The Court reiterated that a government must follow the law if it feels that there is a threat to public order.

Thus, the Court concluded that the power under Section 144 could be exercised “not only where there exists present danger, but also when there is an apprehension of danger. However, the danger contemplated should be in the nature of an ‘emergency’ and for the purpose of preventing obstruction and annoyance or injury to any person lawfully employed.” [para. 140] The power cannot be used to suppress legitimate expression and should be used only in the presence of material facts justifying its application.

5. Freedom of the Press

The Court rejected the Petitioners’ arguments that the restrictions on movement and communication imposed in Jammu and Kashmir directly curtailed freedom of the press and journalists’ ability to perform their professional duties. The Court began by highlighting the importance of freedom of the press. It recalled that as early as in 1914, the freedom of the press had been recognized in India. In Channing Arnold v. The Emperor , (1914) 16 Bom LR 544, the Privy Council stated that: “the freedom of the journalist is an ordinary part of the freedom of the subject and to whatever length, the subject in general may go, so also may the journalist, but apart from the statute law his privilege is no other and no higher. The range of his assertions, his criticisms or his comments is as wide as, and no wider than that of any other subject.” [para. 142] It was thus not doubted that the freedom of the press is a valuable and sacred right protected by the Indian Constitution.

The Court interpreted the Petitioners to claim that the imposed restrictions did not necessarily have a direct but rather an indirect as well as a chilling effect on their freedom of expression. However, the Court found that the Petitioners failed to offer evidence that the restrictions restricted the publishing of newspapers in Jammu and Kashmir or to challenge the State’s argument that newspapers were published and distributed during the communication and movement lockdown. “In view of these facts, and considering that the aforesaid Petitioner has now resumed publication, we do not deem it fit to indulge more in the issue other than to state that responsible Governments are required to respect the freedom of the press at all times. Journalists are to be accommodated in reporting and there is no justification for allowing a sword of Damocles to hang over the press indefinitely.” [para. 151]

Conclusions

Based on the above the Court found that:

• Freedom of expression and the freedom to practice any profession online was protected by India’s Constitution
• Although the Government could suspend the Internet, the government had to prove necessity and impose a temporal limit, which it failed to do in this case. Thus, the government had to review its suspension orders and lift those that were not necessary or did not have a temporal limit.
• Restrictions under Section 144 of the Code of Criminal Procedure could not be used to suppress legitimate expression and are subject to judicial scrutiny. The Court thus ordered the State to review its restrictions.

Decision Direction

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

Although the Court did not go as far as to lift the restriction on internet and movement, its judgment still expanded freedom of expression by reiterating that internet access was integral to freedom of expression and could not be restricted indefinitely even in the name of national security. The Court thoroughly outlined the principles and tests to strike a balance between fundamental rights and national security. Just as importantly, the Court stressed that orders that impact fundamental rights such as freedom of expression cannot be passed arbitrarily and in secret, but must be available to the public and subject to judicial scrutiny.

The Internet Freedom Foundation (IFF) has listed a range of negative aspects of the ruling , namely that the “Court has allowed the State to get away with frustrating the fundamental right to judicial review by unjustifiably witholding orders,” those that have suffered losses under the shutdown have no recourse or remedy, and under specific circumstances, a complete prohibition of speech could be considered as “reasonable.” Of particular note, the Court rejected the argument that journalists’ freedom of the press had been curtailed. As IFF wrote, “[t]he direct and inevitable consequence of disabling telecom services and physically stopping journalists from entering certain areas is violation of press freedom and it cannot be characterized solely as a chilling effect.”

Global Perspective

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

Related international and/or regional laws.

• ICCPR, art. 4
• ECHR, art. 15.

National standards, law or jurisprudence

• India, Constitution of India (1949), art. 19.
• India, Code of Criminal Procedure, sec. 144
• India, Indian Telegraph Act of 1885, sec. 5.
• India, Ram Jethmalani & Ors. v. Union of India, (2011) 8 SCC 1
• India, Indian Express Newspapers (Bombay) Private Ltd. v. Union of India, (1985) 2 S.C.R. 287
• India, Odyssey Communications Ltd. v. Lokvidayan Sanghatana, 3 SCC 410 (1988)
• India, Modern Dental College & Research Centre v. State of Madhya Pradesh (2016), 7 SCC 353.
• India, Channing Arnold v. The Emperor, (1914) 16 Bom LR 544.

Other national standards, law or jurisprudence

• U.S., Dennis v. United States, 341 U.S. 494 (1951)
• U.S., Abrams v. United States, 250 U.S. 616 (1919)
• U.S., Brandenburg v. Ohio, 395 U.S. 444 (1969)
• U.S., Ex parte Vallandigham, 28 F. Cas. 874.

Case Significance

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision was given by a three-judge bench of the Indian Supreme Court. Therefore, it establishes a binding precedent on all Courts within its jurisdiction, unless overruled by a larger bench of the Supreme Court.

The decision was cited in:

Foundation for media professionals v. union territory of jammu and kashmir & anr..

• T. Ganesh v. Union of India
• Navalakha v. Union of India
• Manohar v. Union of India
• Ashlesh Biradar v. State of West Bengal
• Raju Prosad Sarma v. State of Assam
• Unwanted Witness-Uganda v. Attorney General
• Software Freedom Law Center, India v. State of Arunachal Pradesh & Ors
• A Lakshminarayanan v. Assistant General Manager HRM
• Software Freedom Law Center, India (SFLC.in) v. State of Jharkhand

Official Case Documents

Reports, analysis, and news articles:.

• The Guardian, India supreme court orders review of Kashmir internet shutdown https://www.theguardian.com/world/2020/jan/10/kashmir-blackout-indias-supreme-court-orders-delhi-to-review-internet-shutdown
• India’s Supreme Court Orders a Review of Internet Shutdown in Kashmir. But For Now, It Continues https://time.com/5762751/internet-kashmir-supreme-court/
• Sflc.in, SC judgment – Safeguards for shutdown, limited relief for Kashmir https://sflc.in/sc-judgment-safeguards-shutdown-limited-relief-kashmir
• TechCrunch, India’s top court rules indefinite internet shutdown in Kashmir unwarranted and amounts to abuse of power https://techcrunch.com/2020/01/10/internet-shutdown-supreme-court-india-kashmir/
• Media Nama, The devil’s in the (future) detail: The Supreme Court’s internet shutdown judgment https://time.com/5762751/internet-kashmir-supreme-court/
• Internet Freedom Foundation, SC's Kashmir communication shutdown judgement is just the beginning of a long uphill campaign https://internetfreedom.in/scs-judgement-on-kashmir-communication-is-just-the-beginning/
• Why SC order on Internet goes beyond J&K, opens window for challenges and judicial reviews https://indianexpress.com/article/explained/jammu-and-kashmir-internet-shutdown-curbs-supreme-court-6210725/
• SC order on internet lockdown in J&K makes right noises but leaves matters of relief to the future https://indianexpress.com/article/opinion/columns/jammu-and-kashmir-internet-shutdown-supreme-court-article-370-6210489/
• As 2G returns to Kashmir after 5 months, these are some strong arguments against internet shutdowns in the future https://www.businessinsider.in/india/news/as-2g-returns-to-kashmir-after-5-months-these-are-some-strong-arguments-against-internet-shutdowns-in-the-future/articleshow/73266751.cms

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Case Analysis: Right to Live with Dignity (Jeeja Ghosh v. Union of India)

Jeeja Ghosh & anr. v. Union of India & ors.

(2016) 7 SCC 761

Court: Hon’ble Supreme Court of India

Bench: Justice A.K. Sikri and Justice R.K. Agrawal

The present Public Interest Litigation, spearheaded by Jeeja Ghosh, who is herself a disabled person, with the support of the NGO ADAPT (Able Disable All People Together), bears testimony to the statement of Shapiro. Irony is that though the aforesaid remarks were made by Shapiro way back in the year 1993 and notwithstanding the fact that there have been significant movements in recognising the rights of differently abled persons, much is yet to be achieved. India also has come out with various legislations and schemes for the upliftment of such differently abled persons, but lacunae between the laws and reality still remains. Even though human rights activists have made their best efforts to create awareness that people with disabilities have also right to enjoy their life and spend the same not only with the sense of fulfilment but also to make them contribute to the growth of the society, yet the mind-set of large section of the people who claim themselves to be ‘able’ persons still needs to be changed regarding their attitude towards differently abled persons. It is this mind-set of the other class which is still preventing, in a great measure, differently abled persons from enjoying their human rights which are otherwise recognised in their favour.

Jeeja Ghosh was born with cerebral palsy, a condition caused by lack of oxygen to the brain either during pregnancy or at the time of delivery. Ghosh has been involved in the social sector for more than two decades. She believes in the right based approach and dignity of all human beings. She has been a part of the disabled people’s movement and is connected to other disability right activities across India.

The present case is in regard to certain events happened during a flight journey from Kolkata to Goa. The 2nd Petitioner purchased a return flight ticket for Ms. Jeeja Ghosh from the Respondent No. 3, Spice Jet Ltd. During the journey, Jeeja was approached by a crew member of the flight and was asked to see her boarding pass. The crew member basically feared that her disability might pose health risk during pregnancy or during the time of delivery. She was ordered to get off the plane, even after she informed the flight crew members that she needed to reach Goa for the conference and it was important.

She was de-boarded. After arguing with the airlines and their authorities. Later she discovered that the Captain had insisted that she be removed due to her disability and will be threat. After this incident, Ms. Jeeja went into shock and trauma because of the event. She had trouble sleeping and eating properly, as a result she was taken to a doctor where she was prescribed medication. Due to the above incidents she was unable to fly to Goa on 20th February and thus missed the conference all together. It did humiliate and traumatize her but also to the organizers and to all the attendee of the opportunity to hear her and her experiences and her analysis of Indo- German under review.

Petitioner No. 1 grudges that even after 4 years of this incident whenever she has a flashback, she feels haunted with that particular scene where she was pulled out of the plane like a criminal. She still have nightmares and traumas because of the incident.

The Respondent in regard to the incident has sent an apology letter to Jeeja for trivializing the incident by just mentioning that ‘inconvenience caused’ was ‘in advent’. Before approaching the court, the Petitioner has also submitted the complaint to the Chief Commissioner for Persons with Disabilities and to the Ministry of Social Justice.

The Petitioner has filed a Writ Petition under Article 32 of the Constitution of India. She claimed in her Petition that airlines crew members’ behaviour was outrageous as it is both illegal and discriminatory. She also claimed that third Respondent’s staff clearly violated Civil Aviation Requirements 2008 with regard to ‘Carriage by Air of Persons with Disability and/or Persons with Reduced Mobility’ issued by the Respondent No.2  Directorate General of Civil Aviation as authorized by Rule 133A of the Aircraft Rules, 1937.

1.      Whether there was a violation of Article 21 of the Constitution of India?

2.      Whether the Respondent is liable under the provisions of CAR, 2008 and the PWD Act, 1995?

Petitioners:

1. It was stated that there is clear violation of Fundamental Rights of the petitioner. There is a violation of Article 21 of the Constitution of India which provides for Right to Life and Personal Liberty and also Articles 19 (1) (d) and 19 (1) (g) which provides to move freely throughout the territory of India and to practice any profession, or to carry on any occupation, trade or business.

2.  The Petitioners refused the contentions stating there was procedural negligence on the part of Ms. Ghosh.

3.  Spice Jet Airlines’ denial of carrying her was in violation of the provisions of CAR 2008 and the PWD Act and UNCRPD.

4. The Court should order the Spice Jet authorities, their men, agents and persons acting on their behalf to adequately compensate the Petitioners for lost money, wasted time, and the humiliation and trauma suffered during the above mentioned incident.

5.  It is humbly stated that it is the obligation of the government to see that rights of persons with disabilities are being taken care of and promote equality otherwise arbitrary practices against them is a violation of Fundamental Rights mentioned under Articles 14, 19 and 21 of the Constitution of India.

6. It was also stated that the all airlines shall incorporate appropriate provisions in the online form for booking tickets so that all the required facilities are made available to the passengers with disabilities at the time of check-in.

Respondent:

1.      Respondent No. 2 DGCA stated, It was rather unusual, that a Governmental body itself came out in support of the present petition, so far it helps in implementation of the guidelines prescribed.

2.      Respondent No. 3 Spice Jet claimed, it was Ms. Jeeja Ghosh who failed to disclose her disability at the time of booking of her flight ticket and at the time of check-in and the Respondent could not risk taking the Appellant for a 5 hour journey.

3.      Spice Jet Airlines also stated, medical clearance was required and as per the medical literacy, cerebral palsy affects body movement, muscle control, muscle coordination, muscle tone, reflex, posture and balance. It can also impact fine motor skills, gross motor skills and oral motor functioning. Therefore, Jeeja Ghosh could have faced grave consequences during the long air journey which would have been a serious issue.

JUDGMENT AND REASONS FOR JUDGMENT

After considering the respective arguments of the counsel for both the parties and going through the relevant provisions and CAR, 2008 we arrive at the conclusion that Jeeja Ghosh was not given appropriate, fair and reasonable treatment which she was required by due sensitivity and the decision to de-board her in the given circumstances was an example of total lack of sensitivity.

Jeeja Ghosh is a disabled person who suffers from cerebral palsy. Her condition was not such which required any assistive devices or aids. She had demanded assistance regarding her baggage at the time of security check-in, from the check-in counter. She boarded the flight without anyone’s help. This was noticed not only by the persons at the check-in counter but also by security personnel who frisked her and the attendant who assisted her in carrying her baggage up to the aircraft. Even if we assume that there was some blood or froth that was noticed to be oozing out from the sides of her mouth when she was seated in the aircraft (though vehemently denied by her), nobody even cared to interact with her and asked her the reason for the same. No doctor was summoned to examine her condition. Abruptly and without any justification, the decision was taken to de-board her without ascertaining as to whether her condition was such which prevented her from flying. This clearly amounts to violation of Rule 133-A of Aircraft Rules, 1937 and the CAR, 2008 guidelines. However, now we should take it as a human rights considering various international laws.  It is said that “Non-disabled Americans do not understand disabled ones.” The only error in the aforesaid sentence is that it is attributed to Americans only whereas the harsh reality is that this statement has universal application. The sentence should have read: “Non-disabled people do not understand disabled ones.”

It is the common experience of several persons with disabilities that they are unable to lead a full life due to societal barriers and discrimination faced by them in employment, access to public spaces, transportation etc. Persons with disability are most neglected not only in the society but also in the family. More often they are an object of pity. There are hardly any meaningful attempts to assimilate them in the mainstream. The indifference towards their problems is so pervasive that even the number of disabled persons existing in the country is not well documented.

It is also stated by the Hon’ble Court that these people don’t need sympathy but only want to be trusted. People don’t understand this fact that disabled persons also have some rights. Such people don’t want to be dependent on others. Non-disabled person always under- estimate the capabilities of the disabled person but these people want to be self-reliant. The Hon’ble Court also stated in the judgment that the Ms. Jeeja Ghosh is one of the examples of the spirit, courage of such disabled person. She has achieved so much in her life and has overcome her disabilities. Irrespective of her disabilities, she has become a responsible citizen of this country. A little care and sensitivity on the part of the airlines would not have resulted into such a pain, suffering and trauma that Ms. Ghosh has undergone.

The Hon’ble Court concluded the Judgment by saying to most of the disabled person, the society has closed the doors and the key to such doors has been thrown by non-disabled persons. Still some non-disabled person knock these doors or try to open these doors. Helen Keller has described this phenomena in the following words: “Some people see a closed door and turn away. Others see a closed door, try the knob and if it doesn’t open, they turn away. Still others see a closed door, try the knob and if it doesn’t work, they find a key and if the key doesn’t fit, they turn way. A rare few see a closed door, try the knob, if it doesn’t open and they find a key and if it doesn’t fit, they make one!” These rare persons we have to find out.

The Hon’ble Court found that the Respondent No. 3 acted in an insensitive manner and in the process violated the Aircraft rules of 1937 and CAR, 2008 which was also experienced by Ms. Ghosh. It was an unreasonable discrimination against her. The Hon’ble Supreme Court awarded Rs.10, 00, 000 as damages which were supposed to be paid by Respondent No. 3 within a period of 2 month from the date of judgment.

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Top Five Cases related to Religious Freedom in India

by Lija Merin John

India's judiciary has played a significant role in upholding religious freedom in the country. The Supreme Court of India has time and again emphasised the importance of religious freedom and upheld the right of every individual to follow their religious beliefs. The judiciary has intervened in cases where the religious freedom of individuals has been violated by the state or any other entity. The judiciary has also interpreted the provisions of the Constitution to provide greater protection to the right to religious freedom. 

Despite the constitutional and judicial safeguards, religious freedom continues to be increasingly threatened in India. Protecting religious freedom is particularly crucial for the protection of the rights of minority communities in India, as they often face discrimination and persecution.  

Here are five cases in which the courts upheld the individual’s freedom of religion and belief, reinforcing our belief in India being a secular, democratic state. These cases deal with five fundamental aspects of freedom of religion as a community or an individual. Each case represents a significant legal battle fought in the courts of India, highlighting the complexities and challenges of protecting the right to religious freedom in the country. 

1. Bijoe Emmanuel v. State of Kerala, 1987 AIR 748  

Bijoe Emmanuel v. State of Kerala is a landmark case in Indian constitutional law that deals with the issue of freedom of religion and expression. The case involves three students who refused to sing the national anthem of India on religious grounds. 

The incident took place in 1985 when the students, who were studying in a government school in Kerala, remained silent when the national anthem was being played in their school. This led to disciplinary action against them, including expulsion from the school. The students and their parents argued that their religion prohibited them from singing the national anthem and that their right to freedom of religion and expression was being violated.  

The key issues in this case were whether the expulsion of the children was valid under the Prevention of Insults to National Honour Act 1971 and the Kerala Education Act and Rules, and whether it impinged on the children's fundamental rights protected under Article 19(1) and Article 25 of the Constitution of India. The High Court dismissed the petition based on the Kerala Education Act and two circulars which demanded strict compliance with respect to the code of conduct for teachers and students. The case eventually reached the Supreme Court of India. 

The Supreme Court held that the action of the school authorities in expelling the three students was arbitrary and violative of the Fundamental Right to Freedom of Conscience and Religion. The Court observed that the students' right to Freedom of Conscience and Religion extends to not only the holding of their beliefs but also to the act of expressing or practising their beliefs. 

The Court also noted that the action of the school authorities was not based on any reasonable or justifiable ground. The Court stated that the right to freedom of conscience and religion is a vital part of the Fundamental Right to life and personal liberty guaranteed by the Indian Constitution. 

The Court held that the school authorities had failed to discharge their duty to protect the students' fundamental rights. The Court observed that the school authorities had a responsibility to protect the students' right to freedom of conscience and religion, and that the authorities could not simply invoke the school rules to violate the students' fundamental rights. It was held that there is no provision of law which obliges anyone to sing National Anthem. The two circulars which demanded strict compliance with respect to the code of conduct for teachers and students were mere departmental instructions. The circulars contravene Article 19(1) (a) and 25 (1). The rights under Article 19(1)(a) can only be restricted by a law having statutory force and not a mere executive or departmental instructions as the circulars.  

The Court further held that the school authorities' action violated the Right to Education guaranteed under Article 21A of the Constitution, which provides for the right to free and compulsory education for children between the ages of six and fourteen years. 

The children did not sing the National Anthem due to their religious beliefs. The Supreme Court held that Article 19(1)(a) and Article 25 (Freedom of Religion and Conscience) cannot be infringed on the grounds of disrespect shown to the National Anthem. The compulsion on every student to sing the National Anthem despite their religious beliefs and free will violates Article 19(1)(a) and Article 25 of the Constitution of India. 

“Article 25 is an article of faith in the Constitution., incorporated in recognition of the principle that the real test of democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution. This has to be borne in mind in interpreting Article 25”.  

The conduct of the children to stand up when the national anthem was sung proves that the three students were not guilty of disrespect to the National Anthem just because they refused to sing it. The Court further emphasized that our traditions taught us tolerance, our philosophy preaches tolerance, our Constitution practices tolerance and hence we should not dilute it. 

Overall, the Supreme Court's judgment in Bijoe Emmanuel v. State of Kerala reaffirmed the importance of the Right to Freedom of Conscience and Religion as a Fundamental Right protected under the Indian Constitution. The judgment also emphasised the duty of public authorities, including schools, to respect and protect this right, and to act on reasonable and justifiable grounds when regulating the exercise of this right. 

2. The Ahmedabad St. Xaviers College vs State of Gujarat, (1974) AIR (SC) 1389  

In this case, St. Xavier's College challenged state legislation encroaching upon the right of minority educational institutions to autonomy. The crux of the matter was the autonomy of educational institutions and the limits of governmental interference, especially in the matters of appointment and dismissal of teachers as well as admission of students of the minority community. The petitioners challenged sections of the Gujarat University Act, 1972, which required: 

University nominees in the governing and selection bodies of all colleges 

Conversion of all affiliated colleges to constituent colleges,  

Approval of Vice Chancellor for disciplinary action against members of teaching staff, and  

Arbitration of dispute between the staff and management left to the Vice Chancellor  

After both sides had made their arguments, the Supreme Court rightly pointed out,  

“The whole object of conferring the right on the minorities under Article 30 (right of minorities to establish and administer educational institutions) is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection, they will be denied equality.”   

The Court held that object behind the enactment of Articles 25 to 30 was the securing and preserving the rights of the religious and linguistic minorities. The Court further held that as long as the Constitution stands in place as it is today, then there could be countenance as to the tampering of those rights. And any act doing so, would tantamount to breach of faith and would be liable to be struck down by the Courts. 

3. Shafin Jahan v. Ashokan K.M. & Ors. (2018 SCC OnLine SC 201)  

This case concerned the marriage of Hadiya Jahan, a 24-year-old medical student who converted to Islam and married Shafin Jahan. Hadiya's father, K.M. Ashokan, filed a writ of habeas corpus before the High Court of Kerala, alleging forceful conversion. The High Court annulled the marriage, claiming that Hadiya was vulnerable and capable of being exploited, and exercised the parens patriae jurisdiction to ensure her welfare. The Supreme Court held that the High Court erred in annulling the marriage as it was beyond the scope of the writ of habeas corpus . The Supreme Court also held that the parens patriae jurisdiction must be exercised only for the benefit of the person in need of protection and not for the benefit of others. The right to marry a person of one's choice is integral to Article 21 (Protection of Life and Personal Liberty), and the Constitution recognises personal autonomy and liberty.  

“Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution.”  

4. Shayara Bano v. Union of India (Triple Talaq case) (AIR 2017 SCC 1388)  

Shayara Bano v. Union of India was a landmark case heard by the Supreme Court of India in 2017. The case dealt with the practice of "triple talaq," a form of instant divorce prevalent in the Muslim community in India, where a husband could divorce his wife by saying the word "talaq" three times. 

Shayara Bano, a Muslim woman from Uttarakhand, challenged the Constitutionality of triple talaq and claimed that it violated her fundamental rights as a citizen. She argued that the practice was discriminatory and arbitrary and violated the principles of gender justice and equality enshrined in the Indian Constitution. 

The case was heard by a five-judge bench of the Supreme Court, which included Chief Justice JS Khehar and Justices Kurian Joseph, Rohinton F. Nariman, Uday U. Lalit, and Abdul Nazeer. The Union of India and women’s rights organisations such as Bebaak Collective and Bhartiya Muslim Mahila Andolan (BMMA), supported the petitioner’s claim that these practises are unconstitutional. However, the AIMPLB argued that uncodified Muslim personal law is not subject to constitutional judicial review, and that these are essential Islamic practises protected by Article 25 of the Constitution.  

The bench delivered a historic verdict, striking down the practice of triple talaq and declaring it unconstitutional and illegal. Commenting that “what is bad in theology cannot be good in law”, the Supreme Court declared the practice of instant ‘triple talaq’ unconstitutional, holding that it was arbitrary and not an essential part of Islamic law. The Court added that since triple talaq was banned in most Islamic countries, it cannot be ascertained as an essential practice. The Court also observed that personal laws must be subject to the test of constitutional validity and gender justice, and Article 25(2) says that if any religious practice violates the fundamental rights, then it can be struck down by the Supreme Court. It held that the practice of Triple Talaq was derogatory and was a violation of Article 14 (Right to Equality). 

However, the dissenting opinion of the judgement it was held that, 

“Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (and even rationalists, practicing the same faith) unacceptable, in today’s world and age. The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endevours to protect and preserve, the beliefs of each of the separate entities, under Article 25.”  

In view of different opinions recorded, by a majority of 3:2, the prace of Talaq-e-biddat (Triple Talaq) was set aside. The judgment was widely celebrated as a victory for women's rights and gender justice in India. It was also seen as a step towards a more progressive and inclusive society, where citizens of all religions are equal before the law. 

5. Rev. Stainislaus v. State of Madhya Pradesh, (1977) 1 S.C.C. 677  

The case of Rev. Stainislaus v. State of Madhya Pradesh began with the arrest of Reverend Stainislaus, a Roman Catholic priest, in the state of Madhya Pradesh, India. He was accused of violating the provisions of the Madhya Pradesh Dharma Swatantrya Adhiniyam (Freedom of Religion Act), 1968, which prohibited forced religious conversions. 

Reverend Stainislaus challenged the Constitutionality of the Act in the Madhya Pradesh High Court, which rejected his petition. He then appealed to the Supreme Court of India, arguing that the Act violated his Fundamental Right to freedom of religion under Article 25 of the Indian Constitution. 

The case was heard by a bench comprising Chief Justice A.N. Ray, Justice M.H. Beg, Justice P.N. Bhagwati, Justice Y.V. Chandrachud, and Justice S.M. Fazal Ali. The Court ultimately ruled in favour of Rev. Stainislaus, stating that the state law was unconstitutional because it violated the Fundamental Right to freedom of religion enshrined in the Indian Constitution. 

In the judgment of Rev. Stainislaus v. State of Madhya Pradesh, the Supreme Court of India made several important observations regarding religious freedom. 

The Court affirmed that the right to propagate one's religion is a fundamental right under Article 25 of the Indian Constitution, which guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality, and health. 

One of the key aspects of the judgment that has been used to support the enactment of anti-conversion laws is the distinction made between "propagation" and "conversion". The Court ruled that while every individual has the right to freely profess, practice, and propagate their religion, the freedom to convert others to one's own religion is not an absolute right. The Court observed that the freedom to propagate religion does not include the right to convert another person to one's own religion by force, fraud, or allurement. This distinction between propagation and conversion has been used by some to argue that anti-conversion laws are necessary to prevent forced and fraudulent conversions. This interpretation has been used to argue that anti-conversion laws are necessary to protect vulnerable individuals from being coerced into converting to a different religion. 

This case has been instrumental in shaping the legal landscape of India, especially regarding anti-conversion laws. Since this case, several states in India have passed laws regulating or prohibiting religious conversion, often citing concerns of forced conversion. However, many of these laws have faced legal challenges on the grounds that they infringe on the Fundamental Right to Freedom of Religion, Freedom of Speech and Expression, Right to Privacy, Right to Equality and Right to Life and Liberty.  

It's worth noting that the provisions of the Madhya Pradesh Dharma Swatantrya Adhiniyam (Freedom of Religion Act), 1968, which was challenged in the instant case, are not pari materia to the current law, enacted in Madhya Pradesh in 2021. Hence, considering this judgement as a precedent to uphold anti-conversion laws as they stand today would be questionable at best. In fact, the Court, in the judgement, emphasised that any law that restricts the freedom of religion must be carefully scrutinised and tested against the Constitutional standards of reasonableness, necessity, and proportionality. 

In summary, Rev. Stainislaus v. State of Madhya Pradesh was an important case that affirmed the right to freedom of religion and the right to propagate one's religion as a fundamental right under the Indian Constitution. The case has also had a significant impact on the legal landscape of India, especially with regard to anti-conversion laws. 

Adv. Lija Merin John is a practicing advocate in the courts of Delhi in matters pertaining to religious liberty and currently, working as a legal consultant in ADF India. She has completed her B.A., LL.B. from Bangalore Institute of Legal Studies and further pursued her LL.M. in Constitutional Law and Legal Order from University Law College and Department of Studies in Law, Bangalore University. She completed her dissertation on the topic, The Anti-Conversion Laws and Secularism in India: A study with special reference to Madhya Pradesh Freedom of Religion Act, 2021.

Home > Cases > Enforcement of Fundamental Duties

Enforcement of Fundamental Duties

Durga Dutt v Union of India

Petition seeking the enforceability of Fundamental Duties.

Sanjiv Khanna J

P.V. Sanjay Kumar J

R. Mahadevan J

Petitioner: Durga Dutt

Lawyers: Karunakar Mahalik

Respondent: Union of India

Case Details

Case Number: W.P.(C) No. 000067/2022

Next Hearing: March 7, 2024

Last Updated: September 11, 2024

TAGS: Fundamental Duties , Fundamental Rights

Case Description

On February 21st 2022, the Supreme Court issued a notice to the Union Government in a writ petition filed by Advocate Durga Dutt seeking the enforcement of Fundamental Duties . The petition stressed the need to strike a balance between civil rights and civil obligations.

Fundamental Duties, enshrined in Part IV-A of the Constitution of India, 1950, are a list of 11 unenforceable duties that citizens are obligated to perform for the State. Examples of Fundamental Duties include the protection of the sovereignty and integrity of India, the promotion of harmony and brotherhood, and to safeguard public property. 

Mr. Das requested the Court to direct the Union to provide incentives to citizens to adhere to Fundamental Duties, and to set up an Independent High-Powered Committee to scrutinise and review the legal framework on Fundamental Duties. A Bench comprising Justices Sanjay Kishan Kaul , and M.M. Sundresh sought the response of the Centre and States in creating a comprehensive set of rules, or a uniform policy, that would ensure citizens’ adherence to Fundamental Duties.

The petition pointed out that while Fundamental Rights are conferred on citizens, the Fundamental Duties chapter of the Constitution requires citizens to follow certain basic norms of democratic conduct. Highlighting that Fundamental Rights and Duties are co-extensive, the petition said that in certain instances, the violation of Fundamental Duties led to the violation of Fundamental Rights. An example of this is when protestors block roads, violating their Fundamental Duty to the nation while obstructing the Fundamental Rights of others. Similar non-adherence to Fundamental Duties by citizens may affect other citizens’ Fundamental Rights to equality, free speech, and life and liberty, respectively held under Articles 14 , 19 , and 21 of the Constitution of India, 1950 . 

In a previous decision in 2003, the Supreme Court directed the Centre to implement the recommendations of the Justice J.S. Verma Committee , which was set up to suggest ways in which Fundamental Duties may be taught in schools. The Committee, constituted by the Union Government in 1999 in response to a notice issued by the Supreme Court in 1998, recommended that awareness about Fundamental Duties must be created in educational institutions. The present petition, which relies on the Supreme Court’s 2003 decision, requests the Court to direct the Centre to implement it.  

In 2017, the Supreme Court refused to hear a PIL filed by Ashwini Kumar Upadhyay, Bharatiya Janata Party spokesperson and lawyer, asking the Court to direct the Centre to implement the findings of the J.S. Verma Committee.

While the chapter on Fundamental Duties was introduced in the Constitution in 1976, the question of their enforceability has begun to crop up more frequently in recent times. 

Documents (2)

Written Note: Attorney General R. Venkataramani

September 11, 2024

Order issuing Notice to Union

February 21, 2022

Reports (1)

Enforcement of Fundamental Duties | Day 1: A comprehensive law enforcing fundamental duties is the “need of the hour,” argue petitioners