ISSN: 2582 9807

CALJ (2022) VOLUME VI ISSUE II|MAY, 2022

COMPARATIVE CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW JOURNAL

EDITORIAL

HORIZONTAL RESERVATION FOR TRANSGENDER PERSONS: RESOLVING THE

NALSA CONUNDRUM......................................................Prakhar Raghuvanshi & Sandhya Swaminathan

ARTICLES

ASSESSING STATE SCHOOL EDUCATION LAWS ON ADMINISTRATIVE

SAFEGUARDS...............................................................................................Jayana Bedi & Prashant Narang

-CONVERSION LAWS..................................................Manish

OPPOSITION...............................................................................Meenakshi Ramkumar & Aishwarya Singh

POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT: STUDYING ABUSE OF

POWER BY THE CHAIR AND HOW IT CAN BE ADDRESSED.....................................Anmol Jain

WITH THE REPRESENTATION OF MARGINALISED MUSLIMS..........Mustafa R. & Tejas B. N.

CENTRE FOR COMPARATIVE CONSTITUTIONAL LAW AND

ADMINISTRATIVE LAW
NATIONAL LAW UNIVERSITY, JODHPUR (Rajasthan, India)
 PUBLISHED BY:

THE REGISTRAR, NATIONAL LAW UNIVERSITY, JODHPUR

ISSN: 2582 9807
 BOARD OF EDITORS
CHIEF PATRON
Prof. (Dr.) Poonam Saxena
Vice Chancellor, National Law University Jodhpur

DIRECTOR, CENTRE FOR COMPARATIVE

CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW
Prof. (Dr.) I.P. Massey
Dean, Faculty of Law, National Law University Jodhpur

FACULTY ADVISORS
Asst. Prof. Sayantani Bagchi & Asst. Prof. Vini Singh

Editors-in-Chief
Prakhar Raghuvanshi & Sandhya Swaminathan
Managing Editor Executive Editor
Ayush Mehta Piyush Sharma
Deputy Managing Editor Deputy Executive Editor
Falguni Sharma Garima Chauhan
Senior Content Editors
Aditya M. Karunakar Kirti Harit Palak Jhalani
Associate Editors
Akshay T Atharva C. Ayush Mangal
Himanshi Y. Rachana R. Revati Sohoni
Siri Harish Vishnu M.
Copy Editors
Akshat Anjali Sunil Krishangee P.
Sinchan C. Siddhant R. Sonsie Khatri
Sourabh M. Sri Janani S.
 BOARD OF ADVISORS
JUSTICE (RETD.) M.N. RAO VENKATACHALIAH

25th Chief Justice of India

JUDGE (DR.) GEORG NOLTE

Judge, International Court of Justice, The Hague

&
Professor, Public International Law, Humboldt University

DR. RAJEEV DHAVAN

Senior Advocate, Supreme Court of India

DR. MENAKA GURUSWAMY

Senior Advocate, Supreme Court of India

PROF. (DR.) SUSAN ROSE-ACKERMAN

Henry R. Luce Professor Emeritus of Law & Political Science, Yale University

PROF. (DR.) TIMOTHY ENDICOTT

Professor, Legal Philosophy, Faculty of Law, University of Oxford

 CALJ 6(2)

CONTENTS

Editorial

HORIZONTAL RESERVATION FOR TRANSGENDER PERSONS:

RESOLVING THE NALSA CONUNDRUM ................................................ v

Articles

ASSESSING STATE SCHOOL EDUCATION LAWS ON

ADMINISTRATIVE SAFEGUARDS ............................................................... 1

-CONVERSION LAWS.............. 32

RIGHTS OF THE OPPOSITION.................................................................... 55

POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:

STUDYING ABUSE OF POWER BY THE CHAIR AND HOW IT CAN
BE ADDRESSED ................................................................................................. 87

ANALYSING THE INVISIBLE: THE CONSTITUENT ASSEMBLY

MARGINALISED MUSLIMS ......................................................................... 124

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 CALJ 6(2)

EDITORIAL: HORIZONTAL RESERVATION FOR

TRANSGENDER PERSONS: RESOLVING THE NALSA
CONUNDRUM
Prakhar Raghuvanshi1 & Sandhya Swaminathan2

INTRODUCTION

Sustaining any society is a constant struggle. One of the most fundamental

pillars to sustain a society is social justice. While political and economic
justice affect the population significantly, social justice is the axis around
which the other two revolve. It is perhaps due to this cardinal role that
social justice plays that Dr. Ambedkar believed that social reform must be
given preference over political reform.3 Among various socio-political
issues, including religious chauvinism, linguistic divide, casteism and
majoritarian impulses, India faces specific problems in dealing with sexual
minorities, particularly transgender persons.4 It is imperative for India to
account for this gross injustice.

* Cite it as: Raghuvanshi & Swaminathan, Editorial, Horizontal Reservation for Transgender
Persons: Resolving the NALSA Conundrum, 6(2) COMP. CONST. L. & ADMIN. L. J. v (2022).
1 Prakhar Raghuvanshi is a fourth-year student pursuing B.A. LL.B. (Constitutional Law

Hons.) at National Law University Jodhpur and is the Editor-in-Chief of the Comparative
Constitutional Law and Administrative Law Journal (ISSN: 2582-9807). The author may
be reached at <[Link]@[Link]>.
2 Sandhya Swaminathan is a fifth-year student pursuing B.B.A. LL.B. (Business Law

Hons.) at National Law University Jodhpur and is the Editor-in-Chief of the Comparative
Constitutional Law and Administrative Law Journal (ISSN: 2582-9807). The author may
be reached at <[Link]@[Link]>.
** We thank the editors of CALJ Falguni Sharma, Himanshi Yadav, Rachana
Rammohan and Revati Sohoni for their inputs and editorial assistance.
*** We also acknowledge the rich database hosted by the Centre for Law and Policy
Research, Bangalore that helped our research during the course of writing this paper. The
database can be accessed at <[Link]>.
3 See DR. BR AMBEDKAR, ANNIHILATION OF CASTE (Navayana 2015).
4 See Appendix-5: Approach Paper on Education and Employment opportunities & Challenges for

Transgender, in REPORT OF THE EXPERT COMMITTEE ON THE ISSUES RELATING TO

TRANSGENDER PERSONS 168 (2013), [Link]
ent/2016/Expert_Committee_Report_(2014)_1.pdf. The state government of Tamil
Nadu, accepted the recommendation of the Tamil Nadu Backward Classes Commission
to include transgender persons under t Most Backward Classes
far worse than Scheduled Castes
their social and educational backwardness. See Governor of Tamil Nadu, Backward

v
 EDITORIAL

In 2012, members of the transgender community approached the Supreme

SCI seeking a legal declaration of their gender identity
other than the one assigned to them at birth (within the gender binary). 5
The SCI, vide its judgment dated April 15, 2014, upheld the right of
transgender persons to decide their self-identified gender.6 The central and state
governments were directed to recognise transgender persons as male,
female or third gender.7 While the judgment of the Court broke away from
the binary gender theory, it was criticised inter alia third
8
gender and for being under-inclusive.9

Among other directions made by the Court, a crucial one is in paragraph

135.3 of the judgment directing central and state governments to treat
socially and educationally backward classes and
consequently, extend to them the benefit of reservation in educational
institutions as well as in public employment.10

In furtherance of this direction, the Karnataka state government,11 as well

as the central government,12 were in the process of including transgender

Classes, Most Backward Classes and Minorities Welfare (BCC) Department, GO (Ms)
No. 28 (Issued on Apr. 6, 2015), [Link]
/02/[Link]; National Legal Services Authority v. Union of India, (2014) 5
SCC 438 (hereinafter NALSA) ¶ 1.
5 NALSA, (2014) 5 SCC 438 ¶ 2.
6 Id. ¶ 81-83. The reasoning of the SCI was based on multiple facets of Part III of the

Constitution of India, beginning with the interpretation that the use of the gender-neutral
person end to transgender persons. Under
sex
Court is inclusive of psychological attributes over biological ones. Furthermore, diversity
in self-expression was highlighted through dignity i.e.,
leading a dignified life against mere animal existence. The Court also referred to
international law (Yogyakarta Principles).
7 Id. ¶ 135.2.
8 See Agarwal et al., Report on: Queering the Law: Making Indian Laws LGBT+ Inclusive, VIDHI

CENTRE FOR LEGAL POLICY (July 31, 2019), [Link]

content/uploads/2019/07/Queering-the-Law_Introduction.pdf.
9 See Dipika Jain, Shifting Subjects of State Legibility: Gender Minorities and the Law in India, 32(1)

BERKELEY J. GENDER L. & JUST., 39-72 (2017).

10 NALSA, (2014) 5 SCC 438 ¶ 135.3.
11 Sangama v. State of Karnataka, WP(C) No. 8511/2020.
12 Nidhi Sharma, Cabinet Note to Classify Transpeople as OBC to Enable Access to Reservations,

ECONOMIC TIMES (Sept. 25, 2021), [Link]

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 CALJ 6(2)

OBC
Ministry of Social Justice and Empowerment, in consultation with the
National Commission on Backward Classes, moved a cabinet note to
include transgender persons within the ambit of OBC.13 While this may be
seen as a welcome move in the right direction, this idea has two significant
impediments first, seeking the redressal of the issue of transgender
persons solely across caste lines; and second, the consequent disproportional
encroachment upon reserved seats of the OBCs.

Our aim for this editorial is to highlight the problem of treating transgender
persons as OBCs, in light of the intersectionality of their caste and gender
identities. Through the course of this paper, we discuss the concept of
vertical and horizontal reservations (Part I), highlight the need to recognise
the separate identities of transgender persons (Part II) and subsequently
provide for a broad framework of reservation for transgender persons
under which the desired outcome may be achieved (Part III).

VERTICAL AND HORIZONTAL RESERVATIONS

The Constitution of India envisages and makes room for the conferment
of special benefits and reservation for the socio-economic and educational
advancement of certain categories of persons by the State women and
children,14 socially and educationally backward persons,15 backward classes
of citizens which in the opinion of the State, is not adequately represented in the services
under the State 16 and persons falling under the SC/ST17 economically
weaker section 18 lists. However, some of these categories are treated
differently from others, in terms of the manner in which reservation is
granted, given we each own multiple identities (such as caste, gender,
economic status, historical backwardness, physical ability et cetera), and
these identities co-exist and factor into our resultant socio-economic

/cabinet-note-to-classify-transpeople-as-obcs-to-enable-access-to-reservations/articlesh
ow/[Link].
13 Id.
14 INDIA CONST. art. 15 cl. 3.
15 INDIA CONST. art. 15 cl. 4-5.
16 INDIA CONST. art. 16 cl. 4.
17 INDIA CONST. art. 15 cl. 4-5 & art. 16 cl. 4A.
18 INDIA CONST. art. 15 cl. 6.

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 EDITORIAL

position in society. In this light, reservation schemes are applied vertically

or horizontally.

The nature and scope of vertical and horizontal reservations were first
clarified by the SCI in Indra Sawhney v. Union of India.19 The Court stated that
SC ST
OBC categories fall under vertical reservations. On the other hand, it was
physically
handicapped cut across or interlock with vertical reservations. The Court
illustrated the same:20

persons; this would be a reservation relatable to clause (1) of Article 16. The
persons selected against this quota will be placed in the appropriate category; if he
belongs to SC category he will be placed in that quota by making necessary
adjustments; similarly, if he belongs to open competition (OC) category, he will be
placed in that category by making necessary adjustments.

As is clear from the illustration, the Court envisages scope to entitle

reservation to a person with a disability under their caste category as well
person with disability
means to achieve and recognise the intersectionality of various identities of
persons. Some horizontal reservation categories include women, veterans,
and sports persons, among others.

However, astray from this understanding of vertical and horizontal

reservation and in sheer disregard for the intersectional identities of a
transgender person, paragraph 135.3 of the NALSA judgment has led to
state and central governments clubbing all transgender persons as a single
backward class to
21
confer to them the benefit of reservation. This clubbing may be enabled
by silences in the directions of the court. For instance, while the
Uttarakhand High Court, in a writ petition, directed the state government
to provide reservations to transgender persons within six months, it did so

19 Indira Sawhney v. Union of India, 1992 Supp 3 SCC 217 (hereinafter Sawhney).
20 Id.
21 Supra, Introduction; infra, Beyond OBCs: Recognising Intersectionality.

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 CALJ 6(2)

without stating whether the nature of this reservation would be horizontal

or vertical.22

BEYOND OBCS: RECOGNISING INTERSECTIONALITY

mutually constitutive relations among social

23
identities Intersectionality has particularly influenced and contributed to
feminist theories.24 Intersectionality highlights multiple levels of
discrimination or oppression due to the interconnection between multiple
social identities. Lynn, for example, highlights it from the perspective of
black women suffering from triple oppression. 25 This includes
discrimination based on colour, gender and class.26

In the Indian context, caste and gender become the two primary forms of
discrimination.27 Members belonging to lower castes and sexual minorities
suffer discrimination and violence on a routine basis.28 While the works of
Shield and Lynn are based on feminist theory and intersectionality, the
essential link of gender with other social identities that form the base for
discrimination cannot be disregarded.

Furthermore, Imaan Semmalar has highlighted the intersectionality debate

vis-à-vis caste and the transgender community in India. 29 The transgender

22 Rano v. State of Uttarakhand, order dated 28.09.2018 ¶ 10. The judgment was
progressive on a few aspects as it also directed the state government to frame schemes for
their upliftment, provide medical aid and housing, constitute a transgender welfare board
and so on.
23 SA Shield, Gender: An Intersectionality Perspective, 59(5) SEX ROLES, 301, 301-311 (2008).

The term was originally coined by Kimberie Crenshaw while analysing the limitations of
US anti-discrimination law, see Kimberle Crenshaw, Mapping the Margins: Intersectionality,
Identity Politics, and Violence against Women of Color, 43(6) STAN. L. REV., 1241-99 (1991).
24 L. McCall, The Complexity of Intersectionality, 30 SIGNS, 1771 1800 (2005).
25 D Lynn, Socialist Feminism and Triple Oppression: Claudia Jones and African American Women

in American Communism, 8(2) J. STUDY OF RADICALISM, 1-20 (2014).

26 Id.
27 M Anne et al., Gender and Caste Intersectionality in the Indian Context, 6(95) CEJSH: HUM.

RESOURCE DEV., 31-48 (2013).

28 Id. See also Grace Banu, A Call to End Violence Against the Trans Community in India,

HINDUSTAN TIMES (Apr. 08, 2022), [Link]

[Link].
29 Gee Imaan Semmalar, Unpacking Solidarities of the Oppressed: Notes on Trans Struggles in India,

42 WOMEN S STUD. Q., 286 (2014).

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 EDITORIAL

community in India faces compound discrimination across social

identities.30 As a corollary to triple oppression, the transgender community
faces two-fold oppression (if not more).31 Semmalar illustrates this through
Dalit transgender persons who are subject to discrimination from upper
castes (first social identity) due to caste status as well as from Dalits because
of their gender (second social identity).32 Multiple sets of social identities,
including economic power structures and social location, add to this
discrimination.

It is in this background that the first impediment, i.e., clubbing transgender

persons solely with OBCs, is brought to light. The state of Tamil Nadu
added Transgender or Eunuch 33 to the list of Most Backward Classes
MBC 34 The order, inter alia, iterates the grounds for the grant of
reservation to transgender persons as provided by the Tamil Nadu
Backward Classes Commission. Of these, two grounds are of great
relevance to our discussion (i) that the situation of transgender persons
is far worse than SCs and that the same is likely to improve by their
inclusion under the category of MBCs (similar to OBCs); and (ii) that the
caste or community from which transgender persons emerge cannot be
fixed.35

Caste being a social identity determined at birth, it is amply clear that all
transgender persons do not belong to one specific caste. The
aforementioned order, despite recognising this, adopts a vertical system of
reservation that blends transgender persons under MBCs.

30 Id.
31 While it could be argued that transgender persons from the upper caste families may
not face similar forms of oppression, the possibility of discrimination based on power
structure, social location and other forms of marginalisation persist.
32 Id.
33 It is also important to menti eunuch
accepted by the trans community and is regarded as offensive due to historical oppression.
See, Gee Semmalar, Gender Outlawed: The Supreme Court judgment on third gender
and its implications, ROUNDTABLE INDIA (Apr. 18, 2014), [Link]
.in/because-we-have-a-voice-too-the-supreme-court-judgment-on-third-gender-and-its-
implications/.
34 Governor of Tamil Nadu, Backward Classes, Most Backward Classes and Minorities

Welfare (BCC) Department, GO (Ms) No. 28 (Issued on Apr. 6, 2015),

[Link]
35 Id.

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 CALJ 6(2)

Clubbing the entire transgender community with OBCs has multiple

disadvantages. First, transgender persons compete with cisgender persons
falling under the OBC category, despite the two having different social
identities that form the basis for affirmative action. Second, transgender
persons belonging to different castes (both upper and lower) are placed on
the same pedestal. Third, transgender persons belonging to SC/STs would
have to opt between SC/ST or OBC reservations. While the former might
be an obvious choice resulting in better benefits, it would be rooted in caste
identity and entirely disregard gender identity. Similarly, a transgender
person belonging to a caste that is already classified as OBC would also
avail the benefit based on caste identity only. Lastly, upper-caste
transgender persons would also avail the seats reserved for OBCs, which
would go against the entire scheme of reservation in India.

A few judgments from various High Courts support the proposition

regarding the horizontal reservation. The Madras High Court in Swapna v.
Government of Tamil Nadu,36 while discussing the circular granting reservation
to transgender persons under the MBC category (discussed above),
directed the government to grant post-based reservation to transgender
persons, i.e., at least one seat in each category. The Karnataka government
amended its recruitment rules to grant horizontal reservation to the extent
of one per cent during the pendency of the case of Sangama v. State of
Karnataka. Another case from the Madras High Court, Tharika-Banu v.
Health and Family Welfare Department,37 is relevant here. Tharika Banu applied
for a degree under the SC category. Her application was rejected as she
missed the fifty per cent qualifying score. The court considered her SC
background and the social stigma faced by her on account of her gender
identity to allow the petition. Justice Kirubakaran further stated that the
qualifying score of fifty per cent is for cisgender males and females and not
for transgender persons.38

FRAMEWORK FOR HORIZONTAL RESERVATION

The central question that needs to be tackled at this stage is how do we

ensure that transgender persons get adequate representation at all levels?

36 Swapna v. Government of Tamil Nadu, 2016 SCC OnLine Mad 15973.

37 Tharika-Banu v. Health and Family Welfare Department, 2018(2) CTC 683.
38 Id. ¶ 11-12.

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 EDITORIAL

The experience from various states portrays a clear disparity. The disparity
may range from horizontal/vertical questions to the extent of reservation
as well. It is therefore important to draw inspiration from other horizontal
categories.

A. MODEL STRUCTURE

The Persons with Disabilities (Equal Opportunities, Protection of Rights

and Full Participation) Act, 1995 accorded persons with disability a
reservation of three per cent in seats of public employment39 and
educational institutions.40 It further accorded them a reservation of at least
three per cent of seats in poverty alleviation schemes41 and provided
incentives for public and private sector employers to reserve five per cent
of seats in their favour.42 These seats were subsequently increased to four
per cent in public employment43 and five per cent in educational
institutions44 under The Rights of Persons with Disability Act, 2016.

The 2016 enactment widened the scope of reservation under special

schemes to reserve five per cent in allotment of agricultural land, poverty
alleviation schemes and allotment of land at a concessional rate.45 The
scheme for statutory reservation provided for persons with disabilities is
an example of how horizontal reservation is structured. 46 It is our opinion
that a similarly structured system is necessary for transgender persons.

39 Persons with Disabilities (Equal Opportunities, Protection of Rights and Full

Participation) Act, 1995, § 33, The Gazette of India, Extraordinary, pt. II sec. 1 (Jan. 1,
1996). The section further provided that among the three percent reserved seats, one
percent shall account for blindness/low vision, hearing impairment, locomotor disability
or cerebral palsy.
40 Id. § 39.
41 Id. § 40.
42 Id.
43 The Rights of Persons with Disability Act, 2016, § 34, The Gazette of India,

Extraordinary, pt. II § 3(ii) (Apr. 19, 2017) provides that among the four percent reserved
seats, one percent shall account for benchmark disabilities including blindness/low vision,
hearing impairment, locomotor disability or cerebral palsy, autism, acid-attack victims,
intellectual disability.
44 Id. § 34.
45 Id. § 37.
46 Justice Sunanda Bhandare Foundation v. Union of India, (2014) 14 SCC 383; Manish

Sharma v. Lt. Governor, 2019 SCC OnLine Del 9852.

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 CALJ 6(2)

B. MODE OF IMPLEMENTATION

As we have noted earlier, reservation schemes in different states vary.

While Karnataka has recently recognised a horizontal scheme of
reservation for transgender persons after the intervention of the court, 47
few other states, including Kerala and Tamil Nadu, opted for a vertical
scheme.48 A similar stand is visible at the central level.49 It is also pertinent
to note that several states have, to this date, failed to grant any form of
reservation (vertical or horizontal) to transgender persons.

The enactment of central legislation, or in this case, an amendment to the

existing Transgender Persons (Protection of Rights) Act, 2019 would weed
out the scope for differential interpretation of the reservation-related
directions laid down in NALSA by different states by providing for a single
uniform structure of the implementation of strictly horizontal reservations
for transgender persons. It would also provide for an appropriate extent of
reservation (For instance, one per cent as was in the state of Karnataka)
across categories after a careful analysis of relevant empirical data.

It must be noted here that the Report of the Standing Committee on Social
Justice and Empowerment (2016-2017) noted that in accordance with
NALSA, reservations for transgender persons must be granted. However,
the Transgender Persons (Protection of Rights) Bill, 2016 was silent on the
same.50 Such an enactment or amendment, as proposed, would also place
on all states a more severe mandate to grant reservations to transgender
persons, in line with the directions of the SCI.

47 Sangama v. State of Karnataka, WP(C) No. 8511/2020, order dated July 20, 2021;
Karnataka Civil Services (General Recruitment) (Amendment) Rules, 2020 No. DPAR
179 SRR 2020, [Link]
dpar%20179%20srr%202020%20dated%2006%2007%[Link].
48 Higher Education Department, Government of Kerala, G.O. (Ms) No.
153/2018/HEDN (issued on July 3, 2018), [Link]
[Link].
49 Sharma, supra note 12.
50 MINISTRY OF SOCIAL JUSTICE AND EMP GOV T OF IND., 43 REPORT OF THE

STANDING COMMITTEE ON SOCIAL JUSTICE AND EMPOWERMENT ON THE

TRANSGENDER PERSONS (PROTECTION OF RIGHTS) BILL, 101 (2016),
[Link]
Social_Justice_And_Empowerment_43.pdf.

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 EDITORIAL

C. IDENTIFICATION OF THE BENEFICIARY

Other appropriate amendments are also required to ensure that the right
to self-identification, as recognised by the SCI, is upheld.51 Under the
current framework, a transgender person will be issued a certificate of
identity after following the procedure.52 This provision has been criticised
widely.53

The relation of this aspect with horizontal quota may be manifested by

referring to the Madras High Court judgment in Nangai v. Superintendent of
Police.54 The petitioner was terminated on the ground that she was
appointed under the quota for women by suppressing her transgender
identity. The court held that compelling the petitioner to undergo a medical
examination in the absence of any law to that effect is violative of the right
to life under Article 21 and freedom of expression under Article 19(1)(a).55
The petitioner identified herself as a female, was born as a female and
perceived by society as a female, and therefore, was eligible for
appointment under the women quota.56

Similarly, in Sangeetha Hijra v. State of Bihar,57 the court stated that the
petitioner had the right to identify herself as a female in accordance with
the law laid down in NALSA and contest from a female unreserved seat.58

51 NALSA, (2014) 5 SCC 438 ¶ 135.

52 The Transgender Persons (Protection of Rights) Act, 2019, § 5 r/w § 6, The Gazette of
India, Extraordinary, pt. II § 2(ii) (Jan. 10, 2020).
53 See Justice MB Lokur, Transgender Rights and Wrongs, in SEX AND THE SUPREME COURT:

HOW THE LAW IS UPHOLDING THE DIGNITY OF THE INDIAN CITIZEN (ed. Saurabh
Kirpal, Hachette India 2020).
54 Nangai v. Superintendent of Police, 2014 SCC OnLine Mad 988. In a similar case,

Nangai-II v. Director General of Police, (2014) 7 MLJ 452, where Nangai-II was
compelled to resign as the medical check-up during her training declared her as
transsexual. The court again upheld the right to self-identity Nangai-II as female and
reinstated her.
55 Nangai v. Superintendent of Police, 2014 SCC OnLine Mad 988 ¶ 40.
56 Id. ¶ 37.
57 Sangeetha Hijra v. State of Bihar, 2017 SCC OnLine PAT 1040.
58 Id. ¶¶ 3, 6. The petition was eventually withdrawn, therefore a prima facie order to this

effect cannot be traced. However, the order stated that the court adjudicating the election
petition (if filed) shall take into account the law laid down under the NALSA judgment.

xiv
 CALJ 6(2)

Giving primacy to the right to self-identify gender, it is essential to amend

the requirement regarding the issuance of a certificate to safeguard the
benefits that transgender persons are to ultimately receive.59 Transgender
persons identifying as women must be entitled to secure the benefit of
reservation under either horizontal gender category women or
transgender. In consultation with persons from the transgender
community, necessary amendments must also be made to the existing
legislation to ensure wider inclusivity of persons under the umbrella term
transgender for any reservation accorded to some trans persons to the
exclusion of other is a far from desirable outcome to the proposed
structure.

D. PROPER AND CORRECT COURSE

Post the determination of a broad structure, it becomes imperative to lay

down a procedure for filling vacancies. The SCI has delved into this
question and provided a detailed answer:60

The proper and correct course is to first fill up the OC quota (50%) on the basis
of merit; then fill up each of the social reservation quotas i.e., SC, ST and BC;
the third step would be to find out how many candidates belonging to special
reservations have been selected on the above basis. If the quota fixed for horizontal
reservations is already satisfied-in case it is an overall horizontal reservation-no
further question arises. But if it is not so satisfied, the requisite number of special
reservation candidates shall have to be taken and adjusted/accommodated against
their respective social reservation categories by deleting the corresponding number
of candidates therefrom. (If, however, it is a case of compartmentalised horizontal
reservation, then the process of verification and adjustment/accommodation as
stated above should be applied separately to each of the vertical reservations. In

59It must be noted at this point that the primary reasoning of the Madras High Court was
grounded in the fact that the Supreme Court in NALSA did not envisage transgender
persons undergoing a female to male transition under third gender and consequently, there
exists a legal compulsion to bring such female transgender persons under the binary

applied for determining sex (i) physical characteristics found at birth; and (ii) recognition
of sex by society at large (¶ 27). Therefore, while the outcome of the judgment was
progressive, the underlying reasoning per se cannot be veiled from criticism.
60 Anil Kumar Gupta v. State of U.P, (1995) 5 SCC 173 ¶ 18.

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 EDITORIAL

such a case, the reservation of fifteen per cent in favour of special categories, overall,
may be satisfied or may not be satisfied).
(emphasis added)

The Gujarat High Court, in the recent case of Tamannaben Ashokbhai Desai
v. Shital Amrutlal Nishar,61 elaborated on the method for compartmentalised
horizontal reservation in a stepwise manner. This was approved by the
Supreme Court in Saurav Yadav v. State of Uttar Pradesh.62

The Court discussed a hypothetical case of one hundred seats with fifty-
one for the open category and thirty-three per cent horizontal reservation
for women. The first fifty-one seats will be filled up on merit, including
candidates from all categories. If there are seventeen women among these
fifty-one candidates, no further changes will be required. However, if there
are
male candidates will be replaced with two women candidates appearing
first in the merit list post fifty-one.

At this stage, the open category horizontal reservations are fulfilled. Next,
twelve reserved seats for SCs will be filled from the merit list, and it will
include male SC candidates who might have been deleted with adjusting
shortfall for women. If this list includes four women candidates, the list
will be finalised. However, if not, the last two SC male candidates will be
deleted, and two SC women candidates will be added from the merit list.
In case there are no SC women candidates, SC male candidates will be
added. If both are unavailable, the seats will be carried forward to the next
admissions/recruitment.

In essence, while calculating the number of candidates selected for applying

for horizontal reservation, the candidates already in the list on merit will
not be excluded.63 This principle stands true only for horizontal reservation
and not for vertical reservation.

61 Tamannaben Ashokbhai Desai v. Shital Amrutlal Nishar, 2020 SCC OnLine Guj 2592
¶ 69.
62 Saurav Yadav v. State of Uttar Pradesh, (2021) 4 SCC 542 ¶ 43.
63 Rajesh Kumar Daria v. Rajasthan Public Service Commission, (2007) 8 SCC 785 ¶¶ 7-

9.

xvi
 CALJ 6(2)

CONCLUSION

NALSA was a progressive judgment despite its shortcomings. Though it

fails to discuss the issue regarding reservation to be granted to trans
persons in an amply clear manner, it is a welcome step in the right direction
insofar as it recognises the plight of transgender persons in India and
mandates the provision of reservations in their favour. The nature of
reservations mandated whether horizontal or vertical being unclear has
been the cause for a varied interpretation and differential implementation
of reservation schemes across states. Analysing state measures in
furtherance of the NALSA directive, we have critiqued the infirmities that
exist with the treatment of transgender persons as OBCs, and argue that
any reservation granted to transgender persons should cut across categories
which are primarily based on caste lines in recognition of the intersectional
socio-economic deprivations they are be faced with.

As highlighted in Part III of this paper, a structure similar to that adopted

for granting reservation to persons with disabilities ought to be adopted
for transgender persons as well. This will require two broad changes (i)
enacting a central legislation or amendment of the Transgender Persons
(Protection of Rights) Act, 2019 to this effect; and (ii) strengthening the
self-identification process to weed out existing systemic bottlenecks and
increase inclusivity.

Additionally, the extent of reservation must be laid down in the central

legislation itself. While we do not propose a number or percentage of
reserved seats for transgender persons due to the lack of empirical data, we
believe that it is important that an extent of reservation based on empirical
evidence (to be reviewed and revised from time to time) be laid down in
the central legislation or amendment as proposed, to secure uniformity and
adequacy in the implementation of the proposed reservation scheme across
states. Furthermore, it is pivotal to ensure that this horizontal reservation
is compartmentalised, i.e., restricted in categories and not based on the
overall number of transgender persons qualifying in the process. The
procedure to prepare the list must be as discussed in Tamannaben Ashokbhai
Desai. It is imperative that any such enactment or amendment as proposed
must be passed after due deliberation and consultation with persons from
the transgender community, for they are the intended beneficiary and their
inclusion in this process is essential to achieve a desirable outcome.

xvii
 EDITORIAL

IN THIS ISSUE

The publication of every issue of the Comparative Constitutional and

CALJ
CCAL holistic learning
process for the dedicated student editors who work on it. The nature and
quality of work that goes into soliciting manuscripts, the painstaking
editorial process and finally, the compilation of manuscripts into a single
issue is deeply enriching and rewarding. Each successive issue presents us
with the opportunity to become more nuanced in the subject matter and
to hone our editorial and managerial skills.

The ever-evolving constitutional and administrative law domains put forth

hundreds of questions, answers to which demand academic excellence. The
authors, who write for us, with the aid of the editorial board, contribute to
this unending academic discussion on numerous aspects. As the Editors-
in-Chief of CALJ, it gives us immense pleasure to introduce Issue II of
Volume VI of our journal.

Jayana Bedi & Prashant Narang, in Assessing State School Education

Laws on Administrative Safeguards, analyse seventy state education
laws and sixty-one subordinate legislations governing kindergarten to 12th
grade education across sixteen states of India. The authors use four
fundamental parameters: (i) procedural safeguards; (ii) legislative guidance
on discretion granted to the executive; (iii) proportionality; and (iv) checks
on rule-making power to assess these laws. The authors argue that a
majority of these laws fail to provide adequate safeguards, which may have
the effect of hindering the establishment of new schools, and impinge on
the rights of children, school owners and employees. A prime example
could be The Madhya Pradesh Ashaskiya School Viniyaman Adhiniyam,
1975, which provides for an imprisonment clause in cases of violation of
provisions of the Act. The authors highlight certain features like the
inclusion of a provision for reasoned order, laying out a clear objective of
the law, avoiding excessive and arbitrary penalties, and limiting rule-making
power, among other suggestions, to improve the status quo.

In -Conversion Laws, Manish discusses

the constitutionality of legislations enacted to prohibit forcible religious
conversions in India in light of the newly developed privacy jurisprudence.

xviii
 CALJ 6(2)

The author discusses anti-conversion enactments pre-2000 and critiques

Stainislaus, which upheld the validity of
the anti-conversion legislation in question for its poorly-reasoned
propagate
religion, its vagueness and failure to engage with questions of morality or
freedom of speech. The author argues that anti-conversion enactments
post-2000 place an additional substantive burden on individuals in cases of
conversion and puts them under surveillance. Provisions in the newer set
of laws regarding prior notice for conversion, initiation of proceedings by
persons other than the convert, reconversion exception and rendering
marriage voidable in case of forced conversion are criticised for their
violation of fundamental rights, primarily on the basis of the right to
privacy. Taking note of the Himachal Pradesh High Court decision in
Evangelical Fellowship, it is argued that the change in privacy jurisprudence
would render these newer set of laws unconstitutional.

Aishwarya Singh & Meenakshi Ramkumar, in

Failure to Entrench Opposition Rights, discuss the importance of the

to extract accountability
government-in-waiting
the potential abuse of power by political majorities and the silencing of the
opposition, the authors argue that the dismal state of opposition in India
can be attributed to the absence of opposition rights, partisan functioning
of the presiding officer in the Parliament and deferential Supreme Court.
Drawing a comparison to opposition rights in South Africa, where the
framework is entrenched within the Constitution, the authors argue for the
entrenchment of a framework for opposition rights in India. They argue
that in the absence of such a framework, judicial review of the legislative
process might serve as an imperfect solution. However, the authors caution
that if the standards of such review are not clearly laid down within the
constitution, it will lead to different judicial interpretations.

Following the same theme of evaluating parliamentary processes in India,

Anmol Jain, in Political Process Failure in the Indian Parliament:
Studying Abuse of Power by the Chair and How it can be Addressed,
analyses the inherent flaws in the constitutional design of the chair of the
two houses of the Parliament. The author highlights instances of abuse of

xix
 EDITORIAL

power by the Chairperson and display of partisan bias in certain cases,

including wrongful certification bills as a money bill to evade the
requirement of the majority in the Rajya Sabha (as in the case of the Aadhar
Act) and denial of demand for division of votes by the opposition (as in
the case of the Farm Bills and the anti-cow slaughter legislation in
Karnataka). The author offers three solutions to this problem. First, the
resignation of the Chairperson from the affiliated political party, and as a
convention, the placing of a prohibition on political parties from pitching
candidates against the chair in the successive general election. Second,
referring the decision of the Chairperson to a select committee when a
significant number of members of the house demand the same. Third, as
an external check on the power, Jain suggests an expanded judicial review
of legislative processes that are fundamental to lawmaking.

In the final article of this issue, Analysing the Invisible: The Constituent

Marginalized Muslims, Mustafa Rajkotwala & Tejas B. Naik discuss the

plight and neglection of lower caste Muslims in India, tracing the same back

hierarchies within Muslims. In an effort to address the resultant socio-

economic marginalisation of Pasmanda Muslims, the authors draw upon the
existing discourse on relevant constitutional and statutory provisions,
committee reports and judicial precedents surrounding the
community. Highlighting the severe political under-representation and
othering
authors call for increased and proportional political reservation of Muslims
in constituencies with higher Muslim populations. The authors propose a
revision of the current scheme of reservation in a manner such that SC, ST
and OBC reservations are made religion-neutral to extend benefits to lower
caste Muslims, granting recognition to their social and educational
backwardness. They alternatively propose the introduction of Pasmanda
Muslim specific reservation schemes based on, as opposed to umbrella
reservations under a blanket Muslim quota, in a bid to secure their
educational, political and socio-economic upliftment.

CCAL ACTIVITIES

CCAL hosted a series of online guest lectures on a wide variety of topics

over the last five months, alongside our editorial process for CALJ. At the

xx
 CALJ 6(2)

outset, CCAL extends its heartiest gratitude to all the speakers for
accepting our invitation and taking out valuable time from their busy
schedules to deliver enriching lectures to our audience.

We started off with hosting a lecture by Mr. Vikram Raghavan on the topic,

discussed the context behind Granv

Constitution as a document of social revolution and the resultant popular
understanding of the Indian Constitution as bearing a transformative
character. Next, we were fortunate to be presented with the opportunity to
Why
Secularism?
differences in the concept of secularism as practised in Europe and India.
Dr. Chandhoke elaborated upon the various challenges posed to secularism
in light of the contemporary political climate in India. Subsequently, we
The Indian Constitution:
A Historical Problem
of the constitution- Norms
and Politics: Sir Benegal Narsing Rau in the Making of the Indian Constitution, 1935-
50
Constitution making process is in contrast to the idea proposed by
The Indian Constitution: Cornerstone of A Nation
(Oxford University Press 1966)
lecture.

Voices of Dissent
Prof. (Dr.) Romila Thapar. Discussing her essay-cum- Voices of
Dissent: An Essay
tradition of dissent that has existed within the cultures and religions of the
South Asian subcontinent. She elaborated upon the existence of various
sects that vehemently disagree with mainstream religious ideas within India
since the premodern era as a sign of dissent. Lastly, we hosted Prof. Cheryl
Towards a Global Constitutional Gene Pool
Saunders discussed the challenges for comparative constitutional law and
the impact of contemporary issues on the same. The lecture was based on
Towards a Global Constitutional Gene Pool
University Law Review Volume IV Issue III 2009).

xxi
 EDITORIAL

The endeavour of CCAL to encourage discourse on the subject matter of

constitutional and administrative law is furthered by the bi-annual
publication of CALJ, guest lecture events and the regular publication of
articles on topics of c Pith & Substance:
The CCAL Blog
a user-friendly interface for our readers. With an aim to further our
contribution to existing literature, we endeavour to undertake extensive
research projects in 2022-23.

ACKNOWLEDGMENTS

The onset and rapid decline of the third wave of the COVID-19 pandemic
Board
challenge to shift to offline working mid-editorial process after two years
of continued online functioning. The Board adapted to offline working
swiftly and turned this challenge into an opportunity to grow together as a
strong team.

With the support and guidance of our Patron, -Chancellor of

National Law University Jodhpur, Prof. (Dr.) Poonam Saxena, our
Director, Prof. (Dr.) IP Massey and Registrar Mrs. Vandhana Singhvi, we
have been able to ensure the timely and smooth roll-out of this issue and
successfully carry out activities of CCAL. The Board owes its success to
our faculty advisors Asst. Prof. Sayantani Bagchi and Asst. Prof. Vini
Singh, who closely mentored and supported us through every initiative.
Their inputs have been valuable at every stage of the editorial process and
for activities of CCAL.

We thank the members of the Board for their dedication and hard work,
without which timely publication of this issue would not have been
possible. Each member of our board is equipped with a skill unique to
them, and they work to the best of their ability to maintain and improve
the standards of our journal. As Editors-in-Chief, we acknowledge and
thank them for their meaningful contribution to the editorial process. Their
creative mindset and enthusiastic approach towards every initiative helped
us in improving the standards of our journal and CCAL. Members of the
Board Ayush Mehta, Falguni Sharma, Piyush Sharma, Garima Chauhan,
Kirti Harit, Karunakar, Aditya Maheshwari, Palak Jhalani, Ayush Mangal,
Akshay Tiwari, Rachana R. Rammohan, Himanshi Yadav, Revati Sohoni,

xxii
 CALJ 6(2)

Atharva Chandra, Vishnu M., Siri Harish, Akshat, Anjali Sunil, Krishangee
Parikh, Siddhant Rathod, Sinchan Chatterjee, Sonsie Khatri, Sourabh
Manhar and Sri Janani S. are all indispensable to our team.

We would like to take this opportunity to extend our gratitude to the IT

department of the University and Mr. Gyan Bissa for providing us with
adequate resources and maintaining our website. The Board also
acknowledges the crucial role played by the Students Section of the
University in processing every application and making the procedure
seamless.

On behalf of the Board, we would like to thank our authors for having
taken out the time to contribute to this issue. While the themes covered in
this issue hold extreme contemporary relevance, they also aid in analysing
systematic patterns ranging over decades. We appreciate the authors for
their patience and cooperation throughout the editorial process, making
the publication of this issue timely and seamless.

We sincerely hope that this issue adds to the literature on the themes
covered and proves to be an enriching source of information for our
readers. Should our readers have any queries, suggestions or feedback for
us, write to us at editorcalq@gmail[dot]com.

Prakhar Raghuvanshi & Sandhya Swaminathan

Editors-in-Chief

xxiii
 CALJ 6(2)

ASSESSING STATE SCHOOL EDUCATION LAWS ON

ADMINISTRATIVE SAFEGUARDS

JAYANA BEDI1 & PRASHANT NARANG2

This paper reviews the quality of all laws governing K-12 education across sixteen states.
The authors assess these laws on four parameters: (i) procedural safeguards (due process
and principles of natural justice) encoded in the law; (ii) guidance provided by the law for
the quasi-judicial functions of the executive; (iii) the proportionality of the provisions of
the law (based on its intended objective); and (iv) checks that the law places on the rule-
making powers of the executive. These parameters have been drawn based on a review of
international literature on administrative law. Laws that fare poorly on these
benchmarks can impinge heavily on the rights and liberties of individuals they govern. In
the case of the K-12 sector, the absence of such safeguards in the law may ultimately affect

We find that most state laws fare poorly on one or more of the parameters listed above.
There is no parameter on which all states perform well. While these laws continue to
expand the scope of discretionary powers granted to the executive, they fail to provide
procedural safeguards which could guide or limit the said discretion. Furthermore, some
laws have also introduced provisions that are excessive or arbitrary in nature.

Wide discretionary powers often run the risk of abuse in the form of rent-seeking and
corruption. Past analyses show the numerous ways in which the departments of school
education commit excesses while exercising their discretionary powers. Given that the
executive draws its powers from the legislations studied, it is imperative that laws encode
the safeguards highlighted in this paper.

* Cite it as: Bedi & Narang, Assessing State School Education Laws on Administrative Safeguards,
6(2) COMP. CONST. L. & ADMIN. L. J. 1 (2022).
1 Jayana Bedi is a Senior Associate, Research & Training Programs at Centre for Civil

Society. The author may be reached at <jayana@[Link]>.

2 Prashant Narang is a Senior Fellow, Research & Training Programs at Centre for Civil

Society. The author may be reached at <[Link]@[Link]>.

** The authors would like to thank their interns Aashita Sharma, Abhishek Singh,
Anagha Sasidharan, Anshum Agarwal, Bharatt Goel, Disha Mohanty, Harsh Pati Tripathi,
Kartikay Agarwal, Mahek Shivani, Md Tasnimul Hassan, Nitish Dubey, Piyush Singh,
Pratham Arya, Samriddho Sen, Saniya Khanna, Sarthak Chaturvedi, Shailendra Shukla,
Shelal Lodhi Rajput, Siddhartha Mishra, Soundarya Rajagopal, Swantika Kumar and Viraj
Aditya for assisting them with the research process for this paper.

1
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS
INTRODUCTION

The National Education Policy, 20203 NEP

review and revise the existing regulatory framework for school education
in India. The NEP points out that the laws governing education should
aim at improving the overall quality of education imparted. While the NEP
gives the nudge to reform, states need a clear roadmap on the direction and
nature of reform. This requires a systematic review of the gaps in the
current regulatory framework. At present, research on the de jure regulatory
environment for private schools in India is sparse.4

This paper attempts to fill the gap by analysing all laws governing K-12
education5 across sixteen states of India using the Quality of Laws Toolkit
QoL Toolkit 6 This includes Andhra Pradesh (six laws), Delhi (two
laws), Gujarat (seven laws), Haryana (four laws), Jammu and Kashmir (two
laws), Jharkhand (four laws), Karnataka (five laws), Kerala (one law),
Madhya Pradesh (three laws), Maharashtra (seven laws), Nagaland (one
law), Puducherry (three laws), Rajasthan (three laws), Telangana (six laws),
Uttar Pradesh (nine laws), and West Bengal (seven laws). The paper also
analyses all the rules under these laws.

The QoL Toolkit assesses laws on three parameters: representation, rights,

and resources. Representation safeguards ensure that the preferences and
interests of stakeholders are reflected in the law.7 Rights safeguards ensure
that the principles of natural justice and proportionality are incorporated
into the law to protect the rights of individuals. Resources safeguards ensure

administrative burden imposed by it is limited.8 The QoL Toolkit is based

on a review of literature on administrative law and a study of global indices.

3 MINISTRY OF HUMAN RESOURCE AND DEVELOPMENT, NATIONAL EDUCATION

POLICY (2020).
4 CENTRE FOR CIVIL SOCIETY, ANATOMY OF K-12 GOVERNANCE IN INDIA, 44 72

(2019), [Link]
5 K-12 refers to the school education system (including primary and secondary education).
6 Prashant Narang & Jayana Bedi, Quality of Laws Toolkit, CENTRE FOR CIVIL SOCIETY

(2021), [Link]
7 Id.
8 Id.

2
 CALJ 6(2)

For analysing state school education laws, the authors have only focused
9
rights

This paper studies seventy laws that regulate several aspects of school
education, such as the establishment of schools, fees charged, admission
process, teacher training and salaries, medium of instruction, the
establishment of school boards and tribunals, disbursement of grants, and
transfer/takeover of management. These require bureaucrats to take
administrative decisions that have a bearing not only on the rights and
liberties of individuals but also the ease with which schools can be
established and operated. For instance, under state school education laws,
the government has the authority to derecognise or shut schools. This has

school owners, along with their teaching and non-teaching staff. Although
there are procedures in place to shift students to nearby schools, such
closures impinge on their freedom and choice.

In the following sections, the authors provide an overview of the quality of

school education laws in sixteen states and highlight the best and worst
practices. Our analysis can be used to draw insights into the regulatory
hurdles that make it difficult for school owners to operate and could come
in the way of providing quality education. Ultimately, insights from this
paper could help guide deliberations on reforming the existing regulatory
architecture for school education.

METHODOLOGY

Since the early twentieth century, the role of the administrative state has
expanded considerably. The executive now exercises a wide range of
adjudicative and legislative powers. In education, the government exercises
discretionary powers at several touchpoints. Some of the adjudicative
functions performed by the government include making decisions on
granting recognition to schools and approving their fee structures. Along
with this, state legislatures have also granted the government quasi-
legislative powers. These include drafting rules that specify the manner of
conducting school inspections, minimum qualifications of teaching and

9Edward L. Rubin, Due Process and the Administrative State, 72 CAL. L. REV. 1044, 1044
1179 (1984).

3
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS
non-teaching staff and conditions for recognition of schools among others.
In the following sections, the authors elaborate on how a wide range of
these adjudicative and legislative powers are discretionary.

As the field of discretion expands, so does the room for arbitrary conduct.10
Given that these powers have a bearing on the rights and obligations of
people, they must be constrained by the same traditional procedural
restrictions that are applicable to judicial decisions.11 These procedural
restrictions include due process and the principles of natural justice.

A law must ensure that it protects the rights of all individuals to fare well
rights

(i) provides clear and sufficient guidance for bureaucratic decision

making;12
(ii) encodes due process and principles of natural justice by mandating
pre-decisional hearing,13 reasoned order14 and recourse to appeal

or property;15
(iii) introduces provisions that are proportional to its objective and the
problem it intends to tackle;16

10 Felix Frankfurter, The Task of Administrative Law, 75 U. PA. L. REV. 614, 614 621 (1927).
11 Rubin, supra note 9.
12 Jessica Mantel, Procedural Safeguards for Agency Guidance: A Source of Legitimacy for the

Administrative State, 61 ADMIN. L. REV. 343 (2009).

13 Clark Byse, Opportunity to be Heard in License Issuance, 101(1) U. PA. L. REV 57, 57 104

(1952).
14 V. S. Chauhan, Reasoned Decision: A Principle of Natural Justice, 37(1) J. INDIAN L. I. 92,

92 104 (1952).
15 1 HALSBURY S LAWS OF INDIA, ADMINISTRATIVE LAW (2019).
16 Jud Mathews, Proportionality Review in Administrative Law, in COMPARATIVE

ADMINISTRATIVE LAW (Susan Rose-Ackerman et al. eds., 2d ed., Edward Elgar 2017);
European Commission, Better Regulation Toolbox (2017), [Link]
default/files/[Link].

4
 CALJ 6(2)

(iv) -making powers

(including subject matter and timelines) and maintains strict control
over it.17

A law that lacks these basic safeguards leaves room for abuse of powers by
the executive and fails to protect individual liberties.18

individualised oppression by
the government
powers.19 In this paper, the authors review how state school education laws
fare on four integral administrative safeguards: due process and principles
of natural justice, legislative guidance on discretion, proportionality and
-making powers (questions
attached in the Annexure at the end of this paper). We will briefly discuss
these four safeguards in this section.

A. DUE PROCESS AND PRINCIPLES OF NATURAL JUSTICE

Any government action which deprives an individual of their life, liberty,

or property must follow due process and the principles of natural justice.
At the minimum, this includes: getting an advance (and adequate) notice of
such government action, an order detailing the reasons for undertaking the
particular action, and a reasonable opportunity to be heard before such a
deprivation.20 These principles are derived from common law and precede
the Indian Constitution.21

Once the decision is taken, an individual should have recourse to appeal

against the decision or get it reviewed by another authority.22 Central to this

17 Jaivir Singh & Raghab P. Dash, The Hazards of Erroneous Delegation, in THE INDIAN
PARLIAMENT AND DEMOCRATIC TRANSFORMATION, 233 251 (Ajay K. Mehra ed., 1st ed.
Routledge India 2017).
18 Rubin, supra note 9.
19 Id.
20 S.N. Jain, Judicial Systems and Legal Remedies, in THE INDIAN LEGAL SYSTEM, 151 (Joseph

Minattu ed., Indian Law Institute 2006); V.S Chauhan, Reasoned Decision: A Principle of
Natural Justice, 37 J. INDIAN L. I. 92, 92 104 (1995).
21 V. S. Deshpande, Administrative Law, in THE INDIAN LEGAL SYSTEM 335 383 (Joseph

Minattu ed., Indian Law Institute 2006).

22 1 HALSBURY S LAWS OF INDIA, ADMINISTRATIVE LAW (Universal LexisNexis 2d ed.

2019).

5
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS
appeal process is its independence. One of the key principles of natural
nemo judex in causa sua no one must be
23
a judge in their own case This ensures that bias and conflict do not creep
into the decision-making process.

Another important procedural safeguard is a check against inaction by

bureaucrats since delay in decision making may adversely impact individual
rights. A study by the Centre for Civil Society reveals that for some schools,
the application to obtain a Certificate of Recognition24 remained under
review for over five years.25 One way in which laws check against such
delays is by prescribing an upper time limit or deadline within which the
executive must make a decision. For instance, under the Haryana
appropriate authority

school within ninety days.26 In case the authority fails to do so, the
deemed to have been permitted
such deadlines, it becomes difficult for the judiciary to hold the
government accountable for inaction or slow action.27

Another safeguard that enhances procedural efficiency includes clear

identification of the decision-making authority.28 A law must encode all
these principles and make it binding for the executive. Without such an
express mandate, the executive may bypass, overlook, or compromise on
them while undertaking its functions.

B. LEGISLATIVE GUIDANCE ON DISCRETION

Given that performing quasi-judicial functions does not fall within the
29
The rule

23 Jain, supra note 20.

24 Schools in most states require this certificate to operate legally.
25 Centre for Civil Society, supra note 4.
26 Haryana School Education Rules, 2003, Gazette of Haryana, § 24 (Apr. 30, 2003).
27 Deadlines in Administrative Law, 156 U. PA.
L. REV. 923, 923 990 (2008).
28 Bhuvana Anand et al., What does a Framework of Regulatory Quality and Hygiene entail,

CENTRE FOR CIVIL SOCIETY (2019), [Link]

[Link].
29 Mantel, supra note 12 at 343.

6
 CALJ 6(2)

of law requires discretionary powers to be guided by certain guidelines.

it may be difficult to assess whether a particular
administrative decision is bona fide and based on merits and proper considerations or is
mala fide and motivated by some improper and corrupt consideration 30 This implies
that clearly defined guidance provides the necessary basis to bring action
into question and thereby helps ensure better accountability on the part of
the public officials. Unguided discretion opens room for corruption,
arbitrariness and misuse of powers.

One way to curb abuse of power is to ensure that the criteria on the basis
of which the executive takes decisions are laid down in the law itself.31 Clear
mention of the criteria in a statute helps introduce predictability.32 For
instance, laws must clearly enlist the criteria based on which the executive
should grant approvals or impose a penalty. A school owner must know
the criteria they have to meet to get recognised. Similarly, a law that

actions that could result in a penalty or sanction. The key challenge lies in
developing guidance th sufficient
providing flexibility to the executive to administer the law efficiently.33

C. PROPORTIONALITY AND NEXUS

and protect the rights, property and freedom of individuals is to use the
test of proportionality and nexus. Principles of proportionality help ensure
that there is a link between an intervention and the intended outcome. The
majority of the school education laws across states aim to better organise
and develop school education.34 The purpose of the proportionality test is
when the government acts, the means it chooses should be well adapted

30 Jain, supra note 20.

31 Anand et. al., supra note 28.
32 Mantel, supra note 12; Kevin M. Stack, An Administrative Jurisprudence: The Rule of Law in

the Administrative State, 115 COLUM. L. REV. 1985, 1991 1992 (2015).
33 Lewis Allen Sigler, The Problem of Apparently Unguided Administrative Discretion, 19 ST.

LOUIS L. REV. 261, 261 321 (1934).

34 As stated in the preamble of laws such as The Haryana School Education Act, 1995 and

the Delhi School Education Act, 1973.

7
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS
to achieve the ends it is pursuing 35 As a result, in order to pass the test of
proportionality, these laws must choose a method that aligns with the
aforementioned policy objective and is the least restrictive way to achieve
it.36

The proportionality test has four elements: (i) legitimacy; (ii) suitability; (iii)
necessity; and (iv) proportionality stricto sensu.37 It helps in two ways: first, to
ascertain if the objective aligns with what is needed to tackle the problem
identified, and second, to check if the measures used by the law (such as
penalties sanctioned) align with the stated objective of the law.38 In the
section above, we highlighted the need for laws to mention the criteria on
the basis of which the executive must decide. However, to pass the test of
proportionality, the criteria set must also be reasonable. In other words, the
criteria set must be neither arbitrary nor excessive.39

Arbitrary conditions are the ones that have no nexus or connection with
the purpose of the legislation or statute. Each law, through its preamble,
must make its objective clear and highlight the issue it intends to tackle.
This is a necessary precondition to ascertain whether the measures
introduced by the law are arbitrary or not. Excessive conditions are the
ones that go overboard. Measures are deemed to be excessive if there exists
a less restrictive alternative that could achieve the same intended result. The
least restrictive method is the one that puts the least restrictions on the
freedoms of an individual. For instance, the penalties imposed by law must
not be disproportionate to the misconduct or violation. 40

35 Jud Mathews, Proportionality Review in Administrative Law, in COMPARATIVE

ADMINISTRATIVE LAW (Susan Rose-Ackerman et al. eds. 2d ed., Edward Elgar 2017)
European Commission, Better Regulation Toolbox (2017), [Link]
default/files/[Link].
36 AHARON BARAK, PROPORTIONALITY: CONSTITUTIONAL RIGHTS AND THEIR

LIMITATIONS (Cambridge University Press 2012).

37 Id.
38 European Commission,

Proportionality, 21 26 (2015), [Link]

regulation-toolbox-2015_0.pdf.
39 Aparna Chandra, Proportionality in India: A Bridge to Nowhere?, 3(2) U. OXFORD HUM. RTS.

HUB J. 57, 62-85 (2020).

40 Arbitrariness and excessiveness are used to judge whether an administrative action is

reasonable; see Paul Craig, The Nature of Reasonableness Review, 66(1) CURRENT LEGAL

8
 CALJ 6(2)

D. CHECKS ON EXECUTIVE S RULE-MAKING POWERS

Apart from taking decisions on a case-by-case basis, the executive is also

responsible for putting in place general rules applicable to all.
Implementing a law requires technical and localised knowledge. As a result,
the parent legislation only outlines the broad principles and often leaves
matters of administrative details to be elaborated upon by the executive
based on the ground realities. This helps the executive to be more
responsive to changes.41

However, since rules are not made by elected representatives or subject to

close scrutiny, the legislature must ensure that these rules are not in
contravention of the interests of the people and the key stakeholders.
Safeguards in the parent legislation help ensure that the quasi-legislative
powers are not used indiscriminately.42 The parent legislation can establish
this check on the extent and volume of the subordinate legislation in
multiple ways.

First, the parent legislation must closely guide the subject matter on which
the executive can frame rules to limit the scope of their powers.43 Second,
the legislation should provide a time frame within which these rules must
be framed.44 This becomes especially salient when most provisions of the
law can be realised only once the rules notify the details. Third, to ensure
that the rules are in line with the statute and that the executive does not
overreach its powers, the law must prescribe that the rules made under it
be laid before the Parliament for approval.45

PROBLEMS 131 167 (2013). In this paper, we use the lens of reasonableness to evaluate
the provisions introduced under state school education laws.
41 CECIL THOMAS CARR, Delegated Legislation, in CONCERNING ENGLISH ADMINISTRATIVE

LAW (Columbia University Press, 1941).

42 JEFF KING, THE PROVINCE OF DELEGATED LEGISLATION (Oxford Scholarship Online

2020); PAUL BYRNE, PARLIAMENTARY CONTROL OF DELEGATED LEGISLATION (Oxford

University Press 1976).
43 Gwalior Rayon Silk Mfg. (Wvg) Co. Ltd. v. Asstt. Commissioners of Sales Tax, AIR

1974 SC 1660 (India). The Supreme Court held that delegation of rule-making powers
vague and
general terms
44 Singh & Dash, supra note 17.
45 Elmer A. Driedger, Subordinate Legislation, 38 CAN. B. REV. 1 (1960).

9
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
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In some cases, laws also mandate the executive to consult the relevant
stakeholders before notifying a rule.46 If the delegation of quasi-legislative
excessive
delegation 47 Similarly, the executive must exercise its powers within the
framework set by the parent statute. For instance, the executive must not
sub-delegate its powers unless it has an express authority to do so.

HOW DO STATE EDUCATION LAWS FARE ON THE

ADMINISTRATIVE SAFEGUARDS?

such as entry/establishment, regulation of fees, operation in line with set

norms, upgradation and exit. Given that these powers are exercised by the
executive (unelected officials), the laws must limit their scope to avoid
abuse. The executive ought to operate within a constrained framework and
only perform actions for which it has express legal authorisation.
Unrestrained powers can impinge on the rights of individuals. In the case
of school education, it could create hurdles for new entrants as well as
existing school owners. The majority of the seventy laws analysed confer
upon the executive either licensing or penal powers.

For the purpose of analysis, the authors further categorise quasi-judicial

powers as either related to approval or enforcement. An approval function
is defined as one where officials are required to use reason and ascertain
facts to determine whether approval is to be granted or not. Our analysis
shows that in the majority of the cases, these approval functions pertain to
recognition of schools. Other approval functions include grant/funding
approvals for aided schools, granting building permits and approval for the
upgradation of schools.

Enforcement functions are defined as ones where the executive penalises

individuals for non-compliance or violation of the provisions of the law.
These include actions such as revocation of licences or any other approval

46 For instance, the National Food Security Act 2013 mandates the draft of all rules to be
placed in the public domain before enactment. In compliance with this provision, the
Tamil Nadu food security rules, 2017 were placed in the public domain before being
enacted.
47 Jain, supra note 20.

10
 CALJ 6(2)

granted, derecognition, seizure of property, imposition of a monetary

penalty and imprisonment.

A. PROCEDURAL SAFEGUARDS

Issuance of Notice or a Pre-Decisional Hearing

Of the forty laws that give powers to the executive to grant approval, only
the Karnataka Education Act, 1983 mandates the issuance of a notice or a
pre-decisional hearing before an application is rejected. 48 But even in this
case, an opportunity to be heard is not provided for all kinds of approval
functions.

In cases where an individual is punished with a penalty or sanction, a pre-

decisional hearing and notice become even more pertinent to ensure that
no individual is wrongfully penalised. However, thirty-one laws fail to
mandate either a notice or a hearing before such enforcement measures are
undertaken.49

Identification of Decision-Making Authority and Time Limit

In eight laws, there is no clarity on who is the concerned authority for

approvals.50 Of the fifty-three laws that give enforcement powers to the
executive, in twenty-nine laws, there is no clarity on the official who is
responsible for ensuring enforcement. These laws either do not mention
the authority or direct the state government to identify and appoint the

48 See Karnataka Education Act, 1983, § 96, No. 1, Acts of Karnataka State Legislature,
1995.
49 See Karnataka Prohibition Of Admission Of Students To Unrecognized And

Unaffiliated Educational Institutions Act, 1992, No. 7, Acts of Karnataka State

Legislature, 1993; Andhra Pradesh Educational Institutions (Regulation of Admissions
and Prohibition of Capitation Fee) Act, 1983, No. 5, Acts of Andhra Pradesh State
Legislature, 1983 and Delhi School Education Act, 1973, No. 18, Acts of Delhi
Legislature, 1973.
50 See Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh State

Legislature, 1983; Maharashtra Self-Financed Schools (Establishment and Regulation)

Act, 2012 No. 1, Acts of Maharashtra State Legislature, 2013; and Puducherry School
Education Act, 1987, No. 9, Acts of Puducherry Legislature, 1987.

11
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS
concerned authority.51 Once identified, the state government needs to
notify the details of the authority either by way of rules or an order. This
information is often scattered and can be difficult to collect.

Only six laws set an upper time limit or deadline for all approval
functions.52 In Haryana, the law also puts in place a provision for deemed
approval.53

Reasoned Order

Once the executive decides to reject an application, the applicant must at

least know the ground for rejection.54 However, most laws either require
the executive to communicate the decision in writing (not necessarily with
reasons) or communicate the reasons to the concerned school (not
necessarily as a written order). The Karnataka Education Act, 1983
mandates the executive to do both in case an application for approval is
denied.55 For enforcement functions, only three laws mandate the
executive to provide a reasoned order when imposing a penalty or
sanction.56 Even in the case of these laws, the mandate for a reasoned order
is not imposed for all kinds of enforcement functions.

51 See Karnataka Prohibition Of Admission Of Students to Unrecognized And Unaffiliated

Educational Institutions Act, 1992, No. 7, Acts of Karnataka State Legislature, 1993;
Karnataka Educational Institutions (Prohibition of Capitation Fee) Act, 1984, No. 37,
Acts of Karnataka State Legislature, 1984; and Andhra Pradesh Educational Institutions
(Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983, No. 5, Acts of
Andhra Pradesh State Legislature, 1983.
52 See Haryana School Education Act, 1995, No. 12, Acts of Haryana State Legislature,

1999; Rajasthan Non-Government Educational Institutions Act, 1989, No. 19, Acts of
Rajasthan State Legislature, 1992; Jharkhand Education Tribunal Act, 2005, No. 6, Acts
of Jharkhand State Legislature, 2005; and The Gujarat Educational Institutions
(Regulation) Act, 1984, No. 7, Acts of Gujarat State Legislature, 1984.
53 See Haryana School Education Act, 1995, No. 12, Acts of Haryana State Legislature,

1999.
54 Chauhan, supra note 14 at 92 104.
55 Karnataka Education Act, 1983, §§ 31 & 36, No. 1, Acts of Karnataka State Legislature,

1995.
56 See Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh State

Legislature, 1983; Karnataka Education Act, 1983, No. 1, Acts of Karnataka State
Legislature, 1995; and Telangana Education Act, 1982 No. 1, Acts of Telangana State
Legislature, 1982.

12
 CALJ 6(2)

Recourse to Appeal

Finally, even after the decision has been taken, an individual or entity must
have recourse (in the form of appeal) to get the decision reviewed.57 Only
seventeen laws allow for appeal against all approval related decisions of the
government,58 and twelve laws allow an individual to appeal against all
kinds of enforcement actions or measures.59 In fact, under laws such as the
Karnataka Education Act, 198360 and the Maharashtra Educational
Institutions (Management) Act, 1976,61 appeals against some decisions of
the Director of Education and the state government are explicitly denied.

Independent Appeal Mechanism

For laws that provide an appeal mechanism, the authors have looked into
the constitution of the appellate committee to ascertain if the process is
independent. Some states like Gujarat, Jharkhand, Karnataka, and
Puducherry establish an independent appeal mechanism by setting up
independent tribunals.62 For instance, the Karnataka Education Act, 1983,

57 1 HALSBURY S LAWS OF INDIA, ADMINISTRATIVE LAW (Universal LexisNexis 2d ed.

2019).
58 See Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh State

Legislature, 1983; Haryana School Education Act, 1995, No. 12, Acts of Haryana State
Legislature, 1999; M.P. Ashaskiya School Viniyaman Adhiniyam, 1975, No. 33, Acts of
Madhya Pradesh State Legislature, 1975; and Puducherry School Education Act, 1987,
No. 9, Acts of Puducherry Legislature, 1987.
59 Instances include: Gujarat Higher Secondary Schools Services Tribunal Act, 1983, No.

12, Acts of Gujarat State Legislature, 1983; The Gujarat Educational Institutions
(Regulation) Act, 1984, No. 7, Acts of Gujarat State Legislature, 1984; Puducherry School
Education Act, 1987, No. 9, Acts of Puducherry Legislature, 1987; Rajasthan Non-
Government Educational Institutions Act, 1989, No. 19, Acts of Rajasthan State
Legislature, 1992; Rajasthan Schools (Regulation of Fee) Act, 2016, No.14, Acts of
Rajasthan State Legislature, 2016; and Telangana Education Act, 1982, No. 1, Acts of
Telangana State Legislature, 1982.
60 The Karnataka Education Act, 1983, No. 1, Acts of Karnataka State Legislature, 1995.
61 The Maharashtra Educational Institutions (Management) Act, 1976, No. 13, Acts of

Maharashtra State Legislature, 1976.

62 See Gujarat Higher Secondary Schools Services Tribunal Act, 1983, No. 12, Acts of

Gujarat State Legislature, 1983; Gujarat Educational Institutions Services Tribunal Act,
2006, No. 20, Acts of Gujarat State Legislature, 2006; Jharkhand Education Tribunal Act,
2005, No. 6, Acts of Jharkhand State Legislature, 2005 and Puducherry School Education
Act, 1987, No. 9, Acts of Puducherry Legislature, 1987.

13
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS
requires the state government to constitute Education Appellate Tribunals
for adjudicating appeals.63 These tribunals must have a judicial officer who
is not below the rank of a district judge. In other cases, appeals against an
officer in the education department are heard by a senior officer in the
same department.

B. GUIDANCE ON EXECUTIVE DISCRETION

No Criteria for Approval or Breach

Of the forty laws that confer upon the executive the authority to grant
approvals, only ten laws define the criteria on the basis of which all such
approvals may be granted.64 In twenty laws, the power to define the criteria
has been delegated to the executive.65 Such delegation may give the
executive room to introduce conditions that are not consistent with the
parent legislation or are ultra-vires.

For instance, several state rules under the Right to Education Act require
societies -for-profit.66 Such a
requirement finds no mention in the parent legislation and has considerable
ramifications for school owners. It disallows individuals, a group of
individuals, or companies registered under the Companies Act, 2013 from
setting up schools.67

Of the laws studied, only twenty-three laws lay down the criteria for the
imposition of penalties or sanctions. Of these, some laws prescribe very
wide criteria for what constitutes a breach. For instance, under the Jammu

63 The Karnataka Education Act, 1983, § 96, No. 1, Acts of Karnataka State Legislature,
1995.
64 See Jharkhand Education Tribunal Act, 2005, No. 6, Acts of Jharkhand State Legislature,

2005; Gujarat Self-financed Schools (Regulation of Fees) Act, 2017, No. 12, Acts of
Gujarat State Legislature, 2017.
65 See Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh State

Legislature, 1982; Bihar High Schools (Control and Regulation Administration) Act, 1960,
No. 13, Acts of Bihar State Legislature, 1960 and Puducherry School Education Act, 1987,
No. 9, Acts of Puducherry State Legislature, 1987.
66 Akash Pratap Singh & Tarini Sudhakar, Restrictions on For-Profit Education in India,

CENTRE FOR CIVIL SOCIETY (May 11, 2020), [Link]

india.
67 Id.

14
 CALJ 6(2)

and Kashmir School Education Act, 2002, the executive can derecognise
any school if it is of the opinion that the school has violated provisions of
the Act.68 In twenty laws, this power is delegated to the executive. For
instance, the Madhya Pradesh Secondary Education Act, 1965 prescribes
the board to lay down the criteria for the derecognition of schools.69

Ambiguous, Vague and Unclear Criteria

Although twenty-three laws mention the criteria for breach or violation,

they are often vague, ambiguous, and unclear. This expands the scope of
powers that the executive can exercise. In Andhra Pradesh, recognition can
public interest 70 However, it is not clear what constitutes
public interest
Institutions (Transfer of Management) Act, 1971, ambiguous terms are
used in the objective itself:71

An Act to provide for the transfer of management of the undertaking of certain

educational institutions, which are being managed in a manner detrimental to the
public interest and to provide for matters connected with the purpose aforesaid.

detrimental to public interest -encompassing. The

Act does not define what actions would be considered detrimental to
public interest. Similarly, under the Maharashtra Self-Financed Schools
(Establishment and Regulation) Act, 2012, permission for upgradation can
be withdrawn if the school is found to be engaging in activities that are
prejudicial [to] the interests of the students 72 The issue with such overarching
phraseology is that almost any action on the part of the school can be
misconstrued to be prejudicial to the interests of the students.

68 Jammu & Kashmir School Education Act, 2002, § 16, No. 21, Acts of Jammu &
Kashmir State Legislature, 2002.
69 Madhya Pradesh Secondary Education Act, 1965, No. 3, Acts of Madhya Pradesh State

Legislature, 1966.
70 The Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh State

Legislature, 1982.
71 The Maharashtra Educational Institutions (Transfer of Management) Act, 1971, No. 49,

Acts of Maharashtra State Legislature, 1971.

72 Maharashtra Self-Financed Schools (Establishment and Regulation) Act, 2012, No. 1,

Acts of Maharashtra State Legislature, 2013.

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 ASSESSING STATE SCHOOL EDUCATION LAWS ON
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Some laws expand the sphere of powers that the executive can exercise.
However, they fail to provide sufficient guidance to the executive for
exercising these powers. For instance, the Telangana Education Act, 1982
grants power to the executive to exempt any school from the provisions of
the law.73 This could potentially open room for favouritism.

C. PRINCIPLES OF PROPORTIONALITY AND NEXUS

Unclear Objective of the Law

Twenty-three laws do not mention the issue that they intend to tackle in
their objective.74 Furthermore, eighteen laws use ambiguous and unclear
integrated development better
organisation national integration 75 In such cases, an assessment of
whether the law is meeting its objectives becomes difficult.

Arbitrary and Excessive Conditions/Provisions

Four laws introduce conditions that are either arbitrary or excessive.76 The
reform, organise and develop
77
integrated development
This objective does not clarify the specific challenge that warrants the

73Telangana Education Act, 1982, § 100, No. 1, Acts of Telangana State Legislature, 1982.
74 See, for instance, Gujarat Educational Institutions (Regulation) Act, 1984, No. 7, Acts
of Gujarat State Legislature, 1984; Haryana School Teachers Selection Board Act, 2011,
No. 21, Acts of Haryana State Legislature, 2011; and Telangana Private Educational
Institutions Grant-In-Aid (Regulation) Act, 1988, No. 22, Acts of Telangana State
Legislature, 1988.
75 See Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh State

Legislature, 1982; Delhi School Education Act, 1973, No. 18, Acts of Delhi Legislature,
1973; and the U.P. Educational Institutions (Taking-Over of Management) Act, 1976, No.
18, Acts of Uttar Pradesh State Legislature, 1976.
76 See Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh State

Legislature, 1982; Karnataka Education Act, 1983, Acts of Karnataka State Legislature,
1995; Telangana Education Act, 1982, No. 1, Acts of Telangana State Legislature, 1982;
and Maharashtra Educational Institutions (Management) Act, 1976, No. 13, Acts of
Maharashtra State Legislature, 1976.
77 The Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh State

Legislature, 1982.

16
 CALJ 6(2)

attention of the government. One of the conditions that it introduces for

need ol
78
in the first place. It is not clear how this condition has any nexus with the
objective of the statute.

A criterion that is excessive creates an unnecessary compliance burden for

school owners to meet their objectives. For instance, the Karnataka
Education Act, 1983 aims to improve the quality of education and ensure
harmonious development of the mental and physical faculties of students 79 To meet
this end, one of its provisions prohibits employees of a recognised school
from giving private tuition to any individual.80 While many may argue that
private tuition to some students of the school can compromise the
performance of other students,81 it is not clear why private tuition to
students outside the school is prohibited. This criterion for breach is
excessive and prevents an individual from having an alternative source of
livelihood.

In other cases, the penalty sanctioned exceeds what the violation may
merit. The Madhya Pradesh Ashaskiya School Viniyaman Adhiniyam, 1975
any rule formulated under this Act could
attract an imprisonment of up to six months.82 Under the Andhra Pradesh
Education Act, 1982 the government can take over the management of a
public interest
83
proper management Furthermore, if the
government deems any contract that the erstwhile management engaged in

78 The Andhra Pradesh Education Act, 1982, § 20(3), No. 1, Acts of Andhra Pradesh State
Legislature, 1982.
79 Preamble of the Karnataka Education Act, 1983, No. 1, Acts of Karnataka State

Legislature, 1995.
80 Karnataka Education Act, 1983, § 4, No. 1, Acts of State Karnataka Legislature, 1995.
81 Hai-Anh Dang & F. Halsey Rogers, The Growing Phenomenon of Private Tutoring: Does It

Deepen Human Capital, Widen Inequalities, or Waste Resources?, 23(2) THE WORLD BANK
RESEARCH OBSERVER (2008).
82 The Madhya Pradesh Ashaskiya School Viniyaman Adhiniyam, 1975, § 21(e), No. 33,

Acts of Madhya Pradesh State Legislature, 1975.

83 The Andhra Pradesh Education Act, 1982, § 60, No. 1, Acts of Andhra Pradesh State

Legislature, 1982.

17
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS
bad faith detrimental to the interests of the educational institution
contracts can be varied or even cancelled.84

The Andhra Pradesh Educational Institutions (Regulation of Admissions

and Prohibition of Capitation Fee) Act, 1983 prohibits capitation fees,
regulates school fees, regulates the admission of students, and lays down
norms for the collection of donations.85 If, according to the government,
an educational institution is found to violate any provisions of the Act, it
can take over the management of the school. Another section of the Act
prescribes imprisonment (that can go up to a term of seven years) for
contravention of the provisions of the Act.86 However, the provision to
punish those in violation with jail time serves no additional purpose than
mere removal of the guilty parties would not do.

Some rules also elaborate on enforcement measures to be taken for

students (not just school owners). For instance, under the Delhi School
Education Rules, 1973 a student below fourteen years of age can be shifted
special school
spit in a spittoon.87 Shifting schools for not meeting these disciplinary
requirements is an excessive measure.

Archaic and Outdated Provisions

Many state school education laws were introduced before the year 2000.
While, in most cases, the provisions of these laws have been revisited and
revised in the form of amendments, some laws continue to have archaic
and outdated provisions. For instance, under the Karnataka Education Act
1983, penalties for contravention range from Rs. 2 to Rs. 100. 88

84 The Andhra Pradesh Education Act, 1982, § 62, No. 1, Acts of Andhra Pradesh State
Legislature, 1982.
85 Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of

Capitation Fee) Act, 1983, No. 5, Acts of Andhra Pradesh State Legislature, 1983.
86 Andhra Pradesh Educational Institutions (Regulation of Admissions and Prohibition of

Capitation Fee) Act, 1983, § 9, No. 5, Acts of Andhra Pradesh State Legislature, 1983.
87 The Delhi School Education Rules 1973, R. 36, Gazette of Delhi, pt. IV (Dec. 12, 1973).
88 The Karnataka Education Act, 1983, § 113, No. 1, Acts of Karnataka State Legislature,

1995.

18
 CALJ 6(2)

D. CHECKS ON THE EXECUTIVE S RULE-MAKING POWERS

-Making
Powers

Of the seventy laws studied, sixty-two laws delegate rule-making powers to

the executive. However, only thirty-one laws enumerate distinct rule heads
that the executive can cover in the rules. Other laws leave the subject matter
open to the executive.89

Of the laws that enumerate rule heads, twenty-six laws also contain a
residual clause 90 This clause gives the executive the powers to make rules
any other matter
eleven rules have introduced provisions that fall under the residual clause.
For instance, Rules 34-37 of the Delhi School Education Rules, 1973
mandate an enforceable code of conduct for students in educational
institutions.91 This does not fall under any of the rule-heads of the Delhi
School Education Act, 1973 (except the residual clause).92

Apart from limits in the range, there must also be limits in the depth of
rule-making powers exercised by the executive.93 Rules must largely cover
administrative details rather than questions of substantive rights and duties
of individuals. However, we noted in the sections above that the parent
legislation often delegates the power to frame criteria for approval or

89 See, for instance, the Gujarat Educational Institutions Services Tribunal Act, 2006, No.
20, Acts of Gujarat State Legislature, 2006; Bihar Non-Government Elementary Schools
(Taking Over of Control) Act, 1976, No. 30, Acts of Bihar State Legislature, 1976;
Maharashtra Educational Institutions (Regulation of Fee) Act, 2011, No. 7, Acts of
Maharashtra State Legislature, 2011; and Puducherry Compulsory Elementary Education
Act, 2000, No. 8, Acts of Puducherry Legislature, 2001.
90 See, for instance, Andhra Pradesh Education Act, 1982, Acts of Andhra Pradesh State

Legislature, 1982; Delhi Primary Education Act, 1960, No. 39, Acts of Delhi Legislature,
1960; Gujarat Secondary and Higher Secondary Education Act, 1972, No. 18, Acts of
Gujarat State Legislature, 1972; and Haryana School Education Act, 1995, No. 12, Acts
of Haryana State Legislature, 1999.
91 The Delhi School Education Rules, 1973, Gazette of Delhi, pt. IV (Dec. 12, 1973).
92 The Delhi School Education Act, 1973, No. 18, Acts of Delhi Legislature, 1973.
93 JEFF KING, THE PROVINCE OF DELEGATED LEGISLATION (Oxford Scholarship Online

2020); PAUL BYRNE, PARLIAMENTARY CONTROL OF DELEGATED LEGISLATION (Oxford

University Press 1976).

19
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS
breach to the executive. For instance, Section 43 of the Rajasthan Non-
Government Educational Institutions Act, 1989 requires the state
government to prescribe the terms, conditions, and standards on the basis
of which educational institutions will be recognised.94

Laying Before the Parliament and Consulting Relevant Stakeholders

Of the sixty-two laws that delegate rule-making powers, twenty laws do not
put in place any mandate for rules to be laid before the Parliament. 95 Of
the sixty-two laws that delegate rule-making powers, no law directs the
executive to consult stakeholders while drafting rules.96

Other Challenges with the Delegation of Rule-Making Powers

The authors observed three other issues with the delegation of rule-making
powers. First, laws in Delhi and Gujarat allow the designated authority or
official to sub-delegate their rule-making powers.97 Such sub-delegation
could make control over subordinate legislation more difficult. Second, five
laws (across Andhra Pradesh, Jharkhand, Maharashtra, and Karnataka)
allow the executive to give retrospective effect to rules.98

94 The Rajasthan Non-Government Educational Institutions Act, 1989, § 43, No. 19, Acts
of Rajasthan State Legislature, 1992.
95 See, for instance, Jharkhand Academic Council Act, 2002, No. 2, Acts of Jharkhand State

Legislature, 2003; Gujarat Secondary and Higher Secondary Education Act, 1972, No. 18,
Acts of Gujarat State Legislature, 1972 and Puducherry Board of Secondary and Higher
Secondary Education Act, 2003, No. 8, Acts of Puducherry Legislature, 2004.
96 See Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh State

Legislature, 1982; Delhi School Education Act, 1973, No. 18, Acts of Delhi Legislature,
1973; Haryana School Education Act, 1995, No. 12, Acts of Haryana State Legislature,
1999; and Kerala Education Act, 1958, No. 6, Acts of Kerala State Legislature, 1959.
97 See Delhi Primary Education Act, 1960, No. 39, Acts of Delhi Legislature, 1960; and

Gujarat Compulsory Primary Education Act, 1961, No. 41, Acts of Gujarat State
Legislature, 1961.
98 See Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh State

Legislature, 1982; Jharkhand Education Tribunal Act, 2005, No. 6, Acts of Jharkhand
State Legislature, 2005; Karnataka Education Act, 1983, No. 1, Acts of Karnataka State
Legislature, 1995; Karnataka Compulsory Primary Education Act, 1961, No. 9, Acts of
Karnataka State Legislature, 1961 and Maharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977, No. 3, Acts of Karnataka State Legislature,
1978.

20
 CALJ 6(2)

Allowing retrospective enactment of rules increases uncertainty and

unpredictability.99 In the case of school education, this has a bearing on the
decisions that school owners take to improve quality and expand access to
education.

Third, twenty- power to remove difficulties 100

This provision, also known as the Henry clause, allows the executive to
modify or alter the law itself in case challenges emerge during
implementation.101 Since such changes typically do not go through the
legislative process, this power must be subject to certain restrictions. These
include limits to the nature of amendments that may be made and limits to
the time frame within which such amendments may be made.102 The former
inconsistent
with the Act
the executive ceases to have powers to amend the law.

Of the laws that grant this power to the executive, eleven laws fail to set
103
The Karnataka
Secondary Education Examination Board Act, 1966 and Telangana Private
Aided Educational Institutions Employees (Regulation of Pay) Act, 2005
are the only two laws that require such orders to be laid before the
Parliament after it is published.104

99 CHARLES SAMPFORD, Arguments against Retrospective Laws, in RETROSPECTIVITY AND THE

RULE OF LAW (Oxford Scholarship Online 2012).
100 See, for instance, Andhra Pradesh Education Act, 1982, No. 1, Acts of Andhra Pradesh

State Legislature, 1982; Delhi School Education Act, 1973, and Kerala Education Act,
1958.
101 V.S Deshpande, Rights and Duties under the Constitution, 15 J. INDIAN L. I. 94, 94 108

(1973).
102 Id.
103 For instance, see Gujarat Secondary and Higher Secondary Education Act, 1972, No.

18, Acts of Gujarat State Legislature, 1972; Madhya Pradesh Secondary Education Act,
1965, No. 3, Acts of Madhya Pradesh State Legislature, 1966; Bihar Non-Government
Elementary Schools (Taking Over of Control) Act, 1976, No. 30, Acts of Bihar State
Legislature, 1976 and Telangana Education Act, 1982, No. 1, Acts of Telangana State
Legislature, 1982.
104 See Karnataka Secondary Education Examination Board Act, 1966, No. 16, Acts of

Karnataka State Legislature, 1966 and Telangana Private Aided Educational Institutions
Employees (Regulation of Pay) Act, 2005, No. 37, Acts of Telangana State Legislature,
2005.

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 ASSESSING STATE SCHOOL EDUCATION LAWS ON
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Along with reviewing the parent legislations, we also studied sixty-one rules
governing K-12 education to review how the executive exercises its power
under the parent statute.

No Clarity on where Rules Derive their Power From

The government is required to mention the section and subsection of the

parent act from which they derive their powers in the preamble of the rules.
However, four rules (across Gujarat, Madhya Pradesh, Rajasthan and Uttar
Pradesh) do not mention the section or subsection of the parent act from
which they derive their power.105 Without a clear mention of the relevant
provisions of the parent act, it becomes difficult to adjudge whether rules
are ultra vires.

Rules Go Beyond the Mandate of the Act

Even in cases where the relevant sections and subsections have been
mentioned, we observed that provisions introduced under three rules
(across Andhra Pradesh, Delhi, and Goa) go beyond the rule heads
mentioned in the parent act.106 For instance, the Delhi School Education
Rules, 1973 requires schools to ensure that they do not affect enrolment
levels in nearby schools if they are to obtain recognition.107 Such a
condition finds no mention in the parent act. One example of best
practices is the Haryana School Education Rules, 2003. For each rule, the
subordinate legislation has a header that refers to the section of the parent

105 See Assistant Education Inspector and Assistant Teacher, Class III (Departmental
Examination) Rules, 2012, Gazette of India (Dec. 21, 2012); The Rajasthan Education
Department (Primary and Secondary Teachers) Benevolent Fund Rules, 1975, Gazette of
Rajasthan, pt. IV(I) (Feb. 10, 1975); Rules of the U.P. School and College Teachers
Gratuity Fund (1964), Gazette of Uttar Pradesh, pt. VIII (Apr. 1, 1964) and The M.P.
Date of Birth (Entries in the School Register) Rules, 1973, Gazette of Madhya Pradesh,
pt. IV (Nov. 16, 1973).
106 See Andhra Pradesh Educational Institutions (Establishment, Recognition,
Administration and Control of Institutions of Higher Education) Rules, 1987, Gazette of
Andhra Pradesh, pt. I (Jan. 1, 1994); Delhi School Education Rules, 1973, Gazette of
Delhi, pt. IV (Dec. 12, 1973); and Goa, Daman and Diu School Education Rules, 1986,
Gazette of Goa and Daman and Diu, § 29 (Dec. 22, 1988).
107 Delhi School Education Rules, 1973, R. 50, Gazette of Delhi, pt. IV (Dec. 12, 1973).

22
 CALJ 6(2)

legislation under which it has been drafted (or from which it derives its
powers).108

Rules Introduce Criteria that are Arbitrary

Three rules introduce criteria for decision-making that are inconsistent

with the provisions of the parent act.109 Rules under the Madhya Pradesh
Secondary Education Act, 1965 require schools to have at least one acre of
land to be recognised. It also requires schools to deposit a security fund on
the basis of the number of students (rather than a standard deposit
amount).110

The deposit becomes a costly affair for schools that have a high number of
students. Furthermore, this amount is over and above the recognition fees
that the school needs to pay. Such criteria have not been mentioned in the
parent statute. There is no clarity on how these criteria relate to the
objective of the Act.

Similarly, Rule 50 of the Delhi School Education Rules, 1973111 requires a

private school to be run by a society registered under the Societies
Registration Act, 1860 or a Trust.112 The parent act does not introduce any
such condition. Another example is that of the Andhra Pradesh
Educational Institutions (Establishment, Recognition, Administration and
Control of Schools under Private Managements) Rules, 1993. The rules
create a limitation that finds no mention in the parent legislation. It allows
schools to be upgraded to class ten only after three years have passed since
the commencement of class eight.

108 Haryana School Education Rules, 2003, R. 24, Gazette of Haryana (Apr. 30, 2003).
109See Andhra Pradesh Educational Institutions (Establishment, Recognition,
Administration and Control of Schools under Private Managements) Rules, 1993; Delhi
School Education Rules, 1973; and Madhya Pradesh Recognition of Secondary and
Higher Secondary School Rules, Secondary School Rules, 2017.
110 Madhya Pradesh Recognition of Secondary and Higher Secondary School Rules, 2017,

R. 5, Gazette of Madhya Pradesh (Mar. 09, 2017).

111 The Delhi School Education Rules, 1973, R. 50, Gazette of Delhi, pt. IV (Dec. 12,

1973).
112 Societies Registration Act, 1860, No. 21, Acts of Parliament, 1860.

23
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS
CONCLUSION

This paper reviewed the quality of the laws and rules governing K-12
education across sixteen states. We found that several school education
laws and rules fare poorly on the four integral administrative safeguards:
due process and principles of natural justice, legislative guidance on
-
making powers. The absence of these safeguards provides the executive
with considerable discretionary powers to derecognise or shut schools,
regulate their fees, and take over their management. Such regulatory
hurdles may discourage the establishment of new schools, limit innovation,
and affect access to quality education. Together, this can impinge on the
rights and liberties of children, school owners, and the employees working
in schools.

On one hand, laws continue to grant tremendous discretionary powers to

the executive in the regulation of schools, on the other hand, they fail to
provide procedural safeguards which guide or limit this discretion.
Furthermore, some laws have also introduced provisions that are excessive
or arbitrary in nature.

Wide discretionary powers often run the risk of abuse in the form of rent-
seeking and corruption. Past analyses show the numerous ways in which
the departments of school education commit excesses while exercising its
discretionary powers.113 Given that the executive draws its powers from the
legislations studied, it is imperative that education laws encode the
safeguards highlighted in this paper.

113CENTRE FOR CIVIL SOCIETY, ANATOMY OF K-12 GOVERNANCE IN INDIA, 44 72

(2019).

24
 CALJ 6(2)

ANNEXURE

We used the following question-sets to analyse the presence of

administrative safeguards in state school education laws and rules. This
question-set is taken from the Quality of Laws Toolkit.114

PARENT LEGISLATION

Questions Response
(Y/N/N.A)

Does the preamble of the legislation capture why the

legislation was introduced?

Is the preamble written clearly and unambiguously? Provide

reasons and examples to substantiate.

Does the legislation delegate rule-making powers to the

executive?

Does the legislation empower the executive to sub-delegate

its legislative/rule-making powers?

Does the legislation grant the executive (rule-making

authority) power to give retrospective effect to the
subordinate legislation?

114 Narang & Bedi, supra note 6.

25
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS

Does the legislation prescribe consultation with

stakeholders while making subordinate legislation?

If the legislation delegates rule-making powers to the

executive are the rule-making heads for the subordinate
legislation enumerated in the parent legislation?

If the parent legislation grants the executive power to

remove difficulties, are there any limits to that power?

Does the parent legislation introduce a residual clause as

one of its rule-heads?

If the legislation delegates rule-making powers to the

executive, does it specify when the subordinate legislation
must be made?

Does the parent legislation mandate that the subordinate

legislation be placed before the parliament/state legislature
before being notified?

Does the legislation confer upon the executive the authority

to grant approval/licence?

Does the legislation identify the decision-making authority

for granting approval/licence?

26
 CALJ 6(2)

Does the legislation empower the concerned authority to

sub-delegate its powers to grant approval?

Does the legislation define the criteria for grant of approval?

Does the legislation delegate the power to define the criteria

for approval to the executive?

Are there any arbitrary conditions laid down for the grant
of approval?

Are there any excessive conditions laid down for the grant
of approval?

Does the legislation set a time limit for grant of

approval/licence?

Does the legislation mandate the decision-making authority

to provide reasons in writing (for denial or approval)?

Does the legislation mandate a pre-decisional hearing (or

issuance of a show-cause notice) in case of denial of
approval?

Does the legislation allow for an appeal against the decision

on denial of approval?

27
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS

Is there a limitation period within which the aggrieved has

to file an appeal?

If yes, has the appellate authority been empowered to

condone the delay in appropriate cases?

Does the legislation prescribe the time limit within which

the appellate authority must dispose of the appeal?

Can the appellate authority extend the time limit if there is

a reasonable cause for delay?

Does the legislation confer upon the executive the

responsibility to ensure enforcement?

Does the legislation identify the authority for carrying out

enforcement actions?

Does the legislation empower the concerned authority to

sub-delegate its powers to ensure enforcement?

Does the legislation define the criteria for breach?

Does the legislation delegate the power to define the criteria

for breach to the executive?

28
 CALJ 6(2)

Are these conditions/criteria clear and unambiguous?

Are any of these criteria for breach arbitrary?

Are all the criteria proportionate?

Are all the measures proportionate to the breach?

Does the legislation mandate the enforcement authority to

provide reasons for its decision in writing?

Does the legislation mandate a pre-decisional hearing (or

issuance of show cause notice)?

Does the legislation allow for appeal against the decisions

of the enforcement authority?

Is there a limitation period within which the aggrieved has

to file an appeal?

If yes, has the appellate authority been empowered to

condone the delay in appropriate cases?

Does the legislation prescribe the time limit within which

the appellate authority must dispose of the appeal?

29
 ASSESSING STATE SCHOOL EDUCATION LAWS ON
ADMINISTRATIVE SAFEGUARDS

Can the appellate authority extend the time limit if there is

a reasonable cause for delay?

Does the Act provide for an independent appeal

mechanism?

SUBORDINATE LEGISLATION

Questions Response
(Y/N/N.A)

Does the subordinate legislation mention the section and

subsection of the parent legislation under which it has been
introduced (in its preamble)?

Does the subordinate legislation sub-delegate rule-making

powers?

Has the subordinate legislation been given retrospective

effect?

Does the subordinate legislation introduce any provision(s)

under the residual powers clause of the parent legislation?

30
 CALJ 6(2)

Does the subordinate legislation introduce any provision

that does not fall under the clause(s)/ rule-head(s) it has
invoked?

If not, does the subordinate legislation introduce any

provision that does not fall under the rule-head(s)
mentioned in the parent legislation?

Was the subordinate legislation placed before the

Parliament/state legislature before being notified?

Does the subordinate legislation introduce any criterion for

approval that is inconsistent with the objective of the parent
legislation?

Does the subordinate legislation introduce any criterion for

breach that is inconsistent with the objective of the parent
legislation?

Does the subordinate legislation introduce any measures of

enforcement that are inconsistent with the objective of the
parent legislation?

Was the subordinate legislation made within the time frame

mentioned (if any) in the parent legislation?

31
 CALJ 6(2)

-CONVERSION LAWS

MANISH1

Religious conversions, especially with allegations of force involved, have continued to be

an issue of concern among Indian state administrations since pre-independence. Following
the Constitution of India coming into force, a specific right under Article 25 of the
Constitution provided all persons with the freedom to profess, practice and propagate
religion, the last of which has been the subject of much controversy. Early state legislations
igious practitioners seeking
to convert others, were upheld by the Supreme Court as reasonable restrictions on Article
25 of the Constitution on the grounds of public order in Rev. Stainislaus v. State of
Madhya Pradesh.

A newer set of laws since 2000 has, however, sought to place additional substantive
burdens on individuals seeking to change their religion and bring them under intensive
surveillance by the State. Analysing a cross-section of these laws from different states,
this article argues that these newer provisions are unconstitutional for three reasons: they
are in excess of the restrictions permitted in Stainislaus, they violate Article 25 of the
Constitution, and are not saved by the exception in public order. Additionally, these
restrictions dee
developed in Indian jurisprudence at the time of the decision in Stainislaus, but is now
clearly defined by a nine-judge bench in Justice K. S. Puttaswamy v. Union of India.

INTRODUCTION

honestly believe that I will attain salvation according to my way of thinking, and

* Cite it as: Manish, Evaluating -Conversion Laws, 6(2) COMP. CONST. L. &
ADMIN. L. J. 32 (2022).
1 Manish is a Senior Research Associate at Centre for Policy Research, New Delhi and a

graduate of the National Law School of India University, Bangalore. The author may be
reached at <manish@[Link]>.
** The arguments presented in this article first appeared in a post on the Indian
Constitutional Law and Philosophy Blog ([Link]
/guest-post-why-the-new-anti-conversion-laws-are-unconstitutional/).
*** The author is grateful to Shylashri Shankar for her insightful comments which added
considerable nuance to this article and to Himanshi Yadav, Piyush Sharma and Rashi Jeph,
for their valuable research and editorial assistance.

32
 EVALUATING NEW ANTI-CONVERSION LAWS

according to my religion, and you Sir, honestly believe that you will attain
salvation according to your way, then why should I ask you to attain salvation
according to my way, or way, should you ask me to attain salvation according to
your way? If you accept this proposition, then, why propagate religion? As I said,
religion is between oneself and his God. Then, honestly profess religion and
practise it at home. Do not demonstrate it for the sake of propagating. Do not
show to the people that this is your religion for the sake of showing. If you start
propagating religion in this country, you will become a nuisance to others. So far
it has become a nuisance.

Tajamul Hussain, Member, Constituent Assembly2

Anxieties regarding religious conversion manifested themselves as long ago

as the debates of the Constituent Assembly. These anxieties, in a broader
South Asian context, have been characterised as arising from a situation
dominant religious (and often ethnic) majority feels threatened by an active
and growing religious minority 3 These feelings were also closely linked to
perceptions of the role of (white) Christian missionaries in perpetuating
British and Portuguese colonialism in various parts of the subcontinent.4

Prior to Independence, a handful of princely states in India had legislations

prohibiting religious conversion, ostensibly targeted at British
missionaries.5 Post-Independence, the drafting of the Constitution was
propagation
of the right to freedom of religion, especially in the background of
communal violence surrounding the partition. Opponents of this wording
propagation
religions, thus serving as a means to convert people from Hinduism to
Islam and Christianity, which they argued would exacerbate religious
tensions. Eventually, these objections were rejected by the Constituent

2 7 CONSTITUENT ASSEMB. DEB. (Dec. 3, 1948), [Link]

onstitution_assembly_debates/volume/7/1948-12-03#7.66.254.
3 Meghan Grizzle Fischer, Anti-Conversion Laws and the International Response, 6 PENN ST. J.

L. & INT L AFF. 1, 11 (2018).

4 James Andrew Huff, Religious Freedom in India and Analysis of the Constitutionality of Anti-

Conversion Laws, 10 RUTGERS J. L. & RELIGION 1, 4 (2009).

5 Over a dozen princely states, including Kota, Bikaner, Jodhpur, Raigarh, Patna,
Surguja, Udaipur, and Kalahandi See Laura Dudley Jenkins, Legal Limits on Religious Conversion
in India, 71 L. & CONTEMP. PROBS. 109, 113 (2008).

33
 CALJ 6(2)

Assembly.6 The final provision regarding religious freedom under Article

25 of the Constitution, which has remained unamended since, guaranteed
equally to all persons the freedom of conscience and the right to freely
profess, practice and propagate religion, subject to public order, health and
the other provisions of Part III. Following the failure in the Constituent
propagation an element of the right under Article
25 of the Constitution, further attempts were made to introduce anti-
conversion legislations in Parliament, but these never came to fruition. 7
Today, while there remains no move in Parliament to legislate on the
matter, a number of states have sought to enact restrictions on conversion,
several of which are under challenge before courts.

The rest of this article is divided into four parts. The first part provides
historical background to the issue, the older laws and the build up to the
Stainislaus. The second part examines the
Stainislaus and provides two critiques of the judgment.
The third part looks at the newer post-2000 laws and the judicial scrutiny
they hav
as a fundamental right and its implications. The article concludes with a
summary of the analysis of the constitutionality of the newer laws and
outlines the various legal challenges pending resolution.

THE OLDER ANTI-CONVERSION LAWS AND THE

DECISION IN STAINISLAUS

A. THE OLDER ANTI-CONVERSION LAWS AND THE FIRST LEGAL

CHALLENGES

In the late 1960s, the states of Madhya Pradesh and Orissa enacted anti-
conversion legislations, again directed at religious preachers, that were
8
Freedom of Religion nomenclature that continues

6 A detailed discussion took place in the Constituent Assembly on the role of the word
propagate
proposed by the Members in relation to this were negated by the Assembly. See 7
CONSTITUENT ASSEMB. DEB. (Dec. 6, 1948), [Link]
titution_assembly_debates/volume/7/1948-12-06.
7 Fischer, supra note 3, at 14.
8 The Madhya Pradesh Freedom of Religion Act, 1968 was ostensibly the outcome of an

informal committee appointed by the s enquire into the activities

34
 EVALUATING NEW ANTI-CONVERSION LAWS

to the present day. For the purpose of this article, these two laws that
formed the basis for our present jurisprudence on religious conversion are
ref the earlier legislations 9 Both these laws sought
to ban religious conversions brought about by force, fraud, or
inducement/allurement.10

Being the first post-constitutional exercises in this direction, the Madhya

Pradesh and Orissa laws were challenged by (Christian) preachers, first at
their respective High Courts and then in the Supreme Court, as violating
their right to propagate their religion under Article 25 of the Constitution.
The petitioners in these cases also challenged the legislative competence of
the state legislatures to make these laws.11 The Madhya Pradesh High Court
upheld the Madhya Pradesh Freedom of Religion Act, 1968,12 while the
Orissa Freedom of Religion Act, 1968 was struck down by the Orissa High
Court.13 A summary of the key provisions under challenge is given in Table
1 below.

Table 1: Provisions of the older laws challenged in Stainislaus

Act/Provisions What is prohibited? Penalty for violation

Orissa Freedom of Conversion of

Religion Act, 1967 another person by the imprisonment and a
use of force or by fine of up to five
inducement or by any thousand rupees
fraudulent means

of the Christian Missionaries in Madhya Pradesh See

Jenkins, supra note 5, at 114 15.
9 Strictly speaking, there is a third law the Arunachal Pradesh Freedom of Religion Act,
1978, but it is defunct since rules for its implementation were never framed.
10 The Madhya Pradesh Freedom of Religion Act, 1968, § 3, No. 27, Acts of Madhya

Pradesh State Legislature, 1968; The Orissa Freedom of Religion Act, 1967, § 3, No. 2,
Acts of Orissa State Legislature, 1968.
11 Rev. Stainislaus v. State of M.P., (1977) 1 SCC 677, ¶ 21.
12 Rev. Stainislaus v. State of M.P., 1974 SCC OnLine MP 16, ¶ 33.
13 Yulitha Hyde v. State of Orissa, 1972 SCC OnLine Ori 58, ¶ 45.

35
 CALJ 6(2)

Madhya Pradesh Conversion of

Freedom of another person by the imprisonment and a
Religion Act, 1968 use of force or by fine of up to five
allurement, or by any thousand rupees
fraudulent means

B. THE SUPREME COURT S DECISION IN STAINISLAUS

On appeal, a Constitution Bench of the Supreme Court, in a very brief

judgment in 1977,14 upheld them as being valid exercises of legislative
power under the public order exception to Article 25 of the Constitution,
d not include the right
to convert others and that forcible conversions could raise communal
passions giving rise to a breach of the public order.15

There were two main issues (the same as those raised before the High
Courts) before the Constitution Bench. The first was regarding the
legislative competence of the state legislatures. The second was in terms of
the laws being an encroachment into Article 25 of the Constitution. On
public order
16
the validity of the laws.

C. TWO CRITIQUES OF STAINISLAUS

Public Order

Stainislaus is a very brief judgment it runs into no more than five pages in

cryptic. The only direct connection that the Court makes between religious
conversion and public order is in a single paragraph at the end:17

Thus if an attempt is made to raise communal passions, e.g. on the ground that
someone has been ''forcibly" converted to another religion, it would, in all

14 Rev. Stainislaus v. State of M.P., (1977) 1 SCC 677, ¶ 25.

15 Id. ¶ 21.
16 Id. ¶ 24.
17 Id. ¶ 25.

36
 EVALUATING NEW ANTI-CONVERSION LAWS

probability, give rise to an apprehension of a breach of the public order, affecting

the community at large. The impugned Acts therefore fall within the purview of
the Entry I of List II of the Seventh Schedule as they are meant to avoid
disturbances to the public order by prohibiting conversion from one religion to
another in a manner reprehensible to the conscience of the community.
(emphasis supplied)

With respect, it is submitted that the reasoning of the Constitution Bench

is extremely shallow. The Court did not advert to two prior Constitution
Bench decisions on public order that were binding on it: Ram Manohar
Lohia18 and Madhu Limaye,19 concentric circles
comprising, in decreasing order of severity: security of the state, public
order, and law and order. By this jurisprudence, which has remained intact
law and order
public order
or the public at large. In the context of fundamental rights, this has been
subsequently interpreted to mean that there has to be a necessary and
proximate connection between the (disruption to) public order and the
restriction imposed on a right.20

The singular connection to public order analysed in Stainislaus is only

co attempt to raise communal passions on the ground that someone
has been forcibly converted to another religion 21 On this basis alone, the Court
upheld the restrictions on persons seeking to carry out religious
conversion and not persons attempting to raise communal passions. In free speech
jurisprudence, this is termed the where the State imposes

violence by third parties.22 In other words, where certain miscreants

threaten to violate public order on the ground of objections to someone

18 Supdt., Central Prison v. Dr. Ram Manohar Lohia, (1960) 2 SCR 821, ¶ 9.
19 Madhu Limaye v. Sub-Divisional Magistrate, (1970) 3 SCC 746, ¶ 14.
20 For a recent summary of the position, see Banka Sheela Sneha v. State of Telangana,

(2021) 9 SCC 415.

21 Rev. Stainislaus v. State of M.P., (1977) 1 SCC 677, ¶ 24.
22 see GAUTAM
BHATIA, OFFEND, SHOCK, OR DISTURB: FREE SPEECH UNDER THE INDIAN
CONSTITUTION 32 34 (Oxford University Press 2016).

37
 CALJ 6(2)

the miscreants.23 This then produces a chilling effect on speech because

people will be hesitant to speak due to the threats of violence and
24

With ordinary speech, the right under Article 19(1)(a) is violated. With
religious speech, such as proselytization, there is an additional violation of

affected. As the eminent jurist HM Seervai pointed out: 25

To propagate religion is not to impart knowledge and to spread it more widely,

but to produce intellectual and moral conviction leading to action, namely, the
adoption of that religion. Successful propagation of religion would result in
conversion.
(emphasis supplied)

Unfortunately, the nuance of this position was not explored by the

Supreme Court in Stainislaus. After a survey of biological and dictionary
26
propagate

exposition of its

religion, and that, in turn, postulates that there is not fundamental right to convert
-takes
the conversion of another person to his religion, as distinguished from his effort to
transmit or spread the tenets of his religion
of con
(emphasis supplied)

another
person
arisen in the context of newer anti-conversion laws that also penalise
individuals wishing to change their religion. This will be dealt with in more

23 Id. at 150 152.

24 Id.
25 H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA: A CRITICAL COMMENTARY 1287

(Universal Law Publishing 4th ed. 1991).

26 Rev. Stainislaus v. State of M.P., (1977) 1 SCC 677, ¶ 20.

38
 EVALUATING NEW ANTI-CONVERSION LAWS

detail in the succeeding section, explaining the actors in religious

e close connection
and conversion of another person to

the ultimate objective of the former and the two are inextricably linked.

Vagueness

In its overall upholding of the laws based on public order, to satisfy both
the requirements of legislative competence and Article 25 of the

clauses. This exercise had, however, been carried out by the Orissa High
force fraud misrepresentation
inducement
to be permissible restrictions under Article 25 of the Constitution.27
However, in relation to inducement, it found:28

We shall now deal with the argument regarding the definition of 'inducement'.
The attack is mainly on the ground that it is too widely stated and even invoking
the blessings of the Lord or to say that 'by His grace your soul shall be elevated'
may come within the mischief of the term. We are of the view that the
definition is capable of covering some of the methods of proselytising and though
the concept of inducement can be a matter referable to 'morality', the wide
definition is indeed open to reasonable objection on the ground that it surpasses
the field of morality.
(emphasis supplied)

Accordingly, it found that the definition of inducement in the statute was

liable to be struck down for vagueness. The Supreme Court did not engage
with this point at all while setting aside the High Court judgment leaving
the question very much open for consideration by future courts, especially
forcible conversion
in newer laws as discussed in the next section.

27 Yulitha Hyde v. State of Orissa, 1972 SCC OnLine Ori 58, ¶ 25.
28 Id. ¶ 25.

39
 CALJ 6(2)

THE NEWER ANTI-CONVERSION LAWS AND THE DEEPER

INTRUSIONS INTO INDIVIDUAL LIBERTY

A. UNDERSTANDING THE ACTORS IN RELIGIOUS CONVERSION

In order to properly understand the difference between the older and

newer legislations, it is essential to understand the actors involved in
religious conversion. Proselytising religions generally have individuals, such
as preachers or clergy, who spread the message of their religion among the
public and, if successful, perform the necessary rituals to admit new
people into their faith. These constitute the first set of actors and, like Rev.
Stainislaus, were involved in the challenges to the earlier laws. The second
set of actors are the individuals who seek to change their religion, with or
without the involvement of a preacher, who were not involved in the
Stainislaus decision at all. Indeed, the Supreme Court did not at all go into
the impact of these legislations on the individual, focusing only on the
limited question in relation to preachers.29 That impact, in turn, is closely
linked to the development of the jurisprudence on privacy, which is dealt
with subsequently.

B. THE NEW ANTI-CONVERSION LAWS AND THEIR PROBLEMATICS

With this background, we now proceed to analyse the next set of anti-
convers the newer laws
These laws go beyond the mere prohibition of forced religious conversion
by preachers (which was upheld in Stainislaus), now requiring individuals
desirous of changing their religion, in addition to people facilitating the
conversion, to provide prior notice to or take permission from the District
Magistrate under fear of penal consequences. In addition, they also expand
forced conversion efinition for
reconversion forced conversion

29 The third set of actors, in some sense, comprise the bevvy of religious extremists who
strongly oppose religious conversion to the point of indulging in violence, and in particular
view the potential (mass) conversions of socio-economically backward communities,
especially the Scheduled Castes and Scheduled Tribes, as a threat to Hindu society. Their
argument is similar to the one rejected by the Constituent Assembly (7 CONSTITUENT
ASSEMB. DEB. (Dec. 6, 1948), [Link]
bly_debates/volume/7/1948-12-06.), but as subsequently discussed in Section B, has
been given increasing credence in newer anti-conversion laws.

40
 EVALUATING NEW ANTI-CONVERSION LAWS

permit persons other than the individual converted to initiate criminal

proceedings. A summary of these additional provisions introduced by the
newer laws is presented in Table 2.

Table 2: Provisions introduced by the newer laws

Act/ Notice/ Penalty for Burden Who besides

Provisions intimation by not complying of proof the victim
the convert can initiate
proceedings?

Chhattisgarh Intimation to Up to one

Freedom of the district
Religion Act, magistrate imprisonment
1968 (as within 30 and a fine of
amended in days after the up to ten
2006) ceremony. thousand
rupees
Gujarat Intimation to Up to one Reverse
Freedom of the district onus parents,
Religion Act, magistrate imprisonment clause brother,
2003 (as within 10 and a fine of on the sister or any
amended in days after the up to one accused other person
2021) ceremony. thousand related by
rupees blood,
marriage or
adoption
Himachal Notice to the Fine of up to
Pradesh district one thousand
Freedom of magistrate 30 rupees
Religion Act, days in
2006 advance.
(repealed in
2019)

41
 CALJ 6(2)

Jharkhand Prior Up to one Reverse

Dharm permission is onus parents,
Swatantra required imprisonment clause brother,
Act, 2017 from the and a fine of on the sister or any
district up to five accused other person
magistrate. thousand aggrieved.
rupees
Uttarakhand Prior Imprisonment
Freedom of permission is of six months
Religion Act, required to two years
2018 from the and fine
district
magistrate.
Himachal Reverse
Pradesh onus parents or
Freedom of clause siblings, and
Religion Act, on the with the
2019 accused
permission,
any other
person who
is related by
blood,
marriage or
adoption,
guardianship
or
custodianshi
p

The most significant change in the newer laws is the additional requirement
for individuals to give notice to (or take permission from) the state before
changing their religion (see Column 2 of Table 2). This opens up a new
constitutional infirmity and ground for a challenge unlike Stainislaus,
which was restricted to propagation, it strikes at the right to profess religion
under Article 25 of the Constitution. This, it is submitted, really forms the
core of religious freedom under Part III freedom of conscience for

42
 EVALUATING NEW ANTI-CONVERSION LAWS

unless one can profess any religion without fear of penalty, there is no scope
for exercising any of the other rights under Article 25 of the Constitution.

C. THE LEGAL CHALLENGE THUS FAR: THE DECISION IN

EVANGELICAL FELLOWSHIP

The only one of the newer laws that has been subject to the final judicial
determination is the Himachal Pradesh Freedom of Religion Act, 2006
2006 Act 30 which was challenged before the Himachal Pradesh High
Court in 2011. In its judgment in 2012, the High Court, bound by
Stainislaus, declined to go into the validity of provisions that were in pari
materia with the older laws. However, by drawing on privacy jurisprudence
from the Supreme Court, it found that the prior notice requirement
imposed under Section 4 of the 2006 Act violated both the freedom of
conscience and the right to privacy of the individual.31 In doing so, it
rejected the argument of public order advanced by the state, holding that
public disclosure of conversion could, in fact, cause public order issues and
be counterproductive:32

s
no right to ask a person to disclose what is his personal belief. The only
justification given is that public order requires that notice be given. We are of the
considered view that in case of a person changing his religion and notice being
issued to the so called prejudicially affected parties, chances of the convertee [sic]
being subjected to physical and psychological torture cannot be ruled out. The
remedy proposed by the State may prove to be more harmful than the problem.
s issued, then the unwarranted disclosure of the
voluntary change of belief by an adult may lead to communal clashes and may
even endanger the life or limb of the convertee.

justified in order to fit within the exception to Article 25 of the

Constitution:33

30 Himachal Pradesh Freedom of Religion Act, 2006, No. 5, Acts of Himachal Pradesh
State Legislature, 2007.
31 Evangelical Fellowship of India v. State of H.P., 2012 SCC OnLine HP 5554, ¶ 41.
32 Id. ¶¶ 41 42.
33 Id. ¶¶ 37 38.

43
 CALJ 6(2)

A person not only has a right of conscience, the right of belief, the right to change

material before it to show what are the very compelling reasons which will justify

is the impregnable fortress in which he thinks and there can be no invasion of his
right of thought unless the person is expressing or propagating his thoughts in
such a manner that it will cause public disorder or affect the unity or sovereignty
of the country.

Gobind judgment on privacy and state

surveillance of the individual,34 it held that in order to infringe on the

interest and adopt the most restrictive means to achieve it.35 In this case, it
found that even assuming the interest of the state in protecting public order
was legitimate, the means adopted did not achieve the interest at all, let
alone in the most restrictive manner.36

The 2006 Act also contained a proviso (to Section 4) carving out an
exception from its penal reverts back to his
original religion
original religion
there was no reason for treating these two classes of conversion
separately).37 It thus struck down the entirety of Section 4 and the Rules
framed thereunder. In sum, neither of the post-Stainislaus additions a
reconversions
could withstand constitutional scrutiny in this case. The implications of the
Evangelical Fellowship are strengthened by

which are discussed in the following section.

34 Gobind v. State of M.P., AIR 1975 SC 1378, ¶ 22.

35 Evangelical Fellowship of India v. State of H.P., 2012 SCC OnLine HP 5554, ¶ 32.
36 Id. ¶¶ 32 34.
37 Id. ¶ 47.

44
 EVALUATING NEW ANTI-CONVERSION LAWS

THE DEVELOPMENT OF THE RIGHT TO PRIVACY AND ITS

IMPLICATIONS FOR RELIGIOUS FREEDOM

A. A BRIEF HISTORY OF PRIVACY JURISPRUDENCE IN INDIA

The right to privacy in Indian jurisprudence had not fully developed at the
in Stainislaus. Consequently, it did not
appear to be raised as a ground at the time, either before the High Courts
or the Supreme Court. Moreover, as discussed earlier, the litigation leading
up to Stainislaus had focused on only one set of actors involved in
conversion i.e., from the perspective of the preacher. The right of an
individual to change their religion was not an issue at the time but, as

requirement for an individual to give prior notice or take permission before

changing their religion. An argument against these requirements would rely
heavily on the right to privacy similar to what was upheld by the High
Court in Evangelical Fellowship.

The right to privacy in India had been considered in various judgments

MP Sharma.38 However,
very few of these explicitly engaged with the issue and none in detail. In
Evangelical Fellowship, as discussed earlier, the High Court accepted the

decision in Gobind, which was one of the few judgments to explicitly engage
with privacy. Since then, the jurisprudence on privacy has advanced
substantially by virtue of the Supreme C -judge bench Puttaswamy
39
judgment in 2017.
freedom of religion is therefore in order, as it is being relied on by a number
of petitioners who have challenged the newer laws in different courts.

B. INDIVIDUAL RELIGIOUS FREEDOM AS AN ELEMENT OF THE

RIGHT TO PRIVACY

The decision in Puttaswamy was unanimous in its recognition of a right to

privacy inherent in the Indian Constitution. Six opinions were delivered,

38 M. P. Sharma v. Satish Chandra, 1954 AIR 300; Kharak Singh v. State of U.P., 1963
AIR 1295; Gobind v. State of Madhya Pradesh, 1975 AIR 1378.
39 Justice (Retd.) K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

45
 CALJ 6(2)

concurring with each other on important aspects. One of these, perhaps

the most critical to religious freedom was the right to individual
decisional autonomy, articulated as an integral aspect of privacy in all the
opinions.40 In the judgment, decisional autonomy, or the freedom to make
decisions for oneself, was articulated as an integral aspect of individual
perhaps the central concern of any system of limited government 41 This
freedom to make choices was held to be vital to the exercise of liberty:42

t to privacy is to choose and specify on two levels. It is to

choose which of the various activities that are taken in by the general residue of
liberty available to her she would like to perform, and to specify whom to include

- whether they are one's co-participants or

- as well as to society at large, to claim and exercise the
right.

Furthering both of the above articulations, a plurality of judges also

recognised privacy as being essential to the dignity of the individual, with
decisional autonomy being central to this:43

Privacy safeguards individual autonomy and recognises the ability of the

individual to control vital aspects of his or her life. Personal choices governing a
way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises
the plurality and diversity of our culture.

dignity-liberty-autonomy triangle
is also central to its exposition of privacy not inhering in any particular
Article within Part III of the Constitution but rather permeating all of
them.44 basic,

40 John Sebastian & Aparajito Sen, Unravelling the Role of Autonomy and Consent in Privacy, 9
INDIAN J. CONST. L. 1 (2020).
41 Justice (Retd.) K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, ¶ 355 (per Nariman,

J.).
42 Id. ¶ 279 (per Bobde, J.).
43 Id. ¶ 188 (per Chandrachud, J.).
44 Sebastian & Sen, supra note 40, at 3 5.

46
 EVALUATING NEW ANTI-CONVERSION LAWS

irreducible condition the inarticulate major premise

exercise of the freedoms guaranteed in Part III of the Constitution.45

In this context, privacy becomes a natural element of Article 25 of the

Constitution, especially in relation to the freedom of conscience and the

opinions deal with this aspect, but the essence of the point is most
succinctly articulated by the plurality, which states right to freedom
of religion under Article 25 has implicit within it the ability to choose a faith and the
freedom to express or not express those choices to the world 46

C. RESTRICTIONS ON PRIVACY AND PROCEDURAL STANDARDS

THEREFORE

While the nine judges in Puttaswamy were fairly clear and unanimous in their
articulation of privacy as a substantive right, they were neither unanimous
nor clear in relation to the procedural aspects of the right viz, the
situations in which it could be restricted and the standard to be satisfied by
the State for any such infringement.47

The first of these is hardly moot in respect of Article 25 of the Constitution,

as the grounds of restriction are provided in the Article itself: public order,
morality and health. And since the decision in Stainislaus upheld the
legislative competence of the states to enact anti-conversion laws on the
ground of public order, it is that ground that principally forms the basis of
these laws, both old and new. As a critique of this ground has been
attempted earlier in this article, we will for now focus on the second aspect:
the standard of scrutiny that the State must satisfy.

As noted earlier, the High Court in Evangelical Fellowship adopted a strict

scrutiny standard, relying upon the decision of the Supreme Court in
Gobind. However, Puttaswamy did not adopt the strict scrutiny standard it

45 Justice (Retd.) K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, ¶ 261 (per Bobde,
J.).
46 Id. ¶ 188 (per Chandrachud, J.).
47 See Maryam Kamil, Puttaswamy: Jury Still Out on Some Privacy Concerns?, 1(2) INDIAN L.

REV. 190 (2017).

47
 CALJ 6(2)

is adverted to in only one opinion and that too for limited cases. 48 Other
opinions range between the standard prescribed under individual Articles
of Part III (Article 25 has none). However, a majority of judges adopted
proportionality
49
to privacy. While proportionality as a standard itself has been an evolving
act in Indian constitutional law,50
it has been subject to critique by scholars,51 the test as it stands is derived
from a prior (to Puttaswamy) Constitution Bench decision in Modern Dental
College.52 As recapitulated in Puttaswamy, this comprises four strands:53

(i) The action must be sanctioned by law;

(ii) The proposed action must be necessary in a democratic society for a legitimate
aim;

(iii) The extent of such interference must be proportionate to the need for such
interference;

(iv) There must be procedural guarantees against abuse of such interference.

Following this discussion, we now proceed to venture into an analysis of

the constitutionality of the remaining provisions of the newer laws in the
final section of this paper.

48 Justice (Retd.) K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, ¶ 236 (per
Chelameswar, J.).
49 These are the plurality opinion of Chandrachud, J. (¶ 188) and the opinion of Kaul, J.

(¶ 490), together comprising five of the nine judges on the Bench.

50 See Vikram Aditya Narayan & Jahnavi Sindhu, A Historical Argument for Proportionality

under the Indian Constitution, 2(1) INDIAN L. REV. 51 (2018); MARK TUSHNET, ADVANCED
INTRODUCTION TO COMPARATIVE CONSTITUTIONAL LAW (2d ed. Edward Elgar 2018).
51 See Aparna Chandra, Proportionality in India: A Bridge to Nowhere?, 3(2) U. OXFORD HUM.

RTS. HUB J. 55 (2020); Shruti Bedi, Proportionality and Burden of Proof: Constitutional Review in
India, 10 INDIAN J. CONST. L. (2021).
52 Modern Dental College v. State of Madhya Pradesh, (2016) 7 SCC 353.
53 Justice (Retd.) K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, ¶ 490 (per Kaul, J.)

The plurality opinion authored by Chandrachud, J. only adverts to the first three, but also
an invasion of privacy must be justified on the basis of a law
which stipulates a procedure which is fair, just and reasonable
Puttaswamy cited the decision in Modern Dental College.

48
 EVALUATING NEW ANTI-CONVERSION LAWS

ANALYSING THE CONSTITUTIONALITY OF THE NEWER

LAWS

To recapitulate, the newer anti-conversion laws have four main features

(see Table 2): (i) a requirement for an individual to give prior notice or take
permission from the state to change religion; (ii) expanding the definition
forced conversion reconversion
forced conversion
permitting persons other than the individual converted to initiate criminal
proceedings. These are now dealt with in turn.

A. THE PRIOR NOTICE/PERMISSION REQUIREMENT

The prior notice/permission requirement was struck down in Evangelical

Fellowship, following the strict scrutiny standard, for want of compelling
state interest and not using the least restrictive means to achieve it.54 In
light of Puttaswamy, the standard to be applied is now one of
proportionality, but it is submitted that this should not change the
even at its lowest level of
scrutiny, proportionality requires the court to determine that the measure was legitimate,
suitable, necessary and balanced. 55

Applying this to the provisions of the newer laws, it is clear that the prior
notice/permission requirement for changin
latter three prongs of the proportionality test: there is no justification as to
why prior notice (in addition to the criminal penalty) is necessary to prevent
forced conversions; the requirement, as Evangelical Fellowship has shown, is
disproportionate and in fact, could prove counterproductive to the purpose
of maintaining public order; and there is no procedural safeguard to the
contrary, many of the newer laws contain reverse onus clauses. One of the
newer laws (Uttar Pradesh) has a requirement to make a public declaration
after conversion, which is an even more egregious violation of the right to

54 Evangelical Fellowship of India v. State of H.P., 2012 SCC OnLine HP 5554, ¶ 47.
55 Chandra, supra note 51, at 61.

49
 CALJ 6(2)

privacy than prior notice and will fail the proportionality standard for the
same reasons.56

B. THE EXPANSION OF THE DEFINITION OF FORCED

CONVERSION AND THE RECONVERSION EXCEPTION

forced conversion
was never quite examined by the Supreme Court in Stainislaus, even though
it was scrutinised by the Orissa High Court in prior proceedings, and parts
of it were found suspect for vagueness.57 The question, it is submitted, is
thus still open, especially with respect to the newer laws, which have
widened the definition beyond the scope of even the older laws that were
challenged in Stainislaus reconversion
reasons illustrated in Evangelical Fellowship, arbitrary and egregious violations
of Article 14 because there is no justifiable reason for treating two sets of
converts differently based on the religion they converted to.58

C. RENDERING MARRIAGES BASED ON ORCED CONVERSION

VOIDABLE

A number of the newer laws have similarly (poorly) worded provisions

59
marriage done for sole purpose of unlawful conversion Such
restrictions on marriage by inter-religious couples, it is submitted, are in the
teeth of two Supreme Court decisions that uphold individual autonomy in
matters of marital choice. In Lata Singh,60 the Supreme Court quashed
criminal proceedings initiated against an inter-caste couple by their relatives
who disapproved of the marriage. It also noted that violence against inter-
caste and inter-religious couples was a violation of their fundamental right

56 UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020, § 8 (Nov. 24,

2020).
57 Yulitha Hyde v. State of Orissa, 1972 SCC OnLine Ori 58, ¶ 25.
58 Evangelical Fellowship of India v. State of H.P., 2012 SCC OnLine HP 5554, ¶ 41.
59 UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020, § 6 (Nov. 24,

2020); Madhya Pradesh Freedom of Religion Bill, 2021, Bill No. 1 of 2021, § 6 (Feb. 11,
2021); Uttarakhand Freedom of Religion Act, 2018, § 6, No. 28, Acts of Uttarakhand State
Legislature, 2018; Haryana Prevention of Unlawful Conversion of Religion Bill, 2022, § 5,
Bill No. 1 of 2022 (Feb. 26, 2022).
60 Lata Singh v. State of UP, (2006) 5 SCC 475, ¶ 16.

50
 EVALUATING NEW ANTI-CONVERSION LAWS

of marital choice and held that the State was under an obligation to protect
the choices of these individuals:61

This is a free and democratic country, and once a person becomes a major he or

administration/police authorities throughout the country will see to it that if any

boy or girl who is a major undergoes inter-caste or inter-religious marriage with a
woman or man who is a major, the couple are not harassed by any one nor
subjected to threats or acts of violence, and anyone who gives such threats or
harasses or commits acts of violence either himself or at his instigation, is taken
to task by instituting criminal proceedings by the police against such persons and
further stern action is taken against such persons as provided by law.

In Shafin Jahan,62 another case involving an inter-religious couple, one of

whom co

individual liberty that was constitutionally protected:63

It is obligatory to state here that expression of choice in accord with law is

existence. To have the freedom of faith is essential to his/her autonomy; and it

strengthens the core norms of the Constitution. Choosing a faith is the substratum
of individuality and sans it, the right of choice becomes a shadow.
(emphasis supplied)

Drawing on Puttaswamy, the Court also extended this logic to the

s right to choose an intimate partner, holding that the
each individual will have a protected
entitlement in determining a choice of partner to share intimacies within or outside
marriage 64

Consequently, with both

partner constitutionally protected, it follows that restrictions placed on

61 Id. ¶ 16.
62 Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368.
63 Id. ¶ 53 (per Misra, J.).
64 Id. ¶ 22 (per Chandrachud, J.).

51
 CALJ 6(2)

marriages by the new laws will have to be read narrowly and subject to the
exception in Sarla Mudgal,65 where the Supreme Court held that conversion
solely for the purpose of subjecting oneself to Muslim personal law and
contracting a bigamous marriage would be void.66

D. INITIATION OF CRIMINAL PROCEEDINGS BY PERSONS OTHER

THAN THE CONVERT

The most insidiously problematic provisions in the new laws are those
which permit the registration of an FIR regarding the alleged offence, not
victim
siblings or any other relative, even if the victim is a major (see Column 5 of
Table 2). This, it is submitted, is a body blow to personal autonomy and is
being used particularly to strip young women of their autonomy to decide
both their religion and choice of partner.67 As discussed earlier, this
decisional autonomy is a core element of the right to privacy, as articulated
in Puttaswamy and reiterated in Shafin Jahan. The test of proportionality
articulated in the former judgment would extend to both substantive and
procedural provisions that have the effect of infringing upon individual
provisions. In this respect, it is submitted that the provisions of the newer
laws permitting third parties to initiate criminal proceedings without the
consent of the individual convert are wholly disproportionate.

In conventional criminal jurisprudence, all crimes are considered to be

committed against the State, which gives any member of the public the
right, and sometimes the duty to report an offence. But a forced conversion
is more than just a simple criminal offence it is also a violation of a
fundamental right to make an intimate personal decision and can thus only
be claimed by the victim. Putting it another way, if the victim, in this case,
has decisional autonomy, then an essential aspect of this autonomy is that

65 Sarla Mudgal v. Union of India, (1995) 3 SCC 635, ¶ 31.

66The judgment in Sarla Mudgal, it should be clarified, was in response to a Public Interest
Litigation seeking protection for women from unscrupulous Hindu men who converted
to Islam to attempt contracting a second marriage without legally dissolving their first
marriage (since bigamy, under Indian law, is prohibited in Hinduism but not Islam). It
does not lay down a general bar against conversion for marriage in other circumstances.
67 See Saumya Uma & Niti Saxena,

Wrongs of Anti-conversion Law(s), 56(1) ECON. & POL. WKLY. 15 (2021); Jenkins, supra note
5, at 123 24.

52
 EVALUATING NEW ANTI-CONVERSION LAWS

she alone can decide if and when it has been violated. To substitute her

submitted, amount to a further violation of her privacy. The only necessary

and proportionate manner of solving this would be to permit the victim to
report the violation herself and take assistance from others if she feels the
need to (which is anyway allowed under ordinary criminal procedure).
Thus, empowering third parties to make this decision on an adult convert
behalf, without her consent, takes away her decisional autonomy an
unnecessary, disproportionate action.

ONGOING LEGAL CHALLENGES

There has been no High Court decision after Evangelical Fellowship, which
remains to date the only decision on the validity of the newer anti-
conversion laws. However, the Gujarat High Court, in 2020, passed an
interim order staying various provisions of the Gujarat Freedom of
Religion Act, 2003, citing the decision in Shafin Jahan (although it did not
refer to the decision in Evangelical Fellowship).68 The decision in Shafin Jahan
was also invoked by the Allahabad High Court in its interim orders while
hearing challenges to the invocation of a similar law in Uttar Pradesh. 69 A
legal challenge at the Supreme Court to the law in Uttarakhand, where no
interim order has been obtained, remains pending.70 In Himachal Pradesh,
the Legislative Assembly replaced the 2006 Act with a new one in 2019,
which reinstated many of the provisions that were struck down by the High
Court in Evangelical Fellowship. In Rajasthan, which has no anti-conversion
guidelines
highly suspect.71 In recent months, the Legislative Assemblies of Haryana

68 Mujahid Nafees v. State of Gujarat, Special Civil Application 10305/2021, order dated
19.08.2021 (Gujarat High Court).
69 See Sarita Santoshini, , ARTICLE-
14 (Jan. 18, 2021), [Link]
for-india-s-interfaith-couples; LiveLaw News Network, Upholding Love: In Last One Month,
Allahabad High Court Grants Protection To Over 125 Inter-Faith/Caste Couples, LIVELAW (Dec.
1, 2020), [Link]
over-125-inter-faithcaste-couples-166645.
70 Vishal Thakre v. Union of India, Writ Petition (Criminal) 405/2020.
71 Chirag Sinhgvi v. State of Rajasthan, 2018 (3) RLW 2270 (Raj.).

53
 CALJ 6(2)

and Karnataka have also passed similar laws,72 which may also be subject
to legal challenges in the future.

THE WAY FORWARD

As the preceding discussion has illustrated, all of the newer anti-conversion

s
religion is an act of constitutionally protected decision making, and
consequently a limited number of restrictions can be placed on it on the
specific grounds provided in Article 25 of the Constitution. If conversions
present a problem to public order, the remedy must focus on the group
creating public disorder rather than the individual doing the conversion.
force
consent that creates a necessity for intervention. Such interventions must,
however, be achieved through a proportionate remedy, which is only
possible when legal recourse is made available to the victim without
overbroad substantive or procedural provisions that further infringe the
rights of the victim or other parties.

Ironically, the concerns expressed by Tajamul Hussain in the Constituent

Assembly, quoted at the beginning of this article, are now manifesting in
the reverse direction through the new anti-conversion laws. Rather than
a private matter between oneself and his God
seek to bring it out into the open and subject it to the scrutiny of not just

upheld in Stainislaus, perhaps mark the furthest limit to which an

infringement is permitted into the right of propagation under Article 25 of
the Constitution. Anything beyond that as attempted by the newer
laws is an unconstitutional invasion into the private sphere, and the
decisions in Evangelical Fellowship, Puttaswamy, and Shafin Jahan have laid out
a clear path for subsequent courts to follow. For this reason, the interim
orders of the Gujarat and Allahabad High Courts are steps in the right
direction and must be taken to their logical conclusion.

72Haryana Prevention of Unlawful Conversion of Religion Bill, 2022, Bill No. 1 of 2022
(Feb. 26, 2022); The Karnataka Protection of Right to Freedom of Religion Bill, 2021, Bill
No. 50 of 2021 (Dec. 20, 2021).

54
 CALJ 6(2)

ENTRENCH THE RIGHTS OF THE OPPOSITION

MEENAKSHI RAMKUMAR1 & AISHWARYA SINGH2

The interests of various groups in a diverse parliamentary democracy are best represented
by a plurality of representatives in Parliament, who can broker compromises, extract
justifications and highlight the incompetence or apathy of the majority. Parliamentary
procedures must safeguard the rights of the opposition to question and exercise oversight
over the majority government in order to sustain genuine and substantial deliberation by
representatives. Various constitutions have designed legislative bodies in a distinct
manner. For instance, the Indian Constitution does not provide any express provision
institutionalising the opposition. In contrast, the South African Constitution not only
recognises the leader of the opposition as a constitutional functionary but also cements the
rights of minority parties to hold the government accountable through deliberation and
debate. This article examines parliamentary structures in India and South Africa,
focusing on the role of the opposition envisaged under both constitutions. The difference
in constitutional design has resulted in ensuring a more definitive system for enforcing the
rights of the opposition by the judiciary in South Africa. While the Indian judiciary has
developed tools to navigate the lack of constitutional safeguards for the opposition, these
may not serve as an effective solution in the absence of a framework for opposition rights.

INTRODUCTION

Opposition in a democratic House is a great necessity. It is an indispensable

condition of all democratic institutions. We propose to all ourselves, and we
propose to make our country, a democratic, sovereign republic . If we cannot
ensure any opposition, we should rather call the constitution that of an

* Cite it as: Ramkumar & Singh, to Entrench the Rights of

Opposition, 6(2) COMP. CONST. L. & ADMIN. L. J. 55 (2022).
1 Meenakshi Ramkumar is an LL.M. Candidate at the University of Melbourne and an

Alex Chernov Scholar. The author may be reached at <meenakshi@[Link]>.

2 Aishwarya Singh is a Law Clerk-cum-Research Assistant at the Supreme Court of India.

She holds a B.A., LL.B. (Hons.) degree from Jindal Global Law School. The author may
be reached at <singh46aishwarya@[Link]>.
** We thank the editorial team at CALJ for their inputs and editing this paper.
*** Views expressed are personal.

55
 THE RIGHTS OF THE OPPOSITION
undemocratic, sovereign republic . It is the essence of democracy that there should
be effective opposition.

- Naziruddin Ahmad, Member, Constituent Assembly3

On January 28, 2022, the Supreme Court of India, in Ashish Shelar v.

Maharashtra Legislative Assembly,4 revoked the suspension of twelve
members of the Legislative Assembly of Maharashtra. In doing so, the
Court employed the rights guaranteed under Articles 14 and 21 of the
Indian Constitution
State action to encapsulate parliamentary procedures within judicial review.
The Court held that the suspension of the members beyond the duration
of the concerned session was beyond the power of the Assembly5 and,
therefore, arbitrary and excessive. Therefore, the actions of the Assembly
were held to be violative of Articles 14 and 21 of the Indian Constitution.

Having previously followed a non-interventionist approach with regard to

the whimsical use of parliamentary sovereignty by majority parties in
legislative bodies, the Court deviated and upheld the core principles of

has not been formally recognised in the Indian Constitution as has been
done in other countries.6 Therefore, the Supreme Court, in the
aforementioned case, used the rights framework enshrined in Part III of
the Indian Constitution to hold the legislative body accountable.

This article seeks to analyse the constitutional design of parliamentary

structures in India and South Africa with particular emphasis on the role
of the opposition. In doing so, it will evaluate the impact of constitutional
engineering on enforcing the rights of minority parties in the Parliament.
3 3 CONSTITUENT ASSEMB. DEB. (May 20, 1949), [Link]
constitution_assembly_debates/volume/8/1949-05-20.
4 Ashish Shelar v. Maharashtra Legislative Assembly, 2021 SCC OnLine SC 3152.
5 Maharashtra Legislative Assembly Rules, 2015, Director, Government Printing and

Stationery and Publications, Rule 53 (Jan. 2015).

6 Recognition of Leader of Opposition: CONSTITUTION OF THE REPUBLIC OF

MAURITIUS, 1968 § 73; See also, THE CONSTITUTION OF BARBADOS, 1966 § 74;
Consultation of Opposition for Appointments: THE CONSTITUTION OF THE
DEMOCRATIC, SOCIALIST REPUBLIC OF SRI LANKA, 1978 art. 41A. See also, Elliot Bulmer,
Opposition and Legislative Minorities: Constitutional Roles, Rights and Recognition,
INTERNATIONAL IDEA 22 (2021).

56
 CALJ 6(2)

The article argues that the explicit recognition accorded to the opposition
and its rights in other jurisdictions has empowered the judiciary to play a
proactive role in protecting deliberation and debate in parliament. For this
purpose, we refer to South Africa. In contrast, courts in India have often
taken a backseat, deferring to parliamentary sovereignty and supremacy.
Based on the above analysis, this article concludes that the
institutionalisation of rights of the opposition in the Constitution is
necessary for providing a well-developed framework to enable minority
parties to function as effective opposition in Parliament. Any criteria of
review of the legislative process developed by the judiciary in the absence
of institutionalisation of such rights would result in arbitrary application of
the law by judges based on their personal dispositions and would augment
the power of constitutional courts rather than the opposition in the
Parliament itself.

A TALE OF TWO COUNTRIES

There are multiple reasons to compare the Indian and the South African
democracies apart from the apparent reason that the former lacks
constitutional recognition of the opposition while the latter does not. First,
the Indian and the South African societies are diverse and have inter-group
conflicts. These conflicts often play out in their respective parliaments
when interests clash, and therefore, deliberation and representation are
equally critical in both the societies.

Second, while both constitutions were designed in a post-colonial setting,

the context of the 1950 Indian Constitution and the 1996 South African
Constitution was starkly different. Consequently, the processes adopted in
drafting these constitutions were also different.7 The South African
Constitution was a result of constitutional negotiations and reconciliation
between the politically dominant white community and the disenfranchised
black community.8 Therefore, there was scope for deliberation and public
participation in the constitution-making process.

7 Vijayshri Sripati, Constitutionalism in India and South Africa: A Comparative Study from a
Human Rights Perspective, 16 TUL. J. INT L & COMP. L. 49 (2007).
8 Id.

57
 THE RIGHTS OF THE OPPOSITION
However, in the Indian context, a single party dominated the constitution-
making process.9 Arguably, these differences had an impact on the
constitutional design, which will be explored in the subsequent sections.

ROLE OF OPPOSITION IN A PARLIAMENTARY DEMOCRACY

The Westminster model of parliamentary democracy envisages a

concentration of executive and legislative leadership in the cabinet, which
comprises the ministers led by the Prime Minister.10 The Prime Minister is
also the leader of the majority party or the ruling coalition in the Lower
House of the Parliament. The cabinet is accountable to the Lower House
for its policies and conduct.11 criticism of administration as
12
much a part of the polity as administration itself However, since the majority
party or the bloc in the legislature forms the government, the government
is in effect accountable only to the opposition, which would be a minority
party or bloc in the Parliament. Legislators hardly act independently of their
party position. In fact, anti-defection laws in India penalise legislators who
disobey party command with disqualification from Parliament.13 Thus, it is
only the opposition that has the strongest incentive to censure the
government.

Jeremy Waldron highlights that the opposition has two functions. First, to
extract accountability from the government for its policies in parliament,
where they are debated and defended in an official adversarial
environment; and second government-in-waiting 14 This
requires that the opposition is not only able to criticise the government but
also present an alternative agenda of governance.15 While these are the two
classical functions of the opposition, the question remains how critical the

9 Id.
10 Bulmer, supra note 6.
11 Id.
12 WALTER BAGEHOT, THE ENGLISH CONSTITUTION 53 (2d ed. 1873).
13 See INDIA CONST. sch. 10, ¶ 2(b); where a member of the House belonging to a political

party can be disqualified if they vote or abstain from voting in the House contrary to the
direction issued by the political party to which they belong without obtaining prior consent
from the party in this regard.
14 JEREMY WALDRON, POLITICAL THEORY: ESSAYS ON INSTITUTIONS, 101-102 (Harvard

University Press 2016).

15 Id.

58
 CALJ 6(2)

institutionalised setting of parliament is, to conduct these functions. Arthur

Rubinoff has noted that with the decline of legislative participation in the
Indian Parliament, the media has become the primary site of contestation
over administrative policy.16 Resultantly, scandals, rather than substantive
issues have absorbed the focus of opposition.17 Commentators have also
poor laws and flawed
policies 18 However, with limited numerical strength, the o
impact on the deliberative process remains questionable.

Carl Schmitt, through a historical analysis of the role of the parliament, has
argued that the parliament has become an obsolete institution.19 Earlier, in
the absence of mass democracy, the parliament acted as a stand-in for the
society before the prince in a constitutional monarchy.20 It comprised the
bourgeoisie, who shared common ideas about the market, state and society
and envisaged a limited role of the state in the life of people. However,
with the advent of mass democracy, the state itself became representative
of the diverse social and economic groups that formed the society through
political parties. These diverse groups constitute the state and are also
objects of state action through an interventionist state or what he calls the
total state 21 The political parties which represent diverse interests are
stabilised and bureaucratised organisations. Thus, the individual members
function according to party discipline and not by the force of deliberations
showplace for pluralist
interests 22 However, Dominique Leydet, in his critique of Schmitt,
identifies the critical role of deliberations that take place in parliament. 23
He states debates do not have to be deliberative in nature to be worthwhile 24

16 Arthur G. Rubinoff, , 4 J. LEGIS. STUD. 13, 13-33 (1998).

17 Id.
18 THOMAS E MANN & NORMAN J ORNSTEIN, THE BROKEN BRANCH: HOW CONGRESS

IS FAILING AMERICA AND HOW TO GET IT BACK ON TRACK, 146 (1st ed. Oxford
University Press 2008).
19 CARL SCHMITT, THE CRISIS OF PARLIAMENTARY DEMOCRACY (Ellen Kennedy Trans.,

Cambridge MA: MIT Press 1985).

20 Dominique Leydet, Pluralism and the Crisis of Parliamentary Democracy, in LAW AS POLITICS:

CARL SCHMITT S CRITIQUE OF LIBERALISM 111 (Dyzenhaus ed., Duke University Press
1998).
21 Id. at 112.
22 Id. at 111.
23 Id. at 122 123.
24 Id.

59
 THE RIGHTS OF THE OPPOSITION
The debates allow a preliminary screening of the enactments, which enable
the public to identify how public monies are being spent and if the
government is implementing any unjust measures. The parliamentary
debates compel the government to provide justifications for its policies and
clarify their purpose.25

The public screening can generate substantial opposition, requiring the

government to reconsider its policies and laws. While policies and laws can
be questioned by media or interest groups, parliament provides what
official adversarial environment for democratic dialogue
polity where suppression of media is constant, and dissent threatens civil
liberty, parliament, with its constitutional standing and the accompanying
privileges and immunities that accrue to parliamentary speech,26 can play a
central role in oversight and scrutiny of the government.

THE OPPOSITION IN INDIA

A. THE STRUCTURE AND THE ABSENCE OF OPPOSITION RIGHTS

The Indian Parliament is a bicameral legislature, where the Lok Sabha (the
Lower House), currently consisting of 542 members,27 is elected through
universal adult suffrage every five years. The Rajya Sabha (the Upper
House), also known as the Council of States, is a continuous body currently
having 237 members,28 and is elected through an Electoral College. The
purpose of the Rajya Sabha is to represent the interests of states, apart from

25 Id.
26 For example, INDIA CONST. art. 105, cl. 1 specifically provides that there is freedom of
speech in Parliament. INDIA CONST. art. 105, cl. 2 provides immunity from court
proceedings regarding any speech or vote given by a parliamentarian. Significantly INDIA
CONST. art. 361A provides that no person will be subject to civil or criminal proceedings
for publication in a newspaper of a substantially true report of any parliamentary
proceedings.
27 Lok Sabha Secretariat, Seventeenth Lok Sabha, PARLIAMENT OF INDIA (LOK SABHA),

[Link] (Last visited on May

21, 2022).
28 Rajya Sabha Secretariat, Sitting Members of Rajya Sabha, PARLIAMENT OF INDIA (RAJYA

SABHA), [Link] (Last visited on

May 21, 2022).

60
 CALJ 6(2)

ensuring further scrutiny of legislation by adopting bicameralism.29

However, its constitutional standing and legislative powers are less as
compared to the Lok Sabha. In a joint sitting of the Parliament, if the Rajya
Sabha fails to adopt a bill passed by the Lok Sabha,30 it would be
outnumbered two to one by the numerical majority in the Lok Sabha.
Furthermore, the Rajya Sabha can neither introduce money bills nor reject
them.31 If a money bill remains pending for two weeks with the Rajya
Sabha, it is considered to have been passed.32 The classification of bills as
money bills has become a contentious issue, which will be discussed later.
Suffice to say, often, the dominant party in the Lok Sabha does not have a
guaranteed majority in the Rajya Sabha due to different election cycles of
the two houses, and the rise of regional parties that have begun to control
state governments.33 Thus, it becomes difficult for the dominant party in
the Lok Sabha to push through its agenda in the Rajya Sabha in the absence
of the support of the opposition.34

29 See 4 CONSTITUENT ASSEMB. DEB. (July 28, 1947), [Link]

et/constitution_assembly_debates/volume/4/1947-07-
21. The constituent assembly debated on the motion of whether there should be a second
chamber of Parliament. N. Gopalswami Ayyangar in ¶ 4.32.122, who introduced the
federations of importance
Naziruddin Ahmed in ¶ 4.32.119, while supporting the motion, observed that a second
chamber is necessary to give representation to States in the present scheme of things. The
motion of having two houses was adopted. See also, INDIA CONST. art. 80, cl. 1(b) which
provides that Rajya Sabha would consist of two hundred and thirty eight representatives
of states and union territories.
30 INDIA CONST. art. 108.
31 INDIA CONST. art. 109, cl. 1 -2.
32 INDIA CONST. art. 109, cl. 5.
33 The elections to Rajya Sabha take place when the members retire. A third of members

of Rajya Sabha retire every two years. The members for Rajya Sabha are elected indirectly
by elected members of State Legislative Assemblies of respective states. The ability of the
dominant party in Lok Sabha to hold a majority in Rajya Sabha is contingent on its

Legislative Assemblies who can elect the members of the Rajya Sabha. See also, INDIA
CONST. arts. 80 & 83; INDIA CONST. sch. 4.
34 Devesh Kapur & Pratap Bhanu Mehta, The Indian Parliament as an Institution of

Accountability, 23 UNRISD PROGRAMME PAPERS ON DEMOCRACY, GOVERNANCE

AND HUMAN RIGHTS (2006). See the example of the land acquisition bill that was
introduced by the government on Feb. 24, 2015 to amend the Land Acquisition,
Rehabilitation and Resettlement Act, 2013, No. 30, Acts of Parliament, 2013. While the
government had the majority in Lok Sabha where the bill was passed on Mar. 10, 2015,

61
 THE RIGHTS OF THE OPPOSITION
The
recognised as has been done in South Africa, which is used as a counter-
example to the Indian experience in the article later. However, it is
significant to note that the Constituent Assembly debated whether there
should be a constitutional recognition of the post of leader of the
opposition.35 Z.H. Lahiri had proposed an amendment to the draft Article
85 of the Indian Constitution (incorporated as Article 106), which provided
that a Member of Parliament is entitled to receive salaries and allowances
as determined by the Parliament.36 He suggested that the leader of the
opposition be provided with a salary that is equivalent to that of a cabinet
minister, similar to the practice in England.37 He argued that there could
not be a whole-time opposition that is active unless there is a leader who
can devote his time and energy to the post.38
constitutional recognition of the opposition would prevent the majority
party from becoming despotic.39 An active opposition would keep the
majority party in check and make people aware of the actions of the
government.40

We have also highlighted how deliberations in parliament result in a public

screening of the proposed policies and laws. Crucially, Lahiri noted the
symbolic effect of having a constitutional recognition of the post of leader
of the opposition. He stated that such a recognition ensures that when a
leader of opposition criticises the government, it will not be termed as
disaffection towards the state, but as a discharge of their constitutional
duty.41 This is significant because it advances the idea that institutionalising
dissent in the constitutional scheme can also normalise criticism against the
government in society. The proposed amendment was supported by Kazi

the bill was stuck in Rajya Sabha, where the government did not have a majority. The
government took the route of issuing an executive ordinance to implement the land
acquisition reforms, however, the bill was never passed by the Rajya Sabha, and the
ordinance eventually expired. The government failed to push its agenda through the Rajya
Sabha.
35 3 CONSTITUENT ASSEMB. DEB. (May 20, 1949), [Link]

constitution_assembly_debates/volume/8/1949-05-20.
36 Id. ¶ 8.88.5.
37 Id. ¶ 8.88.10.
38 Id. ¶ 8.88.7.
39 Id.
40 Id.
41 Id. ¶ 8.88.10.

62
 CALJ 6(2)

Syed Karimuddin.42 Interestingly, both highlighted that there was no

effective opposition in the Dominion Parliament or provincial assemblies
established during the colonial regime.43 In the words of Karimuddin, the
tolerated neglected generally punished 44 This
showcases that India has had a long-standing problem of having a weak
parliamentary opposition, which perhaps explains why institutionalising
opposition rights was not a priority for the Constituent Assembly, which
itself was dominated by a single party.

Naziruddin Ahmad, supporting the amendment, countered the arguments

made by other assembly members that pay does not create opposition, by
pay gives the opposition a status and it also recognises the opposition 45
The proposal was ultimately rejected, with some arguing that since the
Indian Constitution does not prohibit making a provision for payment of
salary to the leader of the opposition, it may be done in the future.46 It was
healthy opposition
willy-nilly ation of a post and
payment of salary.47

Today, there is only statutory recognition of the post of leader of

opposition under the Salary and Allowances of Leaders of Opposition in
Parliament Act, 1977. The Act defines a leader of the opposition as the
[l]eader in that House of the party in opposition to the Government having the greatest
numerical strength and recognised as such by the Chairman of the Council of States or
the Speaker of the House of the People, as the case may be 48 Crucially, the decision
to recognise the leader of the House vests with the Speaker. Although the
Act itself does not specify the numerical strength required for the

42 3 CONSTITUENT ASSEMB. DEB. (May 20, 1949), ¶ 8.88.40. [Link]

[Link]/constitution_assembly_debates/volume/8/1949-05-20.
43 Id. ¶¶ 8.88.9, 8.88.40.
44 Id. ¶ 8.88.40.
45 Id. ¶ 8.88.42.
46 Id. ¶¶ 8.88.23-8.88.25, ¶¶ 8.88.26-8.88.27. The Chairperson of the Drafting Committee,

BR Ambedkar did not accept the amendment made by Mr. Lahiri and supported the
stance taken by Shri T.T. Krishnamachari and M. Ananthasayanam Ayyangar (¶ 8.88.59).
47 Id. ¶ 8.88.27.
48 The Salary and Allowances of Leaders of Opposition in Parliament Act, 1977, § 2, No.

33, 1977.

63
 THE RIGHTS OF THE OPPOSITION
enced by Direction 121(c), which
provides that for a party to be recognised, it should have at least one-tenth
of the total members of the House, which is the strength of the quorum
required to conduct a session of the House.49 However, this is not a
constitutional or statutory requirement. These are merely directions issued
by the Speaker under Rule 389 of the Rules of Procedure and Conduct of
Business in the House of People.50 The purpose of these directions was to
allot seats, time for debates and rooms in the Parliament. Although the

of Opposition in Parliament Act 1977, perhaps due to the absence of any

constitutional sanctity attached to the post, India has not had a leader of
the opposition for two consecutive Lok Sabhas elected in 2014 and 2019.51
This closely echoes the argument put forth by Madhav Khosla that
codification of norms in new democracies has significant value because of
a lack of a shared historical understanding of the values of constitutional
self-rule.52

In addition to keeping the post of leader of opposition vacant, the

government has pushed many contentious bills through Rajya Sabha by
dubious voice votes.53 For instance, the farm laws were pushed through the
Rajya Sabha through voice votes,54 which led to wide-scale farmer agitation

49 Lok Sabha Secretariat, Directions by the Speaker of Lok Sabha, PARLIAMENT OF INDIA
(LOK SABHA) (Apr. 2019), [Link]
50 Rules of Procedure and Conduct of Business in Lok Sabha, 2019.
51 Prabhash K Dutta, Narendra Modi Government Will Not have Leader of Opposition in Lok

Sabha Again, INDIA TODAY (May 24, 2019), [Link]

sabha-2019/story/17th-lok-sabha-leader-of-opposition-bjp-congress-1533766-2019-05-
24.
52 MADHAV KHOSLA, INDIA S FOUNDING MOMENT: THE CONSTITUTION OF A MOST

SURPRISING DEMOCRACY, 23 -24 (Harvard University Press 2020).

53 In a voice vote, the Speaker puts a question to the house, to which the members have

successful based on which side was louder. However, this can produce inaccurate results,
especially on contentious issues where the House is divided. If a voice vote is challenged

vote to be recorded and is typically done electronically. See Rules of Procedure and
Conduct of Business in Rajya Sabha, 2016, R. 252 254 (Aug. 2016).
54 Sobhana K. Nair, Parliament Proceedings|Rajya Sabha Passes Two Farm Bills Amid Fierce

Protests, THE HINDU (Sept. 20, 2020), [Link]

ment-proceedings-rajya-sabha-passes-2-farm-bills-amid-ruckus-by-opposition-
mps/[Link].

64
 CALJ 6(2)

in India, forcing the government to repeal the laws, which was again done
without any deliberation in Parliament.55 It is startling to note that during
the 2021 monsoon session, on an average, the Lok Sabha passed a bill once
every thirty four minutes and the Rajya Sabha every forty six minutes.56 In
the winter session of the Lok Sabha, thirty five percent of the bills were
passed in thirty minutes, and only thirteen percent of the bills were referred
to parliamentary committees.57 The committees were intended to enable
the Parliament to discuss proposed legislation in small groups, scrutinise
budgets, involve experts, collect data and extract information from the
government.58 While political accountability is best ensured by questioning
the government on the floor of the House that captures the attention of all
members and the society,59 the declining role of the committees further
precipitates the issue of lack of oversight of the executive and the ruling
majority in the Parliament.

Not only are parliamentary deliberations side-lined, but opposition

members are also suspended arbitrarily without complying with internal
rules of the Parliament60 and through the questionable mechanism of voice
votes. In November 2021, twelve Rajya Sabha members from five
opposition parties were suspended for the entire winter session for
allegedly obstructing the functioning of Rajya Sabha in the previous
monsoon session. The motion to suspend the members was moved under
Rule 256 of the Rules of Procedure and Conduct of Business in the Council

55 Special Correspondent, , THE HINDU (Dec. 2, 2021),

[Link]
bill/[Link].
56 Manish Kanadje & Omir Kumar, Vital Stats: Parliament Functioning in Monsoon Session

2021, PRS LEGISLATIVE RESEARCH (Aug. 11, 2021), [Link]

nt/session_track/2021/vital_stats/Vital%20Stats_Monsoon%20Session%[Link].
57 Payoja Ahluwalia & Shashank Srivastava, Vital Stats: Parliament functioning in Winter

Session 2021, PRS LEGISLATIVE RESEARCH (Dec. 22, 2021), [Link]

arliament/session_track/2021/vital_stats/Winter_2021_Vital_Statistics.pdf
58 Arthur G. Rubinoff, , 4(4) J. LEGIS. STUD. 13, 13 33
(1998).
59 Anirudh Burman, Legal Framework for the Parliamentary Oversight of the Executive in India, 6

NUJS L. REV. 387 (2013).

60 Umang Poddar, Does the Shock Suspension of 12 Rajya Sabha MPs Violate the Rules of

Parliament, SCROLL (Dec. 4, 2021), [Link]

suspension-of-12-rajya-sabha-mps-violate-the-rules-of-parliament.

65
 THE RIGHTS OF THE OPPOSITION
of States, and was passed by a voice vote.61 While commentators have
highlighted how parliamentary obstructionism through sloganeering,
crowding the chair, et cetera, are prohibited by procedural rules and lead
gridlock and dysfunction 62 procedural impropriety
and suspension of members through voice votes can have a chilling effect
on opposition parties.

The opposition in India has its own structural weaknesses where there is a
lack of a shadow cabinet and spokespersons with subject-matter expertise
to scrutinise policies and legislations, and it often functions to serve its own
narrow self-interests.63 However, as we have highlighted before, it is
important to recognise the role of opposition in promoting public dialogue
and normalising the role of dissent against the ruling dispensation in society
through an official forum like that of the Parliament.

B. PARTISAN PRESIDING OFFICERS

It is important to note that the weakened status of the opposition in the

Parliament is not only a result of a lack of constitutional entrenchment of
opposition rights, but is also a consequence of the abuse of powers by
presiding officers. The Speaker presides over the Lok Sabha, 64 while the
Vice President of India presides over the Rajya Sabha.65 The Deputy
Speaker in Lok Sabha and the Deputy Chairman in Rajya Sabha act as
presiding officers in the absence of the Speaker and the Vice President,
respectively.66 A brief glance over the powers of the Speaker of Lok Sabha
reveals the significance of their role in facilitating discussions and
deliberations in Parliament to hold the executive accountable. A Speaker

61 The New Indian Express Team, 12 Opposition Members Suspended from Rajya Sabha for
Remaining Part of Winter Session, THE NEW INDIAN EXPRESS (Nov. 29, 2021),
[Link]
[Link].
62 Tarunabh Khaitan, The Real Price of Parliamentary Obstruction, 37 INDIA SEMINAR 642

(2013).
63 Kapur & Mehta, supra note 34.
64 INDIA CONST. art. 93.
65 INDIA CONST. arts. 64 & 89.
66 Lok Sabha Secretariat, Role of the Speaker, OFFICE OF THE SPEAKER LOK SABHA,

[Link] Also see Rajya Sabha Secretariat,

Council of States (Rajya Sabha), PARLIAMENT OF INDIA (RAJYA SABHA),
[Link] (Last visited on May 21, 2022).

66
 CALJ 6(2)

consents to the permissibility of motions.67 They can suspend members68

and can adjourn the House in the event of misconduct.69 They can demand
the withdrawal of statements by parliamentarians if they believe they are
unparliamentary.70 They alone can disqualify a member on the ground of
defection once a petition has been moved by another member of the
House.71 Considering the importance of the role of the Speaker, they would
be expected to be impartial, rising above party lines.

However, it has been repeatedly observed that Speakers behave in a

partisan manner, which is attributed to their affiliation to the ruling party.72
Similarly, the Vice President, who is the Chairperson of Rajya Sabha, is
elected through an Electoral College comprising all the members of the
Parliament, where typically, the candidate of the majority party wins the
election with the support of its allies.73 While typically, the Deputy Speaker
is elected from the opposition party,74 the current Lok Sabha does not have
a Deputy Speaker since the combined opposition lacked the strength to
appoint a Deputy Speaker. The task then falls on the ruling party to elect
one,75 which it has failed to do for two and a half years.76 In fact, recently,
a three-judge Bench of the Supreme Court in Shrimanth Balasaheb Patil v.

67 Rules of Procedure and Conduct of Business of the Lok Sabha, 2019, R. 56 & 193.
68 Id. R. 374.
69 Id. R. 375.
70 Id. R. 352 & R. 378.
71 INDIA CONST. sch. 10; See Karthik Khanna & Dhvani Shah, Anti-Defection Law: A Death

Knell for Parliamentary Dissent, 5 NUJS L. REV. 103 (2012) on how anti-defection laws
suppress dissent and hamper parliamentary debate by penalising members for going
against the mandate of party whip.
72 Charith Reddy & Shagun Bhargava, For Laws May Come and Laws May Go, But Defections

Go on Forever: A Critical Analysis of the Role of the Speaker in Indian Anti-Defection Laws, 10(1)
NLIU L. REV. 328 (2020).
73 Howindialives, A History of Vice-President Elections in India, MINT (July 12, 2017),

[Link]
[Link].
74 Id.
75 Sobhana K. Nair, Long Wait for a Deputy Speaker For Lok Sabha, THE HINDU (Sept. 3,

2021), [Link]
lok-sabha/[Link]. Crucially, INDIA CONST. art. 93 of the Constitution
provides that the Lok Sabha must choose a Speaker and Deputy Speaker at the earliest.
76 Ahluwalia & Srivastava, supra note 57.

67
 THE RIGHTS OF THE OPPOSITION
,77 raised the concern that the
Speakers have increasingly begun to act in violation of their constitutional
duty to be independent and neutral.78 If they are unable to detach
themselves from their political party, they do a disservice to the public trust
and confidence that has been reposed in them.79 A two-judge bench of the
Supreme Court in
Legislative Assembly,80 also expressed reservations regarding the grant of
quasi-judicial powers to a Speaker to decide on disqualification of elected
members of Parliament on the grounds of defection, questioning the
neutral credentials of the Speaker. It was observed by the Court that:81

31. It is time that Parliament have a rethink on whether disqualification

petitions ought to be entrusted to a Speaker as a quasi-judicial authority when
such Speaker continues to belong to a particular political party either de jure or
de facto. Parliament may seriously consider amending the Constitution to
substitute the Speaker of the Lok Sabha and Legislative Assemblies as arbiter
of disputes concerning disqualification which arise under the Tenth Schedule with
a permanent Tribunal headed by a retired Supreme Court Judge or a retired
Chief Justice of a High Court, or some other outside independent mechanism to
ensure that such disputes are decided both swiftly and impartially, thus giving real
teeth to the provisions contained in the Tenth Schedule, which are so vital in the
proper functioning of our democracy.

It is important to note that the Indian Supreme Court has termed the
-
judicial power, where the Speaker acts as a tribunal. Thus, the order of the
Speaker to disqualify a member was held to be amenable to judicial review
by the Constitution Bench of the Supreme Court in Kihoto Hollohan v.
Zachillhu.82 Interestingly, in that case, apprehensions were raised regarding

77

2 SCC 595.
78 Id. ¶ 190.9.
79 Id. ¶ 153.
80

OnLine SC 55.
81 Id.
82 Kihoto Hollohan v. Zachillhu, 1992 Supp (2) SCC 651.

68
 CALJ 6(2)

the conferment of significant powers to the Speaker, who may act on a

partisan basis. The majority overruling such concerns observed that:83

[i]t is inappropriate to express distrust in the high office of the Speaker, merely
because some of the Speakers are alleged, or even found, to have discharged their
functions not in keeping with the great traditions of that office. The robes of the
S

The majority failed to realise that partisan bias in the actions of the Speaker
is not a result of personal failings, but a consequence of the structural
weakness of the office of the Speaker. This failure reflects a lack of
pragmaticism where deference is accorded to the high office of the
Speaker, and there is a belief in good faith that the position itself would de-
politicise the office of the Speaker, even as the Court admits that Speakers
have been found to be politically partial in their actions.

The minority opinion in Kihoto Hollohan recognised the limitations of the

Speaker to act in a neutral manner due to the manner in which a Speaker
is elected and serves their tenure.84 While the observations were made in
the context of the Speaker carrying out adjudicatory functions of deciding
disqualification positions, the minority opinion is of much relevance in
highlighting the shortcomings of the office of the Speaker. The minority
[t]he Speaker being an authority within the House and his tenure
being dependent on the will of the majority therein, likelihood of suspicion of bias could
not be ruled out 85 To remedy such structural weaknesses of the office,
jurisdictions like the United Kingdom require the Speaker to sever all ties
with their political party.86 The Speaker can be removed only if they resign
or by death during the tenure.87

83 Id. ¶ 118.
84 Id. ¶ 181.
85 Id.
86 UK Parliament, The Speaker, Impartiality and Procedural Reform, [Link]

uk/about/living-heritage/evolutionofparliament/parliamentwork/offices-and-
ceremonies/overview/the-speaker/procedures-and-impartiality/ (Last visited on May 21,
2022).
87 Erskine May, Election of Speaker in Course of Session, in TREATISE ON THE LAW,
PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT (25th ed., 2019), [Link]
[Link]/section/6515/election-of-speaker-in-course-of-session.

69
 THE RIGHTS OF THE OPPOSITION
The purpose of the above discussion was to highlight how partisan
presiding officers often fail to protect the rights of the opposition in
Parliament and contribute to the suppression of democratic dialogue.
Commentators have not only highlighted the bias that arises in relation to
adjudication of disqualification petitions, but have also noted violations of
other constitutional and parliamentary conventions by presiding officers.

before the courts.

C. DEFERENTIAL COURTS

process review India is

governed by Articles 122 and 212 of the Indian Constitution. Article 122
provides the following:

(1) The validity of any proceedings in Parliament shall not be called in question
on the ground of any alleged irregularity of procedure.

(2) No officer or member of Parliament in whom powers are vested by or under.

this Constitution for regulating procedure or the conduct of business, or for
maintaining order, in Parliament shall be subject to the jurisdiction of any court
in respect of the exercise by him of those powers.
(emphasis added)

Clause (1) of Article 122 limits the ambit of judicial review. A similar
prohibition exists for judicial intervention relating to the conduct of
proceedings in legislative assemblies under Article 212. The Supreme Court
has interpreted this provision to mean that while the Court cannot interfere
with any irregularity of procedure, it can intervene if there is any
substantive illegality. In ,88 a
Constitution Bench of the Court, observed that Articles 122 and 212 do
not provide immunity to those proceedings that suffer from substantive
illegality or unconstitutionality. The principle of exclusive cognisance of
internal proceedings of Parliament, providing immunity from judicial
scrutiny, cannot be applied to India since the Indian Constitution is
supreme and not the Parliament.89

88
89 Id. ¶¶ 431 (k) (m), 360, 366.

70
 CALJ 6(2)

intervene in parliamentary proceedings tainted by substantive illegality and

unconstitutionality was affirmed by a Constitution Bench of the Supreme
Court in Kalpana Mehta v. Union of India.90 Justice Chandrachud, in his
concurring opinion, on behalf of Justice Sikri and himself, advanced the
idea that while separation of powers is a constitutionally recognised
principle, its implementation is less rigorous and nuanced.91 He observed
that the concept of separation of powers has evolved from a strict
separation of different organs of the State to an approach that recognises
that while there is a division of work, it must be integrated with the
92
checks and balances
Crucially, Justice Chandrachud observed that although one organ of the
State cannot usurp the functions of another in principle, in the practical
unfolding of events, any conflict in the exercise of powers by different
resolved through robust constitutional cultures and mechanisms 93

process review, they are equally applicable to executive aggrandisement of

power at the cost of the legislature. The lack of respect for the opposition
and parliamentary dialogue and deliberation results from the fusion of the

watchdog of the executive and majority rule is diminished. The practical

Parliament, violating democratic values, can be safeguarded only through

robust constitutional design and culture
which we have argued is absent under the Indian Constitution. This
absence also paves the way for judicial reluctance, even if the Supreme
Court has saved its power of process review, albeit on narrow grounds.94

Despite rejecting the English practice of exclusive cognisance of internal

proceedings of Parliament, the Supreme Court has been deferential to the
conduct of the majority (acting through the Speaker) in Parliament. As we
have noted before, the Rajya Sabha does not have the power to veto the

90 Kalpana Mehta v. Union of India, (2018) 7 SCC 1.

91 Id. ¶ 256.
92 Id. ¶ 33.
93 Id. ¶ 256.
94 Mohd. Saeed Siddiqui v. State of U.P, (2014) 11 SCC 415; See also Yogendra Kumar

Jaiswal v. State of Bihar, (2016) 3 SCC 183.

71
 THE RIGHTS OF THE OPPOSITION
money bills95 passed by the Lok Sabha, it can only issue recommendations
within fourteen days. A failure to issue any recommendations within
fourteen days leads to deemed approval of the bill by both the Houses of
Parliament.96 The power to classify a bill as a money bill vests with the
Speaker.97 It has been noted that the present government has classified
many controversial statutes as money bills to bypass the scrutiny of the
Rajya Sabha.98

The decision of the Speaker to classify the Aadhar Bill as a money bill was
challenged before a Constitution Bench of the Supreme Court in Justice KS
Puttaswamy v. Union of India.99 Aadhar is a twelve-digit unique identity
number, and requires Indian residents to submit biometric data to a
centralised database.100 The government made Aadhar mandatory for
availing welfare schemes.101 Amongst other things, a dispute arose
regarding whether the Aadhaar (Targeted Delivery of Financial and Other
Aadhar Act
102
been legitimately passed as a money bill. While the majority opinion
observed that judicial review of parliamentary proceedings, specifically the
decision of the Speaker, may be permissible in certain instances, it did not
certification by the Speaker about
the Bill being Money Bill is subject to judicial review of not, whether a provision which
does not relate to Money Bill is severable or not 103 Justice Bhushan, in his
concurring opinion and Justice Chandrachud, in his dissenting opinion,
observed that if the bill does not satisfy the conditions stipulated under
Article 110(1) to be classified as a money bill, the decision of the Speaker
would be subject to judicial review because certification of the bill is not
only a matter of procedure but also a breach of constitutional provisions.104

95 INDIA CONST. art. 110 cl. 1.

96 INDIA CONST. art. 109.
97 INDIA CONST. art. 110 cl. 3.
98 Datta et al., supra note 25 at 76.
99 K. S. Puttaswamy v. Union of India, (2019) 1 SCC 1.
100 Id. ¶¶ 46 48.
101 The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and

Services) Act, 2016, § 7, The Gazette of India, Extraordinary, pt. II sec. 1 (Mar. 26, 2016).
102 K. S. Puttaswamy v. Union of India, (2019) 1 SCC 1, ¶ 159.6.
103 Id. ¶ 472.
104 Id. ¶¶ 892 895 (per Bhushan, J.,concurring opinion) & ¶ 1067 (per Chandrachud, J.,

dissenting opinion).

72
 CALJ 6(2)

Thus, Article 122 of the Indian Constitution would not save the act of the
Speaker if it is in violation of the provisions of Article 110. While the Court
recognised its power of process review,105 the majority and the concurring
opinion evince that the Court adopts a deferential attitude towards
interfering in the business of its co-equal political branch.

The majority judgment delivered by Justice Sikri held that the Aadhar Act
essentially enabled the Government to use a twelve-digit unique identity
number to provide welfare, benefit or subsidy that is funded through the
Consolidated Revenue Fund of India. The disagreement between the
majority and minority arose from the use of the twelve-digit number for
other purposes. Justice Sikri read down the language of the Aadhar Act to
ensure that it remains within the scope of a money bill.106 Justice Bhushan,
in his concurring opinion, upheld the language on the basis that Article
110(1)(g) provides that a bill would be deemed to be a money bill if it
contains provisions that are incidental to the essential features of a money
bill.107

Justice Chandrachud, in his dissenting opinion, reviewed the legislative

history of the Aadhar Act, noting that the first original legislation, which
was substantially similar to the one that was passed as the Aadhar Act, was
first introduced in Rajya Sabha by the previous United Progressive Alliance
Government.108 There was no question of it being a money bill at that time,
which can only be tabled before the Lok Sabha. When the National
Democratic Alliance Government came to power in 2014, it withdrew the
original legislation from Rajya Sabha and introduced it as a money bill in
Lok Sabha.109 fraud on the
Constitution 110

Significantly, Justice Chandrachud stated:111

105 Id. ¶ 901 per Bhushan, J. & ¶ 464 as per majority.

106 K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1 ¶¶ 513.8 513.8.3.
107 Id. ¶ 907.
108 Id. ¶ 1133.
109 Id. ¶ 1136.
110 Id. ¶ 1143.
111 Id.

73
 THE RIGHTS OF THE OPPOSITION
1143. The Rajya Sabha has an important role in the making of laws.
Superseding the authority of the Rajya Sabha is in conflict with the constitutional
scheme and the legitimacy of democratic institutions. It constitutes a fraud on the
Constitution. Passing of a Bill as a Money Bill, when it does not qualify for it,
damages the delicate balance of bicameralism which is a part of the basic structure
of the Constitution. The ruling party in power may not command a majority in
the Rajya Sabha. But the legislative role of that legislative body cannot be obviated
by legislating a Bill which is not a Money Bill as a Money Bill. That would
constitute a subterfuge, something which a constitutional court cannot
countenance. Differences in a democratic polity have to be resolved by dialogue
and accommodation. Differences with another constitutional institution cannot be
resolved by the simple expedient of ignoring it. It may be politically expedient to
do so. But it is constitutionally impermissible. This debasement of a democratic
institution cannot be allowed to pass. Institutions are crucial to democracy.
Debasing them can only cause a peril to democratic structures.

While Justice Chandrachud expanded the scope of process review to assess

the intentions behind the adoption of certain parliamentary procedures to
circumvent democratic mandate and deliberations, he saw the injury in the
federal structure
Sabha attempted to trample over the interests of the constituent states of
India.112

culture, perspective and interest. However, it is possible to extend the

protection he envisages
which an opposition might represent in a democracy. While federalism
saves the diverse interests of the states, it comprises only one prong of that
plurality. A parliament consists of representatives who put forth varied
cross-cutting interests on the lines of caste, gender, labour, capital and
religion, amongst others, some posing a challenge to the agenda of the
majority. Thus, in order to effectively voice these interests, it is essential to
entrench the rights of the opposition. After all, democracy has also been
recognised as a part of the basic structure of the Indian
Constitution,113 which cannot be violated by suppressing opposition in the
Parliament.

112 Id. ¶ 1106.

113 Kesavananda Bharati v. State of Kerala and Others, (1973) 4 SCC 225.

74
 CALJ 6(2)

THE SOUTH AFRICAN EXPERIENCE

Considering the diminishing role of the opposition in India, it may be

useful to explore if a different constitutional design can help preserve the
value of opposition in the Parliament. Constitutional designs can often
provide a conducive environment for political competition to exist by
preserve such partisanship without being their prey 114

The parliamentary system of governance was predominant in South Africa

for over a century.115 It is pertinent to discuss the evolution of the current
system of government to understand when opposition rights were
crystallised in the South African framework. The 1961 Constitution,
borrowing from its predecessor, the South Africa Act, 1909, established
South Africa as a republic, severing ties with the British monarch. This
document provided for a President,116 an executive council,117 a bicameral
legislature118 and an independent judiciary.119 However, it was designed to
maintain the status quo of control by the white population over the political
affairs by bifurcating the electorate and disenfranchising non-white voters.
As the opposition against the dominant white political State grew, political
power became increasingly centralised in the office of the Prime
Minister.120

The 1961 document was soon replaced by the 1983 Constitution that
provided a varied system of governance with a President, a Cabinet and a
Council of Ministers selected from the parliament. Furthermore, it
instituted a tricameral parliament with separate houses for whites,
coloureds and Indians. It is argued that apartheid was a result of

114 Maria Paul Saffon and Nadia Urbinati, Procedural Democracy, the Bulwark of Equal Liberty,
41(3) POL. THEORY 441, 461 (2013).
115 Robert A. Schrire, Parliamentary Opposition after Apartheid: South Africa, 14(1-2) J. LEGIS.

STUD. 190 (2008).

116 S. AFR. CONST. § 7.
117 S. AFR. CONST. §§ 16 17.
118 S. AFR. CONST. § 24.
119 S. AFR. CONST. § 94.
120 Schrire, supra note 114 at 191.

75
 THE RIGHTS OF THE OPPOSITION
parliamentary sovereignty and acute centralisation in the office of the
President.121

In the 1990s, owing to immense political pressure, the apartheid system

was considered to be unsustainable and was sought to be dismantled. The
constitutional design which followed represented the negotiations between
the representatives of both black and white communities the African
ANC NP
122
respectively. The ANC recognised that the increased centralisation could
affect the new State envisioned for South Africa. The NP, though a
beneficiary of centralisation earlier, was cautious and sought to instil
effective institutional mechanisms to challenge concentrated power.123

A successor of three post-colonial constitutions, the Constitution of the

South African Constitution
product of these post-apartheid constitutional negotiations. Section 1 of
the South African Constitution explicitly recognises that the South African
a multiparty system of democratic
government, to ensure accountability, responsiveness and openness 124 While the
South African Constitution encapsulates the vision for a new democracy,
it modified the existing institutions to ensure more inclusive political
participation.125 Retaining facets of the parliamentary system of the
Republic of South Africa Constitution Act, 1983, the 1996 document is
considered to have adopted a mixed model of governance both
parliamentary and presidential.126

The South African Parliament is the legislative organ of the State. 127 It is
elected for a term of five years, with provisions for dissolving it at an earlier

121 David Bilchitz et al., Assessing the Performance of the South African Constitution, INT L
IDEA (2016), [Link]
[Link].
122 Schrire, supra note 114 at 191.
123 Id.
124 S. AFR. CONST. § 1(d).
125 Schrire, supra note 114 at 191.
126 Lindelwa Mhlongo,

Disjunctive System to a Synergistic System of Government, 41(2) OBITER 257 (2020).

127 S. AFR. CONST. §§ 42 43.

76
 CALJ 6(2)

date.128 It has two houses the Nationa NA

400 members,129 NCOP
130
comprising ninety members. Members are elected through proportional
representation to ensure a representative parliament.131

The President, similar to the 1983 Constitution, continued to remain the

executive head.132 The President is not a member of the legislature and is
accompanied by a cabinet selected from the members of the Parliament.133

be removed from office through a no-confidence vote.134 Additionally, to

keep a check on the exercise of power by the executive, the Parliament has
been bestowed with the duty to ensure executive accountability and
oversight, including implementation of legislation.135 This addresses

importance of legislators holding the executive accountable.

Strengthening the same conception, Section 57(2) envisages the leader of

the opposition as a constitutional office in the NA. It states:136

d. the recognition of the leader of the largest opposition party in the Assembly as
the Leader of the Opposition

With space for deliberation and debate, the South African Parliament has
still been dominated by the ANC since 1994.137 The large electoral mandate

128 S. AFR. CONST. §§ 49 50.

129 S. AFR. CONST. § 46.
130 S. AFR. CONST. § 60.
131 Essentially, people vote for a political party and not an individual leader. The party

would then be allocated seats in the Parliament in proportion to the votes it secured. This
system of election i.e., proportional representation secures a seat in the NA for a party
even with a meagre one per cent of the votes. See Karen E. Ferree, Electoral Systems in
Context: South Africa, in THE OXFORD HANDBOOK OF ELECTORAL SYSTEMS (Erik S.
Herron et al. ed. 2018).
132 S. AFR. CONST. § 83.
133 S. AFR. CONST. §§ 85 86.
134 S. AFR. CONST. § 89.
135 S. AFR. CONST. § 55(2).
136 S. AFR. CONST. § 57(2).
137 Ferree, supra note 130.

77
 THE RIGHTS OF THE OPPOSITION
empowered the ANC to exercise complete control and authority over the
legislative behaviour 138 For instance, ANC determines how legislators vote
and the proceedings of Parliamentary committees.139 Consequently, the
ANC leadership made institutional decisions with regard to the Speaker,
the chairs of committees, the party whip, et cetera. Therefore, only in rare
cases, Parliament would oppose the executive, and the opposition would
be rendered redundant.140

However, the constitutional provisions paved the way for another

important institution the judiciary
of parliamentary procedures. The Constitutional Court of South Africa has
decide that Parliament or the
President has failed to fulfil a constitutional obligation
Constitutional Court has been conferred the power to defy the non-
interventionist approach and step in to ensure that Parliament functions in
accordance with the provisions of the South African Constitution. This
includes providing minority parties and individuals adequate space and
opportunity for debate and deliberation in the NA.

In the case of Oriani-Ambrosini v. Sisulu ,141 the Constitutional Court set aside
a rule that required a member of the NA to seek permission from the NA
control its internal
arrangements, proceedings and procedures make rules and orders concerning
its business

Furthermore, Section 57(2) states:

b. the participation in the proceedings of the Assembly and its committees of

minority parties represented in the Assembly, in a manner consistent with

conducting its business is subject to the condition of ensuring (i)

representative and participatory democracy; (ii) accountability; (iii)

138 Schrire, supra note 114 at 203.

139 Id. at 203.
140 Id. at 204.
141 Oriani-Ambrosini v. Sisulu, 2012 (6) SA 588 (CC); See also, Mazibuko v. Sisulu, 2013

(11) BCLR 1297.

78
 CALJ 6(2)

transparency; (iv) public involvement; and (v) participation of minority

parties in assembly and committee proceedings. The Court further
highlighted that the five values stated above are of paramount importance.
Therefore, the power guaranteed in Section 57 is limited to procedural
matters, and the NA cannot impose substantive restrictions on legislators.

In the case of Democratic Alliance v. Speaker of National Assembly,142 the Court

adjudicated the forceful removal of members of the NA while asking the
President questions during his address. In this case, the Court held that
freedom of speech and immunity granted to members of the NA were
absolute, and cannot be made subject to internal rules set forth by the NA
in accordance with Section 57(1).

Stephen Gardbaum has identified three stages of South African

jurisprudence that have deviated from the conventional non-
interventionist approach of courts.143 First, judicial review of legislation for
violating constitutional procedures (2006-2007).144 Second, the review of
internal parliamentary rules for violating constitutional rights of members
of parliament.145 Third, the review of whether parliamentary procedures are
holding the executive accountable (2017).146 While the first two stages have
been argued to be constitutionally permissible, the third stage is often
considered an overreach on the part of the judiciary in breaching
parliamentary autonomy and separation of powers.147

The first two stages are characteristic of a balanced judicial intervention

based on constitutionally entrenched provisions. For instance, in the first
stage, the Court in Doctors for Life International v. Speaker of the National
Assembly,148 struck down four laws for not complying with the public
participation requirement under Sections 72(1)(a) and 118(1)(a) of the
South African Constitution. The Court intervened on the grounds that a

142 Democratic Alliance v. Speaker of National Assembly, 2013 (11) BCLR 1297 (CC).
143 Stephen Gardbaum, Pushing the Boundaries: Judicial Review of Legislative Procedures in South
Africa, 9 CONST. CT. REV. 1, 6 (2019).
144 Id. at 6.
145 Oriani-Ambrosini v. Sisulu, 2012 (6) SA 588 (CC).
146 Id.
147 Id. at 11.
148 Doctors for Life International v. Speaker of the National Assembly, 2006 (12) BCLR

1399 (CC).

79
 THE RIGHTS OF THE OPPOSITION
constitutional obligation was not fulfilled by the NCOP. It was
categorically stated that the Court could interfere in parliamentary affairs
only when the South African Constitution permits it. Similarly, in the case
of Oriani-Ambrosini, the Court was able to intervene only because there was
a condition under Section 57(2) that was breached by the Parliament.

However, in the case of United Democratic Movement v. Speaker of the National

Assembly,149
secret ballot voting mechanisms for a no-confidence motion, it led to grave
uncertainty. The Court intervened based on the silence in the South

decision is subject to judicial review on the grounds of legality. This led to

arbitrary intervention by the Court, and manifested a lack of clarity on the
degree of judicial review in such cases. In this case, as Gardbaum argues,
the guiding factor for judicial review, as highlighted in Doctors for Life, i.e.,
the existence of a constitutional obligation, has been significantly diluted.150
The Court has extended its powers of review to dictate the processes that
the NA must adopt to ensure its compliance with the South African
Constitution.151 This expansive oversight violates the separation of powers
and infringes the autonomous functioning of Parliament.

Therefore, it is extremely important to distinguish between judicial review

that is obligatory based on constitutionally entrenched provisions and
judicial review read into the constitution by judicial interpretation. The
latter can often lead to inconsistent intervention and infringe parliamentary
autonomy.

PAPERING OVER THE CRACKS THROUGH JUDICIAL REVIEW

OF LEGISLATIVE PROCESS

In the absence of constitutionally entrenched opposition rights in the

Indian constitution, there has been a growing interest in academic circles
about how process review can serve as a solution to keep the parliamentary
majority in check. We argue that process review that finds its roots in a

149 United Democratic Movement v. Speaker of the National Assembly, 2017 (8) BCLR
1061 (CC).
150 Gardbaum, supra note 142 at 10.
151 Id. at 11.

80
 CALJ 6(2)

judicially developed doctrine, rather than in the constitutional text itself,

would serve as an inadequate mechanism to protect opposition rights. In
this section, we will discuss first, how Indian courts have traditionally been
reluctant to exercise any process review. Second, we will analyse the different
theories of process review that have been proposed to be applied in the
Indian context and their shortcomings.

The reluctance towards process review primarily arises due to the doctrine
of separation of powers between the legislature and the judiciary. Thus, the
courts are required to show deference as to how the internal affairs of the

power to strike down a statute on the ground of unconstitutionality has

been accepted in many jurisdictions, including in India under Article 13, its
powers to review the legislative process, or a process review, remain
contested in most domains. The opposition to process review, as opposed
to a substantive judicial review, stems from the argument that the former
is not aimed at the protection of individual rights. However, commentators
have argued that adherence to legislative procedures is a vital practice
which is of normative importance, underlining their significance for
legislative outcomes, legitimacy, the Rule of Law, and essential procedural
democratic values.152
153
representation-reinforcing provides a justification
for process review, even though the theory itself was aimed at providing
the narrow contours of substantive judicial review. Ely worked from the
assumption that substantive judicial review stands in opposition to the
democratic value of majority rule. However, he argued that courts should
intervene only when there is a failure of the political process, which entails
that (i) the government has suppressed all channels of political change, thus
violating democracy enforcing rights like freedom of speech and right to
vote; or (ii) the minority has been almost permanently disadvantaged by
the majority in its participation in the political process because of hostility
and prejudice.

152 Ittai Bar-Siman-Tov, The Puzzling Resistance to Judicial Review of the Legislative Process, 91 B.
U. L. REV. 1915, 1936 (2011).
153 JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1st

ed. Harvard University Press 1980).

81
 THE RIGHTS OF THE OPPOSITION
However, this theory has been criticised for its distinction between process
and substantive review, where the distinction has been categorised as
superfluous.154 Stephen Gardbaum, while developing a framework of
comparative political process theory 155
account for other methods through which the political and democratic
process is undermined apart from restricting freedom of speech and vote
and systemic discrimination against minorities. He presents instances
where the ruling government attempts to entrench power by, inter alia,
undercutting the deliberative process of the legislature, weakening its ability
to extract executive accountability, and advancing the interests of powerful
special interest groups over the general interests of the diffused minority.
He argues that constitutional theory must transcend the traditional
procedure-substance division to address different forms of political
process failure which require different remedies. He does not term process
review as a violation of the separation of powers or judicial overreach.
Rather, he believes that such judicial intervention protects the separation
of legislative and executive domains. Thus, comparative political process
theory is focused on judicial review of any actions that reflect the failure of
the political process, which results from the undermining of legislative
procedures, beyond electoral processes, in letter or spirit.

It has been argued that the comparative political process theory must be
adopted as a standard for process review in India.156 On the other hand, it
has been argued that expanding the scope of judicial review to decisions
that can have political ramifications of such magnitude would make the
judiciary vulnerable to political capture, and represent a threat to judicial
independence.157 Although the judges in the higher judiciary are appointed
154 Erwin Chemerinsky, The Price of Asking the Wrong Question: An Essay on Constitutional
Scholarship and Judicial Review, 62 TEX. L. REV. 1207, 1222 (1984).
155 Stephen Gardbaum, Comparative Political Process Theory, 18 INT L J. CONST. L. 1429

(2020).
156 Anmol Jain, Judicial

Ambika Roy, INDIAN CONST. L. & PHIL. BLOG (Nov. 16, 2021), [Link]
[Link]/2021/11/16/guest-post-judicial-review-of-legislative-process-analyzing-
calcutta-high-courts-decision-in-ambika-roy%ef%bf%bc/.
157 Gautam Bhatia, Judicial Supremacy amid the Breakdown of Constitutional Conventions: What

the Karnataka Controversy Tells Us About Our Parliamentary Democracy, INDIAN CONST. L. &
PHIL. BLOG (July 16, 2019), [Link]
-supremacy-amid-the-breakdown-of-constitutional-conventions-what-the-karnataka-
controversy-tells-us-about-our-parliamentary-democracy/.

82
 CALJ 6(2)

by the judiciary itself, concerns of executive interference in the

appointment of judges have been raised.158

We believe that depending on the judicial resolution of political conflicts

makes us Constitution is more than what judges say it is 159 As
excessive reliance upon the Court deceives us into
thinking that these disputes are purely constitutional in nature and that only the Justices
can resolve them 160 An over-reliance on the judiciary to solve legislative
failures diminishes the role of other political branches in interpreting and
upholding the constitution. Furthermore, the question of constitutionality
framed in either/or terms cannot often address the dubious nature of the
action in question.161 An act may not be unconstitutional, but it may still be
violative of accepted norms and conventions of parliamentary conduct,
which exist to restrain majoritarian tyranny.

In the absence of governing principles in the Indian Constitution, it is

difficult to create a consistent and well-defined judicial standard of process
review that would be able to promote democratic dialogue and a plurality
of interests in Parliament. First, judicially developed criteria of process
review in the absence of an explicit constitutional mandate are susceptible
to arbitrary application, depending on the predisposition of the judge.
While even substantive judicial review is subject to the predilections of the
judge, the Indian Constitution provides a list of constitutionally recognised
rights against which the constitutionality of a statute is to be assessed.
Second, process review does not necessarily empower the legislature, it
rather expands the power of the judiciary to intervene in the legislative
process without any guarantee that it would necessarily stand in opposition
to the dominant political opinion. Mark Tushnet, for instance, has called

158 Parmod Kumar, Government Interference in Judiciary: Senior ,

BUSINESS STANDARD (Mar. 31, 2018), [Link]
[Link]/article/news-ians/government-interference-in-judiciary-senior-lawyers-
echo-judge-s-concern-118033100201_1.html; Prannv Dhawan & Anmol Jain, Strong
Executive, Weak Courts: Collapsing Edifice of Judicial Independence, THE LEAFLET (Oct. 10,
2019), [Link]
judicial-independence-opinion-supreme-court-of-india/.
159 Jonathan L. Etin, Separation of Powers, Political Branches and the Limits of Judicial Review, 51

OHIO ST. L. J 175, 226 (1990).

160 Id. at 176 177.
161 Id.

83
 THE RIGHTS OF THE OPPOSITION
noise around zero ot
often contradict dominant political positions.162 In fact, a framework

the majoritarian impulses of the judicial institution as well.163

The example of South Africa highlights that clearly laid out constitutional
mandates protecting the opposition provide a framework against which the
judiciary can prevent the majority party from trampling down on the rights
of the opposition, as vindicated in Oriani-Ambrosini. If the power of the
judiciary is to be augmented to enable process review, then safeguards and
clarity need to be provided in the Indian Constitution itself to identify when
and how the judiciary can exercise this power. Otherwise, process review
will only be an unruly horse. For instance, in the Indian context, there is a
lack of clarity on how substantive illegality should be interpreted to allow
the Court to exercise its powers of process review since Article 122 bars
the Court from interfering in matters of mere procedural irregularity.
Previously, the Supreme Court164 has used the violation of constitutional
mandate or constitutional provisions as the touchstone of assessing
whether the violation can be classified as the one suffering from
substantive illegality or unconstitutionality. In fact, the decision of Ashish
Shelar, which has been hailed for setting a strong precedent for process
review, has muddied the doctrinal waters where the Supreme Court, in its
bid to arrive at the correct outcome, sidestepped the previous precedents.
The Court held that Rule 53, which allowed the period of suspension of
MLAs to be increased in a graded
manner on each successive misconduct, carried a substantive stipulation

162 MARK TUSHNET, TAKING THE CONSTITUTION AWAY FROM THE COURTS 153 (1st ed.
Princeton University Press 1999).
163 Citizens Against Hate, Cour

Criticism of the Recent Decisions of the Courts Where they Failed to Protect Rights of Minorities and
Pandered to Majoritarian Agenda, in, MAJORITARIAN CONSOLIDATION: CHRONICLING THE
UNDERMINING OF THE SOCIAL REPUBLIC (Mar. 1, 2020), [Link]
g/wp-content/uploads/2020/04/[Link].
164

Speaker, (2007) 3 SCC 184, it in case gross illegality or violation of

constitutional provisions is shown, the judicial review will not be inhibited in any manner by art. 122, or
for that matter by art. 105.

84
 CALJ 6(2)

that the power to suspend is not to be used for punishment but for the
self-security of the House.

The maximum suspension that could be given was for the remainder of the
session, but the MLAs were suspended for one year. The Court held that
even if it cannot question the validity of the parliamentary proceeding on
procedural irregularity, it can intervene if there is a violation of a
substantive stipulation. Any suspension beyond the period contemplated
by Rule 53 was arbitrary and violative of Articles 14 and 21 of the Indian
Constitution. It also violates democratic values because the constituencies
remained unrepresented for the period of suspension. While the Court
attempted to make a case that Rule 53 presents a broader substantive
stipulation regarding the working of Parliament, in e
enforcing the parliamentary procedure. It is uncertain how subsequent
cases would use this precedent and whether it will be deemed that the
violation of parliamentary rules constitutes a violation of the constitutional
mandate itself.

Moreover, in the absence of a shared constitutional understanding of

opposition rights, the political branch may disobey or delay the
implementation of court orders, making the judicial mechanism an inapt
remedy to deal with political dysfunction. For instance, despite the order
of the Supreme Court in Keisham Meghachandra Singh directing the Speaker
to decide disqualification petitions under the Tenth Schedule of the Indian
Constitution in three months, the Speaker did not make the decision within
the stipulated time.165
the knuckles of the office of Speaker for functioning in a partisan manner.

CONCLUSION

The interests of various marginalised sections of society are politically

represented in the Parliament. These representatives negotiate
compromises, demand justifications and help hold the majority
accountable. Strengthening of the opposition requires its
institutionalisation through measures like recognising the office of the
leader of the opposition, improving oversight mechanisms and preventing
repeated violations of constitutional and parliamentary conventions by

165 Jain, supra note 155.

85
 THE RIGHTS OF THE OPPOSITION
reforming the office of presiding officers. It may be argued that in the face
of a powerful majority in the Parliament, the opposition may not be able
to block the agendas of the ruling party, then whether there is any benefit
in institutionalising the rights of the opposition. However, even with a
limited democratic mandate, the opposition, as noted by the authors
before, can enable public screeni
It is important to remember that in a democracy, the opposition can stand
as a wall between the majority rule and the tyranny of the majority.

While providing a comprehensive list of opposition rights that must be

incorporated in the Indian Constitution is outside the scope of this article;
the thrust of the argument is that empowerment of the legislative process
would result from empowering individual legislators and minorities in the
Parliament, who would have the most incentive and ability to protect their
rights as opposed to judicial intervention. However, in the absence of such
a framework of opposition rights, various approaches to judicial review as
discussed above may serve as an imperfect solution.

To clarify, a process review by the judiciary is acceptable if the standards

for such review are laid down in the Indian Constitution. However, one
must be wary of the judiciary developing its own criteria. We have
witnessed how the current process review standard developed by the
Supreme Court, i.e., the substantive illegality or unconstitutionality of the
parliamentary process, has failed to keep the majority party in check and
has further resulted in different judicial interpretations, as is evident from
the disagreements between the majority and minority opinions in Justice KS
Puttaswamy.

One must remember that the Constitution is interpreted by different

branches of the State that negotiate power allocation based on a set of
governing principles derived from the Constitution. Thus, it is important
to strengthen the opposition by constitutionally recognising its role and
rights and improving oversight mechanisms.

86
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POLITICAL PROCESS FAILURE IN THE INDIAN

PARLIAMENT: STUDYING ABUSE OF POWER BY THE
CHAIR AND HOW IT CAN BE ADDRESSED

ANMOL JAIN1

Parliamentary deliberation is constantly declining in India, with several laws being passed
in violation of due process. There are numerous reasons for this decline. This paper argues
that one of the contributing factors is the abuse of power by the Chair of the two Houses
of Parliament. The Constitution of India and the respective Conduct of Business Rules
of the two Houses confer certain consequential powers upon the Chair, including the
power to certify a bill as a money bill and to order a division of votes. This paper
documents how the Chairpersons have functioned in a partisan manner, denying
legislative due process to the opposition parties. It identifies two factors that enable such
abuse: one, the constitutional design of the Chair that keeps the Chairpersons subservient
to their political party; and two, the constitutional and parliamentary rules that confer
finality upon the decisions of the Chair. Based on this study, this paper proposes certain
changes in the constitutional design and internal checking mechanisms to secure the
independence of the Chair. It also develops a theoretical framework for creating an
external check in the form of judicial review, which could also be extended and employed
as a general theory of judicial review of the legislative processes.

In the whole set-up of parliamentary democracy, the Speaker is the only autocrat
meaning thereby that his exercise of authority requires no previous consultation
or concurrence of anybody and the authority is unchallengeable.
-G.V. Mavalankar2

* Cite it as: Jain, Political Process Failure in the Indian Parliament: Studying Abuse of Power by the
Chair and How it can be Addressed, 6(2) COMP. CONST. L. & ADMIN. L. J. 87 (2022).
1 Anmol Jain is an advocate holding a B.A. LL.B. degree from the National Law

University, Jodhpur. The author may be reached at <jainanmol23@[Link]>.

** I thank Dr. MR Madhavan, peer reviewers, editors and the participants of the National
Seminar on Constitutional Law organised by the National Law University, Jodhpur for
reading and sharing their valuable feedback on the earlier versions of this paper.
2 G.V. Mavalankar, The Office of the Speaker, in SUBHASH C. KASHYAP (ED.), DADA SAHEB

MAVALANKAR: FATHER OF LOK SABHA 153 (The Lok Sabha Secretariat 1989).

87
POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:
STUDYING ABUSE OF POWER BY THE CHAIR AND HOW IT
CAN BE ADDRESSED
INTRODUCTION

Indian democracy is under attack. Tarunabh Khaitan, in a celebrated but

Killing a Constitution with a Thousand Cuts: Executive
Aggrandisement and Party-state Fusion in India has comprehensively
documented how the current National Demo NDA
government has been incrementally laying the groundwork for an
authoritarian rule in India.3 Scholars such as Christophe Jaffrelot and
Arvind Narrain have extensively explored how the Bharatiya Janata Party
BJP angh Parivar have deployed the tool of institutional
capture in this regard.4 Internationally, several indices that measure the
performance of democracy have identified this trend. The V-Dem Institute
has classified India as an electoral autocracy in its Democracy Report 2021,5

from the 27th position in 2014 to the 53rd democratic

backsliding under the leadership of Narendra Modi 6

However, one aspect that has not been given adequate attention in these
studies is how the government has, by taking advantage of its electoral
majority, fast-paced the due process of lawmaking and effectively
neutralised the Indian Parliament by curbing the extent and quality of
parliamentary deliberation.7 Debate and deliberation perform certain
consequential functions in a democracy. These processes not only respect
3 Tarunabh Khaitan, Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and
Party-state Fusion in India, 14(1) L. & ETHICS HUM. RTS. 49 (2020); See also, Manoj Mate,
Constitutional Erosion and Challenges to Secular Democracy in India, in MARK A. GRABER,
SANFORD LEVINSON AND MARK TUSHNET (EDS.), CONSTITUTIONAL DEMOCRACY IN
CRISIS (Oxford University Press 2018); M. RAJSHEKHAR, DESPITE THE STATE 1-11, 216-
229 (Context 2021).
4 CHRISTOPHE JAFFRELOT, MODI S INDIA: HINDU NATIONALISM AND THE RISE OF

ETHNIC DEMOCRACY (Context 2021); ARVIND NARRAIN, INDIA S UNDECLARED

EMERGENCY: CONSTITUTIONALISM AND THE POLITICS OF RESISTANCE (Context 2022).
5 Autocratization Turns Viral: Democracy Report 2021, V-DEM INSTITUTE (Mar. 2021),

[Link]
[Link]/static/website/files/dr/dr_2021.pdf&sa=D&source=docs&ust=16520163881
31782&usg=AOvVaw0h75AVa5Swl9Mu2Fy5CG-w.
6 Democracy Index 2020: In Sickness and In Health?, THE ECONOMIST (2021),

[Link]
7 See Vikram Narayan & Jahnavi Sindhu, A Case for Judicial Review of Legislative Process in

India?, 53(4) WORLD COMP. L. 358, 363-376 (2020).

88
 CALJ 6(2)

the many-minds principle8 but also require the legislators to articulate their
reasons for taking a particular stand, thereby helping the legislature to
constantly oversee the executive and demand accountability for its actions.9
it is only through such justification that power can be
considered legitimate, based on collective authority rather than brute force. 10
Therefore, if a procedural limitation on the lawmaking process in the form
of parliamentary deliberation is curbed, it gives the executive a free pass to
frame anti-democratic sub-constitutional laws without any effective
legislative oversight.

This has been achieved in India by employing several tools, such as the
abuse of the ordinance-making power, over-use of the anti-defection law,
and virtual non-use of the power to refer bills to parliamentary
committees.11 This paper studies one such tool: partisan functioning by the
Chairpersons of the two Houses of Parliament.

The Chairpersons of the two Houses of Parliament are constitutionally

obligated to function independently and impartially to guarantee legislative
due process.12 This necessarily mandates that after being chosen to
function as the Chair, the selected candidate must maintain sufficient
distance from their political party, at least while performing the duties
assigned to the Chair, and must not treat the ruling party in any manner
different from the opposition parties. As G.V. Mavalankar, the first

8 See Udit Bhatia, the Party Like? The Status of the Political Party in Anti-Defection
Jurisdictions, 40 L. & PHIL. 8-11 (2021); See also, Bernard Grofman & Scott L. Feld,
General Will: A Condorcetian Perspective, 82(2) AM. POL. SCI. REV. 567 (1988).
9 See WILLIAM SELINGER, PARLIAMENTARISM: FROM BURKE TO WEBER 3-4 (Cambridge

University Press 2019); JOHN STUART MILL, CONSIDERATIONS ON REPRESENTATIVE

GOVERNMENT 107-132 (The Floating Press 2009).
10 Udit Bhatia, Cracking the Whip: The Deliberative Costs of Strict Party Discipline, 23(2)

CRITICAL REV. INT L SOC. & POL. PHIL. 254, 262 (2020).
11 Anmol Jain, Democratic Decay in India: Weaponizing the Constitution to Curb Parliamentary

Deliberation, (May 31, 2021) (unpublished manuscript) (on file with the author); Functioning
of 16th Lok Sabha (2014-2019), PRS LEGISLATIVE RESEARCH, [Link]
parliamenttrack/vital-stats/functioning-16th-lok-sabha-2014-2019 (on the declining role
of the parliamentary committees in the law-making process in India).
12 See PHILIP LAUNDY, THE OFFICE OF SPEAKER 7 (Cassell 1964); Philip Laundy, The

Speaker of the House of Commons, 14 PARL. AFF. 72 (1960); See D.R. ELDER (ED.), HOUSE OF
REPRESENTATIVES PRACTICE 167-169 (7th ed, Department of the House of
Representatives 2018).

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POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:
STUDYING ABUSE OF POWER BY THE CHAIR AND HOW IT
CAN BE ADDRESSED
the success of parliamentary democracy depends
not only on the impartiality of the presiding officer the Speaker but also on his
courage and indifference to the favours or the frowns of the executive government 13

However, the actual performance of the Chair during the present regime
seems to be quite far from this ideal. There have been several instances
when the debate on the union budget was guillotined by the Lok Sabha
Speaker,14 a practice that allows the Speaker to put a bill to vote without
any debate and discussion. Similarly, on several occasions, the Speaker has
wrongfully certified a bill as a money bill15 and has shown collusion with
the ruling party to disallow discussions on controversial matters that can
result in political setbacks.

In this backdrop, the next part of the paper discusses a few instances of
abuse of power by the Chair of the two Houses of Parliament and shows
how they have impacted parliamentary deliberation and the lawmaking
process in India. Based on this, the paper explores the reasons that enable
the Chair to function in an undemocratic and partisan manner, denying
legislative due process to the opposition par Possible
Solutions to Check Partisan Functioning by the Chair
this paper. After proposing certain constitutional design changes to secure
the independence of the Chair, it develops a theoretical framework for
creating external checks in the form of judicial review to check the powers
of the Chair. The last part concludes the paper.

13 G.V. Mavalankar, On the Position of Speaker, No-Confidence Motions and Parliamentary

Committees, in SUBHASH C. KASHYAP (ED.), DADA SAHEB MAVALANKAR: FATHER OF LOK
SABHA 147 (The Lok Sabha Secretariat 1989).
14 Guillotine on Budget Debate, THE TELEGRAPH (Mar. 15, 2018),
[Link]
Union Budget 2021-22: Demands for Grants Guillotined, Appropriation Bill Passed,
BUSINESS LINE (Mar. 17, 2021): [Link]
/union-budget-2021-22-demands-for-grants-guillotined-appropriation-bill-
passed/[Link]; Sana Ali & Ambar Sharma, Budgets Routinely Passed Without
Discussion and Scrutiny: Data Show, BLOOMBERG QUINT (Feb. 28, 2020),
[Link]
discussion-and-scrutiny-data-show.
15 See infra, Part II.

90
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ABUSE OF POWER BY CHAIR

A. WRONGFUL CERTIFICATION OF BILLS AS MONEY BILLS

Constitution restricted role for

the Rajya Sabha in matters related to money bills.16 It provides that money
bills can be introduced only in the Lok Sabha, and once transmitted to the
Rajya Sabha, the Rajya Sabha is obligated to return the money bill to the
Lok Sabha with its non- within a period of
17
fourteen days from the date of its receipt
of a bill as a money bill has a definitive and destabilising impact on the
principle of bicameralism and it nullifies the epistemic functions performed
by the Rajya Sabha in the lawmaking process. It allows the ruling executive
to bypass the requirement of seeking majority support for its legislative
agenda in the Rajya Sabha and thus, save itself from deliberating,
defending, and convincing the parliamentarians about the merits and needs
of its proposed legislation.18

The ruling political party typically invokes such tactics when it lacks a
majority in the Rajya Sabha, a situation that the present NDA government
has recurrently exploited. The most common way adopted in this
endeavour is by tacking unrelated matters with a bill concerning the
subjects enlisted under Article 110 of the Constitution taxation, financial
obligations undertaken by the Government of India and Consolidated
Fund of India and passing the whole as a money bill in clear violation of
19
only One of the most prominent
and highly debated examples of the same is the Aadhaar (Targeted Delivery
of Financial and Othe the
Aadhaar Act 20

16 INDIA CONST. art. 109.

17 INDIA CONST. art. 109 cl. 2.
18 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2019) 1 SCC 1, ¶¶ 1094-1111 (per

Chandrachud, J., dissenting opinion).

19 INDIA CONST. For the purposes of this Chapter, a Bill shall be deemed to
be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely: -

20Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services)
Act, 2016, Act No. 18 of 2016.

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POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:
STUDYING ABUSE OF POWER BY THE CHAIR AND HOW IT
CAN BE ADDRESSED
The Aadhaar Act was enacted to create a biometric identity for Indian
citizens. It entitles every citizen to obtain an Aadhaar number by
submitting demographic and biometric information which could also be
used as a proof of identity. The Preamble to the Aadhaar Act mentions
targeted delivery of subsidies, benefits and
21
service, the expenditure for which is incurred from the Consolidated Fund of India
Prima facie, it might seem that the Act falls under the domain of Article 110
as it pertains to extending benefits charged on the Consolidated Fund of
India. However, a detailed study of the Act reveals that the government
tacked several additional provisions along with, which virtually brings the
Act out of the definition of a money bill.22

For instance, Section 57 of the Aadhaar Act authorises any individual

(private included) to require the possession of the Aadhaar number as a
means to for any purpose
empowers the Unique Identification Authority of India, the nodal authority
established to perform the core functions outlined in the Act, to specify
any other purposes
outlined in the Preamble.23 It also includes provisions regarding security
and confidentiality of the personal data so obtained and creates substantive
offences and penalties regarding the same.24 Therefore, read cumulatively,
the Act creates an ecosystem wherein the possession of a biometric-based
Aadhaar number could be made compulsory for availing any service, which
might even have no connection with the Consolidated Fund of India.

The Aadhaar Act is not the only example of rampant misuse. Since 2014,
the Speaker has certified, and in an unconstitutional fashion, many

21 Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services)
Act, 2016, Preamble.
22 See Tarunabh Khaitan, Killing a Constitution with a Thousand Cuts: Executive Aggrandizement

and Party-state Fusion in India, 14(1) L. & ETHICS OF HUM. RTS. 49, 65-66 (2020); M.R.
Madhavan, Name of The Bill, THE INDIAN EXPRESS (Apr. 15, 2016),
[Link]
the-bill-2754080/; Pratap Bhanu Mehta, Privacy After Aadhaar, THE INDIAN EXPRESS
(Mar. 26, 2016), [Link]
aadhaar-money-bill-rajya-sabha-upa/.
23 Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services)

Act, 2016, § 23(h).

24 Id. §§ 37-39.

92
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contentious and politically heavyweight bills as money bills.25 This could

rm when the
opposition parties enjoyed the majority in the Rajya Sabha.

For instance, the NDA government introduced the dubious electoral bond
scheme, which allows a donor to anonymously donate an unlimited amount
of funds to political parties by amending various laws through the Finance
Act, 2017.26 Under Part XIV, the Finance Act also amended several statutes
that established tribunals in India,27 majorly to one, abolish and merge some
of the existing tribunals; and two, empower the central government to make
rules regarding the conditions of service, qualification, appointment, term
of office, salaries and allowances, resignation, and removal of the presiding
officers and other members of such tribunals.28

When compared to the Aadhaar Act, non-money related matters that fall
beyond the scope of Article 110 are explicitly tacked with this legislation.29
The Speaker also certified bills that sought parliamentary approval of the
demonetisation scheme as money bills30 and made it easier for political
parties to receive foreign funds.31

25 For a list of the same, see Pratik Datta et al., Judicial Review and Money Bills, 10(2) NUJS L.
REV. 75, 76-77 (2017); Devyani Chhetri, As Justice Chandrachud Calls Aadhaar Law
, BLOOMBERG QUINT
(Oct. 3, 2018), [Link]
chandrachud-calls-aadhaar-law-unconstitutional-government-increases-use-of-
controversial-short-cut.
26 The Finance Act, 2017, Act No. 7 of 2017; Anjali Bhardwaj & Amrita Johri, Ensuring

Trust in the Electoral Process, THE HINDU (Mar. 8, 2021), [Link]

ion/op-ed/ensuring-trust-in-the-electoral-process/[Link].
27 Finance Act, 2017, No. 7 of 2017, see Part IV.
28 Id. § 184.
29 See Suhrith Parthasarathy, Trickeries of the Money Bill, THE HINDU (Apr. 10, 2019),

[Link]
bill/[Link].
30 The Specified Bank Notes (Cessation of Liabilities) Act, 2017, Act No. 2 of 2017; To

Bypass RS, Demonetization to Come as A Money Bill, DNA (Jan. 28, 2017),
[Link]
money-bill-2296844.
31 PTI, Lok Sabha Passes Bill to Exempt Political Parties from Scrutiny on Foreign Funds, Without

Debate, THE HINDU (Mar. 18, 2018), [Link]

93
POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:
STUDYING ABUSE OF POWER BY THE CHAIR AND HOW IT
CAN BE ADDRESSED
Despite its uses abuses the money
bill route cannot be adopted for every legislation. For certain of them, it
core
legislation concerns money matters, and other provisions are just
incidental, which has been the line of argument of the government when
these statutes were judicially challenged.32 Such matters have to be
deliberated and passed through the Rajya Sabha, and the NDA government
has resorted to yet another mechanism to abuse the power of the
Chairperson in its favour.

B. DENYING THE DEMAND FOR DIVISION OF VOTES

On September 20, 2020, the Rajya Sabha was debating the contentious
Farmers (Empowerment and Protection) Agreement on Price Assurance
and Farm Services Bill, 202033
Farm Bills 34 When
the Deputy Chairman proceeded to conduct voting on the said bills,
members from the opposition parties moved several statutory resolutions,
amendment motions and a resolution to refer the two bills for
consideration to a select committee and demanded a division of votes for
each of them before final voting on the bills.35 The Rules of Procedure and
Conduct of Business in the Council of States state that if the decision of
the Chairman about the sense of the house on any matter is challenged, he
is obligated to hold a division of votes.36 Ignoring all such demands by
claiming that the members demanding division were not present in their

sabha-passes-bill-to-exempt-political-parties-from-scrutiny-on-foreign-funds-without-
debate/[Link].
32 See Justice K.S. Puttaswamy (Retd.) v. Union of India, (2019) 1 SCC 1, ¶ 461.
33 The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm

Services Bill, 2020, Bill No. 112 of 2020.

34

Bill No. 113 of 2020.

35 Meenakshi Ray, 2 Farm Bills Clear Rajya Sabha Hurdle Amid Protests, HINDUSTAN TIMES

(Sept. 20, 2020), [Link]

after-chaos-oppostion-members-demand-voting-on-farm-bills/story-
[Link].
36 Rules of Procedure and Conduct of Business in the Council of States, Rules 252-254.

94
 CALJ 6(2)

seats,37 the Deputy Chairman rejected all the motions tabled by the
opposition parties by way of voice votes. He proceeded with the final
voting on the Farm Bills, which were deemed as passed by way of a voice
vote amid chaos and in clear derogation of the Rules.38 As the editor of a
national daily, The Hindu, has noted:

[t]he explanation that members were not demanding a division from their seats
and the house was not in order is disingenuous. To begin with, the disorder was
39

The importance of the division of votes lies in the fact that it brings on
record the standing of different political parties on an issue, and it comes
with a possibility of embarrassment for the government in case any of its
coalition partners votes against it.40 There remains a possibility that the
government lacked the support of enough members of the Rajya Sabha to
enough numbers to
face the division of votes41 seems dubious as the Farm Bills were always

37 Manoj CG,
TV Shows Otherwise, THE INDIAN EXPRESS (Sept. 28, 2020), [Link]
article/india/dy-chairman-said-opp-wasnt-in-seat-when-asking-for-division-rs-tv-shows-
otherwise-6617404/; Ajoy Ashirwad Mahaprashasta,
Bills Debate Paint Picture of RS Rules Violation, THE WIRE (Sept. 27, 2020),
[Link]
38 Scroll Staff, Parliament: Rajya Sabha Passes 2 Farm Bills, Opposition Alleges Demand for

Division of Votes Denied, [Link] (Sept. 20, 2020), [Link]

ament-rajya-sabha-passes-2-farm-bills-opposition-alleges-demand-for-division-of-votes-
denied; Such practices are not a new phenomenon. Even in the past, Chairpersons have
employed this controversial route to avoid actual counting of the numbers. See also,
Varghese K George, Voice Vote Valid Only When Nobody Questions It, THE HINDU (Nov.
13, 2014), [Link]
only-when-nobody-questions-it/[Link].
39 Editorial, A Point of Order: On Farm Bills, THE HINDU (Sept. 22, 2020),

[Link]
40 See Chakshu Roy, Explained: Why Division of Votes Is Key To Healthy Parliamentary System,

FINANCIAL EXPRESS (June 28, 2019), [Link]

news/explained-why-division-of-votes-is-key-to-healthy-parliamentary-
system/1621857/.
41 Ravi Singh, Govt Ready to Discuss Farm Bills, Face Division of Votes if Suspended Members

Express Regret: Naidu, THE TRIBUNE (Sept. 22, 2020), [Link]

ws/nation/govt-ready-to-discuss-farm-bills-face-division-of-votes-if-suspended-
members-express-regret-naidu-144942.

95
POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:
STUDYING ABUSE OF POWER BY THE CHAIR AND HOW IT
CAN BE ADDRESSED
contentious since the beginning, as evident from the fact that one of the
union ministers had also resigned in protest.42 It seems that the government
had perhaps co
to avoid any division of votes and clear the bills by a voice vote.43

Such abuse of power is not only limited to Parliament. In February 2021, a

similar incident occurred in the state of Karnataka. The ruling BJP
government enjoys the majority in the Karnataka State Legislative
Assembly but lacks it in the Legislative Council. When the Karnataka
Prevention of Slaughter and Preservation of Cattle Bill, 2020, was brought
up in the Legislative Council, the Chairperson did not allow a division of
votes despite repetitive demands from the opposition parties and
proceeded with conducting a voice vote. The Chairperson declared the bill
as passed by taking a sense of the house by a voice vote amid uproar and
chaos.44 Interestingly, both the Farm Bills and this Karnataka Act were
first introduced as ordinances. These instances evince how the impartiality
and independence of the Chair have been compromised and enervated in
the Indian legislative setting as the Chairpersons seem to be prioritising
party patronage over ensuring legislative due process and independent
functioning.45

42 Special Correspondent, Harsimrat Kaur Badal Quits Union Cabinet in Protest Against Two
Agri Bills, THE HINDU (Sept. 18, 2020), [Link]
er-states/harsimrat-kaur-badal-quits-union-cabinet-in-protest-against-two-agri-
bills/[Link].
43 See Anuj Bhuwania, Voice Vote as Constitutional Subterfuge, THE HINDU (Feb. 22, 2021),

[Link]
subterfuge/[Link].
44 Staff Reporter, Anti-cow Slaughter Bill Passed in Karnataka, THE HINDU (Feb. 8, 2021),

[Link]
in-karnataka/[Link].
45 Apart from the aforementioned abuse of power, India recently witnessed suspension of

MPs/MLAs that greatly affects the culture of debate and deliberation in the House.

can take place through two routes: by a motion passed in the House or by the
Speaker/Chairman. Most of the incidents of suspensions have arisen by account of
motions passed in the House, wherein the presiding officer does not have any power but
to ask the suspended members to leave. Moreover, all these incidents have some
connection to the unruly behaviour of the members of the opposition parties (the aspect
of proportionality is definitely a debate that must take place). As this paper restricts itself

96
 CALJ 6(2)

FACTORS ENABLING THE ABUSE OF POWER BY THE

CHAIR

In this part, I discuss two factors that have enabled the Chair to function
in a partisan manner. First, the constitutional design of the Chair does not
include mechanisms for ensuring its independence from the political party
on whose ticket the Chairperson won the election to Parliament. Second, the
decisions of the Chair have been accorded finality, with no internal as well
as external checks on their power, a situation which changed only very
recently.

A. FLAWED CONSTITUTIONAL DESIGN

The Constitution and the respective parliamentary rules of the two Houses
of Parliament provide the procedure for selecting the Chairpersons. Article
89 states that the Vice President of India shall function as the ex-officio
Chairperson of the Rajya Sabha,46 and the house shall choose a member of
the Rajya Sabha to function as the Deputy Chairperson.47 The method for
the selection of the Deputy Chairperson has been detailed under Rule 7 of
the Rajya Sabha Rules.48 It provides that after seeking prior consent from
a prospective candidate, any member of the Rajya Sabha could give a notice
in writing to the Secretary-General of a motion that such other member be
chosen as the Deputy Chairperson. After the notice is seconded by a third
member of the Rajya Sabha, the member who issued the notice is allowed
an opportunity to move the motion, and if the motion receives the support
of the majority, it is deemed to be carried, and the candidate in whose
favour the motion was raised is elected as the Deputy Chairperson. A

to instances wherein speakers have deliberately abused their power to fulfil the political
agenda of the ruling party and the connection between the abuse of power and such
fulfilment of political agenda is direct, the author has refrained from discussing suspension
of members.
46 INDIA CONST. art. 89 cl. 1.
47 INDIA CONST. art. 89 cl. 2.
48 Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), R.7

(9th ed., 2016).

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POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:
STUDYING ABUSE OF POWER BY THE CHAIR AND HOW IT
CAN BE ADDRESSED
similar procedure is envisaged for choosing Chairpersons of the Lok
Sabha.49

A few observations can be made about the selection of Chairpersons from

studying this process. One, a legislator who is elected to Parliament on the
ticket of a political party could be selected to function as the Chairperson
without any pre-condition, such as resignation from the political party, to
reflect their independence from such political party;50 two, the only
condition to be fulfilled is that such prospective candidate must give their
consent to be chosen as the Chairperson which must be backed by one-
third of the members; and three, as the selection is made through a process
of election, it is generally certain that the candidate who is backed by the
ruling party will be chosen to act as the Chairperson.51

Therefore, it would not be wrong to conclude that the procedure for the
selection of the Speaker and the Deputy Speaker of the Lok Sabha and the
Deputy Chairman of the Rajya Sabha is skewed in favour of the ruling party
and the Constitution as well as the respective parliamentary rules do not
envisage any checks to ensure that the Chairpersons do not function in a
partisan manner.52 Commenting on this structural imbalance, Mavalankar,
in a speech delivered at the time of his election as the Speaker of the Lok
Sabha in 1952, stated that:53

It is obviously not possible, in the present conditions of our political and

parliamentary life, to remain as insular as the English Speaker, so far as political

49 INDIA CONST. art. 93; Rules of Procedure and Conduct of Business in Lok Sabha, R.7
& R.8 (16th ed., 2019).
50 See Hari Chand, Powers of the Speaker, 16(1) J. INDIAN L. INST. 128, 132 (1974); Deepak

Raju & Karthy Nair,

ication Under The Tenth Schedule?, 2 NUJS L. REV. 127, 128
(2009).
51 For an internal account of why the election of a party-member to the Offices of the

Chairpersons is important, see SHAKTI SINHA, VAJPAYEE: THE YEARS THAT CHANGED
INDIA 78-81 (Penguin Random House India 2020).
52 See Role of the Speaker, OFFICE OF THE SPEAKER OF THE LOK SABHA,

[Link]
53 M.N. KAUL & S.L. SHAKDHER (ANOOP MISHRA ED.), PRACTICE AND PROCEDURE OF

PARLIAMENT 102-108 (7th ed., Lok Sabha Secretariat 2016).

98
 CALJ 6(2)

Speaker. We have yet to evolve political parties and healthy conventions about
Speakership, the principle of which is that once a Speaker, he is not opposed by
any party in the matter of his election, whether in the constituency or in the house,
so long as he wishes to continue as a Speaker. To expect the Speaker to be out
of politics altogether without the corresponding convention is perhaps entertaining
contradictory expectations.
(emphasis added)

The situation remains the same even today, which allows the government
54
or to subvert the opposition
55
parties.

B. CONFERMENT OF FINALITY UPON THE DECISIONS OF THE CHAIR

The second factor which has enabled the abuse of power by the
Chairpersons is the conferment of finality on their decisions. When it
comes to money bills, Article 110(3) of the Constitution states that if any
question arises whether a bill is a money bill or not, the decision of the Speaker of the
House of the People thereon shall be final. 56

It is interesting to note the developments in this provision in the

Constituent Assembly. On October 27, 1947, the constitutional adviser to
the Constituent Assembly of India, Sir Benegal Narsing Rau, placed a Draft
Constitution before the Drafting Committee, which was prepared based
on the preliminary discussions undertaken in the Constituent Assembly.57
Article 75 of this draft pertained to money bills, and it provided under

54 Chakshu Roy, The Anti-Defection Law Has Failed. It Is Time to Scrap It, HINDUSTAN TIMES
(July 26, 2020), [Link]
failed-it-is-time-to-scrap-it/[Link]; Arvind Kurian
Abraham, , THE WIRE (Apr.
15, 2018), [Link]
speakers-court; Pradip Phanjoubam, The Gross Abuse of the Manipur Mandate, THE HINDU
(June 20, 2020), [Link]
manipur-mandate/[Link].
55 Sujit Choudhry, Opposition Rights in Parliamentary Democracies (Unpublished manuscript),

[Link]
ntary%20Democracies%20Sept%202020%20draft_0.pdf.
56 INDIA CONST. art. 110 cl. 3.
57 B. SHIVA RAO (ED.), THE FRAMING OF INDIA S CONSTITUTION: SELECT DOCUMENTS

3 (The Indian Institute of Public Administration 1967).

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POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:
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if any question arises whether a Bill is a Money Bill or not, the
decision of the Speaker of the House of the People thereon shall be final. 58

Rau had also included marginal notes with almost all the provisions,
mentioning the corresponding provisions from the Government of India
Act, 1935 and certain foreign constitutions. With Article 75, Rau had
mentioned Section 37 of the Government of India Act, 1935; Section 53,
Chapter 1 of the Commonwealth of Australia Constitution Act, 1900; and
Article 22 of the Constitution of Ireland, 1937.59 Interestingly, of the three,
only the Irish Constitution confers finality and conclusiveness upon the
decision taken by the Speaker. However, this decision is still subject to
internal review, which I will discuss later in this paper. This scheme of
finality was followed without any changes in the Draft Constitution
prepared by the Drafting Committee60 and then adopted as a part of the
Constitution as well. Therefore, the design chosen for India was completely
different from that of other constitutional documents as referred to by the
constitutional adviser. The finality conferred on the decision of the Speaker
under the Constitution was made subject to no other authority internal to
the Parliament, and this position remains the same even today.

Not only is there an absence of internal checks on the power of the Speaker
to certify a bill as a money bill, but there was also an absence of external
checks in the form of judicial review until very recently. Pratik Datta,
Shefali Malhotra, and Shivangi Tyagi writing before the Supreme Court

extensively discussed the jurisprudence of the Supreme Court on whether

it has the power to review the certification of the Speaker of a bill as a
money bill.61 Based on the Mangalore
Ganesh Beedi Works v. State of Mysore,62 Mohd. Saeed Siddiqui v. State of Uttar

58 Id. at 32.
59 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2019) 1 SCC 1, ¶ 1062 (per
Chandrachud, J.).
60 DRAFT INDIA CONST. (1948) art. 90 cl. 3.
61 Datta et al., supra note 25.
62 Mangalore Ganesh Beedi Works v. State of Mysore, 1963 Supp (1) SCR 275. A

constitution bench of the Supreme Court observed, though in obiter, that in light of
Article 212, which prohibits the validity of any proceedings in a state legislature from being

100
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Pradesh,63 and Yogendra Kumar Jaiswal v. State of Bihar,64 the authors concluded
the current legal position in India is tha
by the Speaker is beyond the judicial review powers of the Supreme Court 65

erroneous
understanding of several provisions of the Constitution of India but also owing to a refusal

that it has itself developed to check the abuse of legislative immunity 66 In the opinion
of the authors, judicial review of a wrongful certification of a bill as a
money bill must be permitted as such wrongful certification constitutes
breach of a cardinal constitutional provision 67 and
not just procedural irregularity, which is how the Court construed it.68

Therefore, the power of the Speaker to certify a bill as a money bill was
absolute in the absence of any internal as well as external checks, which
makes this office a hotbed for partisan decision-making. Similarly, when it

called in questions in courts, a law cannot be challenged on the grounds it offends Articles
197 to 199 and the procedure laid down in Article 202 of the Constitution.
63 Mohd. Saeed Siddiqui v. State of Uttar Pradesh, (2014) 11 SCC 415. The Speaker of the

Uttar Pradesh State Legislative Assembly certified a bill increasing the term of the
Lokayuktas and Up-Lokayuktas as a Money Bill. Dismissing the challenge to such
wrongful certification, the three-judge bench of the Supreme Court followed its decision
in Mangalore Ganesh Beedi Works and held that the question of whether a bill is a Money
Bill or not can be raised only in the State Legislative Assembly and not in courts.
64 Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183. The Speaker of the Orissa

State Legislative Assembly certified a bill constituting special courts for speedy trial of
cases involving allegations of accumulation of disproportionate amounts of assets and
properties by persons holding high political and public offices as Money Bill. A two-judges
bench of the Supreme Court, rejecting the challenge to the bill, held that wrongful
certification of a bill as a Money Bill is mere irregularity of procedure and does not
constitute substantive illegality.
65 Datta et al., supra note 25.
66 Id. at 102-103.
67

see M.S.M. Sharma v. Sri Krishna Sinha, AIR 1959 SC 395; Powers, Privileges and
Immunities of State Legislatures, In re (Special Reference No. 1 of 1964), AIR 1965 SC
745, ¶ 62; Ramdas Athawale (5) v. Union of India, (2010) 4 SCC 1, ¶ 36; In the case of
Applying the principle
d has by implication been

68 See Mohd. Saeed Siddiqui v. State of Uttar Pradesh, (2014) 11 SCC 415, ¶ 37.

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comes to deciding whether a division of votes must be allowed, even
though the respective Lok Sabha69 and Rajya Sabha Rules70 provide that
the Chairpersons must proceed for division of votes by different methods
whenever the opinion of the Chairperson in relation to a voice vote is
challenged, they create no redressal mechanism to challenge the decision
of the Chairperson as to whether demand for the division was made or to
challenge the legality of the outcome of such a process merely on the
grounds this procedural lapse. This creates a possibility for abuse of the
process by the Chairpersons, as we have seen above. In this background,
the next part explores certain possible solutions that could be adopted to
correct the situation and ensure independence in the functioning of the
Chairpersons.

POSSIBLE SOLUTIONS TO CHECK PARTISAN FUNCTIONING

BY THE CHAIR

As the above discussion has shown, changes are required in three respects
in an attempt to check the partisan functioning of the Chair. One, changes
that isolate the Chairpersons from the clutches of the political party on
whose ticket they were elected to the Parliament; two, changes which create
internal checking mechanisms on the powers of the Chairpersons; three,
changes which create external checking mechanisms in the form of judicial
review on the powers of the Chairpersons. I discuss these in seriatim below.

A. CONSTITUTIONAL AND INSTITUTIONAL DESIGN CHANGES

Before any constitutional and institutional design changes could be mulled

upon, certain fundamental facts about the position of Chairpersons need
to be recollected. First, at the time of their election to the Parliament, the
Chairpersons usually belong to a political party. Second, in most cases,
legislators belonging to the ruling party or the ruling coalition are elected
as the Chairpersons as they can function favourably.71 Third, under the

69 Rules of Procedure and Conduct of Business in Lok Sabha, R.367-367B (16th ed., 2019).
70 Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha),
R.252-254 (9th ed., 2016).
71 M.R. Madhavan, Parliament in DEVESH KAPUR, PRATAP BHANU MEHTA AND MILAN

VAISHNAV (ED.), RETHINKING PUBLIC INSTITUTIONS IN INDIA 79 (Oxford University

Press 2017).

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present constitutional framework, the Chairpersons continue their

membership in their parent political party despite being elected as
Chairpersons. Fourth, the Chairpersons need the support of their political
party to seek tickets for the next election to Parliament. Read cumulatively,
the present framework binds the Chairpersons tightly to their political
party. As Sardar Hukum Singh, who has been a Speaker of the Lok Sabha,
commented:72

The Speaker has to seek election every five years. To get himself elected, he must

favours. If the Speaker agrees, then he must be charged with partiality. If he

refuses, then next time there will be pressure in his party that he must be replaced.
The Speaker cannot sever his connection absolutely from the party, as he has to
seek its patronage again. As long as he maintains his association, or even simple
membership of the party, there always remains a suspicion in the minds of the
opposition that the presiding officer is partisan.

Therefore, the first step towards securing a relatively more independent

and impartial Chair would be to undertake certain constitutional and
institutional design changes. The first change in this regard could be in
terms of the British parliamentary traditions, wherein the Speaker of the
House of Commons, upon being elected as the Speaker, resigns from their
political party.73 Furthermore, to secure the future political ambitions of
the Speaker, a political convention may be developed by way of agreement
among the existing political parties providing that no candidate from any
political party is fielded against the Speaker in the next elections.74

Previously, similar changes were also mooted by the Committee of

Presiding Officers appointed at the 1967 conference of Presiding Officers,
better known as the Page Conference after the name of its Chairperson
V.S. Page, to explore possible conventions that could be adopted for better

72 Sarkar Hukum Singh, The Speaker in India, 48 THE PARLIAMENTARIAN 9, 10 (1967), cited
in Hari Chand, Powers of the Speaker, 16(1) J. INDIAN L. INST. 128, 132 (1974).
73 The Speaker of the House of Commons, UK PARLIAMENT, [Link]

balassets/documents/commons-information-office/[Link].
74 PHILIP LAUNDY, PARLIAMENTS IN THE MODERN WORLD 49-50 (Dartmouth

Publishing Company 1989).

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functioning of the legislature.75 The Committee considered the position of
the Chair and noted that the independence and impartiality of the
Chairperson are indispensable conditions for the proper functioning of
parliamentary democracy. It is important, the Committee observed, that
upon being elected to the Chair, the Chairpersons would sever ties with
their political party, and other political parties would ensure that the
Chairpersons could seek re-election from their constituency without any
contestation.76 Similarly, writing in 1974, Prof. Hari Chand had also argued
for similar design changes. After studying the British tradition and the
suggestion regarding the creation of a special constituency of Parliamentary
Hill, he concluded that it would be appropriate to follow the dual British
traditions in India.77 This would ensure that, on the one hand, the
Chairpersons are not formally bound by the party directives and can
independently render their functions, while on the other, they would not
be reliant on any political party for continued membership of the
Parliament.

This scheme is not entirely foreign to the current Indian constitutional

framework. Paragraph 5 of the Tenth Schedule to the Constitution, which
deals with the anti-defection law, saves the Chairpersons from immediate
disqualification from the house if they resign from their respective political
parties but do not join any other.78

However, it must be remembered that merely isolating the Chairpersons

from their political party may not lead to an ideal situation. It is possible
that given the majoritarian selection of the Chairpersons, the ruling party
will field such a candidate who would be ideologically as well as politically
committed to the ruling party. It is also possible that the ruling party might

75 M.N. KAUL & S.L. SHAKDHER (ANOOP MISHRA ED.), PRACTICE AND PROCEDURE OF
PARLIAMENT 106-17 (7th ed., Lok Sabha Secretariat 2016).
76 Id.
77 Hari Chand, Powers of the Speaker, 16(1) J. INDIAN L. INST. 128, 132-135 (1974). But see

S.M. Sayeed, Role of the Speaker of the U.P. Assembly A Case Study of the Relationship Between
the Speaker and the Assembly Since 1952, 33(2) INDIAN J. POL. SCI. 218 (1972), where the
author concluded that confidence of the legislators in the impartiality of the Speaker

constituency uncontested and his resignation on being elected as the Speaker.

78 INDIA CONST. sch. 10, ¶ 5.

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not re-elect the same candidate again as the Chairperson if they had proven
hostile in the last term. Therefore, unless most of the political parties agree
to develop political conventions based on these norms, something which
seems an unrealistic thought, given the present political climate, the only
way to bring about these changes seems to be by constitutionally
entrenching them. Moreover, unless such entrenchment is secured by the
Constitution, there remains a possibility that a new government might
exercise a simple majority to undo these changes. But why would a ruling
party volunteer to bring such changes when in power? It might perhaps be
the case that, considering an expected loss in the next election, the
incumbent government might push for such changes to secure legislative
due process while it sits in the opposition. This is only a speculative answer.
There do not seem to be enough political incentives for the government to
change the existing framework.

Therefore, constitutional and institutional design changes to secure an

independent and non-partisan Chair seem to be a vulnerable proposition,
at least when introduced as a sole-standing measure. Their successful
introduction and continued implementation are based on multiple political
considerations of the time in which they were first introduced and the
future.79 As Wojciech Sadurski has observed in the context of Poland,
institutional design by itself, how so ever good it might be, is not sufficient
to arrest the erosion of democracy and rule of law by strongly determined and socially
popular autocrats 80 Instead, for a constitutional democracy to function
properly:81

Institutions must be underwritten by norms which are by-and-large shared, and

by common understandings about what counts as a norm violation, even if formal

be captured by written rules constitutive of these institutions.

79 See Vikram Narayan & Jahnavi Sindhu, A Case for Judicial Review of Legislative Process in
India?, 53(4) WORLD COMP. L. 358, 379 (2020).
80 Wojciech Sadurski, On the Relative Irrelevance of Constitutional Design: Lessons from Poland,

Sydney Law School Legal Studies Research Paper Series, No. 19/34 (2019).
81 Id.

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These suggested changes must, therefore, be coupled with changes that
additionally ensure internal as well as external checks on the exercise of
power by the Chairpersons.

B. CREATING A NEW POWER SOURCE FOR CHECKING THE POWERS

OF THE SPEAKER

As discussed above, the Constitution and the respective parliamentary rules

attach finality to the decisions of the Chairpersons. When it comes to the
certification of a bill as a money bill, the constituent assembly debates
highlight that the purpose of conferring such finality upon the certification
of the speaker was not to make it a final determinative authority on money

Therefore, the finality conferred upon the decision of the Speaker as to whether a Bill is
a Money Bill or not is aimed at avoiding any controversy on the issue in the Rajya Sabha
and before the President 82 However, given the way this power has been
abused in multiple instances, it is important to create sufficient internal
checks. Otherwise, by claiming to avoid any controversy, the Speaker could
sanction any bill as a money bill in direct violation of the constitutional
text.

UK
this regard, as their legal framework for money bills is somewhat similar to

In the UK, Section 1 of the Parliament Act, 1911 states that whenever a
money bill is sent to the House of Lords or presented to the Queen for
assent, it must be endorsed with a certificate by the Speaker of the House
of Commons to the effect that the said bill is a money bill.83 Such a
certificate is deemed to be conclusive for all purposes and cannot be
questioned in any court of law.84 However, to internally balance this
before giving
his certificate the Speaker shall consult, if practicable, two members to be appointed from

82 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2019) 1 SCC 1, ¶ 1069 (per
Chandrachud, J.); Datta et al., supra note 25.
83 Parliament Act 1911, 1 & 2 Geo. 5 c. 13, § 1(3).
84Id. § 3.

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85

-partisan, the
British constitutional framework creates some form of internal checks on
the power of the Speaker to certify a bill as a money bill.

The practice of certifying a bill as a money bill has largely remained

uncontroversial in the UK. It has been observed that nearly half of the
finance bills sent to the House of Lords since 1911 were not even certified
as a money bill.86 This is equally true for the practice of taking unrelated
matters with finance bills. While the British parliamentary texts do not
comment on the actions that the House of Lords might take to address its
breach of privilege by way of tacking unrelated matters with money bills,
the Standing Order No. 51 of the House of Lords do forbid such actions
in regard to bills of aids and supplies.87 Therefore, when the Finance Bill,
1976, which vested police powers with the tax inspectors in the form of
powers to demand information and search premises, was certified as a
money bill, a complaint was filed in the House of Lords challenging such
tacking as unparliamentary and untenable in law. However, the Practice
and Procedure Committee of the House of Lords rejected this allegation.
In fact, the House of Lords has not invoked this Standing Order to reject
any bill since 1807.88

The Irish Constitution creates a more comprehensive framework in this

the Chairman of D il ireann (the
Lower House of the Irish Parliament) shall certify any Bill which, in his opinion, is a
Money Bill to be a Money Bill, and his certificate shall, subject to the subsequent
provisions of this section, be final and conclusive. 89 As such a certification impacts
the deliberative function of the Upper House, Article 22 empowers the
Seanad ireann (the Upper House of the Irish Parliament) to pass a
resolution at a sitting when not less than thirty members are present,

85Id. § 1(3).
86 THOMAS ERSKINE MAY, ERSKINE MAY: PARLIAMENTARY PRACTICE, ¶ 37.31, (David
Natzler et. al. eds., LexisNexis Butterworths 25th ed. 2019).
87 The Standing Orders of the House of Lords Relating to Public Business, Standing Order

the annexing of any clause or clauses to a bill of aid or supply, the matter of which is foreign to
and different from the matter of the said bill of aid or supply, is unparliamentary and tends to the
destruction of constitutional government.
88 MAY, supra note 86.
89 CONSTITUTION OF IRELAND 1937 art. 22 cl. 2(1 o).

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requesting the President to refer the question about whether the bill in
question is a money bill to a Committee of Privilege.90 Upon consultation
with the Council of States, which is a special body constituted to aid and
counsel the President,91 if the President decides to accede to the said
request, he appoints a Committee of Privilege consisting of an equal
number of members from both the Houses of Parliament and a judge of
the Supreme Court to act as the Chairman. Such appointments must be
made after consultation with the Council of States.92 The Committee so
constituted must report its decision to the President within twenty-one
days, and such a decision would be considered final and conclusive.93
However, in case the President rejects the request of the Seanad ireann
or the Committee fails to submit its report within the given time frame of
twenty-one days, the decision of the Chairman of D il ireann shall stand
confirmed 94

It is argued that India also needs to adopt a framework along the lines of
the Irish Constitution. As the Indian President, unlike the Irish President,95
is indirectly elected and is mandated to function with the aid and advice of
the Council of Ministers,96 perhaps the requirement of seeking presidential
consent before a question about a money bill is referred to a select
committee could be avoided. Instead, it could be envisaged that if the Rajya
Sabha passes a resolution with the support of a majority of its members, or
the Lok Sabha passes a resolution with the support of, say, twenty per cent
of its members, then the question regarding the correctness of the

the members of the Lok Sabha. This would institute a form of sub-majority
rule, which enables the opposition parties to set the parliamentary agenda
force public accountability and transparency upon majorities 97

90 CONSTITUTION OF IRELAND 1937 art. 22 cl. 2(2o).

91 CONSTITUTION OF IRELAND 1937 art. 21.
92 CONSTITUTION OF IRELAND 1937 art. 22 cl. 2(3 o).
93 CONSTITUTION OF IRELAND 1937 art. 22. cl. 2(4 o)-(5o).
94 CONSTITUTION OF IRELAND 1937 art. 22 cl. 2(6 o).
95 CONSTITUTION OF IRELAND 1937 art. 12 cl. 2.
96 INDIA CONST. art. 74.
97 Adrian Vermeule, Submajority Rules: Forcing Accountability Upon Majorities, 13(1) J. POL.

PHIL. 74 (2005).

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an institution that is committed to making final

substantive decisions by majority or supermajority vote, for the standard reasons, might
work better if minorities have the power to force accountability upon the majority 98
The reason for the differential majority requirement in the two Houses of
Parliament is based on the core functions of the two Houses and how they
are elected. As a majority of members of the Lok Sabha would belong to
the ruling/coalition, it would be ineffective to fix a fifty per cent majority
requirement for passing such a resolution. A low threshold then not only
ensures that opposition parties have an effective say in ensuring the proper
functioning of the house, but it also ensures that the power of the Lok
Sabha to decide on money matters, including whether a particular bill
qualifies as a money bill, is not manipulated by the majoritarian executive.

As against Lok Sabha, the Rajya Sabha is a permanent body whose

members are elected by the elected members of the state legislative
assemblies. Therefore, it is only when a particular political party wins both
the national election and a majority of state elections simultaneously for at
least two terms that it can capture the Indian Parliament. Moreover, as the
Rajya Sabha has been conferred a secondary role in matters mentioned
under Article 110 of the Constitution, therefore, a higher threshold of fifty

certification to the select committee of Lok Sabha.

The membership of this Committee could be based on equal

representation of all political parties that have won, say, at least ten seats or
a vote share of a minimum of three per cent. The maximum cap on
membership could be seven members because it must be remembered that
this committee is constituted only to deliberate upon the correctness of the

take into consideration the opinion of the entire house, for instance,
passing any law.

Therefore, capping the membership to the seven biggest political parties

would ensure that while all the power blocks of the sitting Lok Sabha are
represented in the committee, its proceedings are not unnecessarily
disrupted by members representing different and diverse interests.
Moreover, the membership of the committee must be restricted to only the

98 Id. at 79.

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Lok Sabha members, and it should not be a joint parliamentary committee
to respect the principle that the control over the money must be restricted
to the directly elected house.99
right to deliberate on each bill also gets impacted owing to the certification
of a bill as a money bill, therefore, it would still be permitted to refer a
question about the correctness of the S
committee of the Lok Sabha. This design change would ensure that both
Rajya Sabha and the opposition parties are sufficiently empowered to check
the abuse of power by a partisan Speaker.

However, despite such checks, the ruling party and its alliance partners
might be the biggest gainers in a particular election by virtue of which they
have the requisite number in the select committee to uphold the wrongful
certification of a bill as a money bill by the Speaker. In such circumstances,
the requirement of having an external check in the form of judicial review
becomes imminent. The next section first discusses the changing
jurisprudence of the Indian courts regarding judicial review of the decisions
of the Speaker. It then develops a normative argument that could be
employed by the courts to exercise jurisdiction over any matter arising out
of the abuse of power by the Chairpersons.

C. JUDICIAL REVIEW OF THE CHAIR S DECISIONS

In Part 3 of the paper, we discussed how the Supreme Court had, in

Mangalore Ganesh Beedi Works v. State of Mysore,100 Mohd. Saeed Siddiqui v. State
of Uttar Pradesh,101 and Yogendra Kumar Jaiswal v. State of Bihar,102 denied

bill by stating that any issues in this process would only constitute a
procedural irregularity and not substantive illegality. A change in this
approach of the Court started to happen in September 2018.

99 B. SHIVA RAO, THE FRAMING OF INDIA S CONSTITUTION: A STUDY 427 (The Indian
the general principle approved by the Constituent
Assembly was that financial control over the executive would be exercised by the House of the People
100 Mangalore Ganesh Beedi Works v. State of Mysore, 1963 Supp (1) SCR 275.
101 Mohd. Saeed Siddiqui v. State of Uttar Pradesh, (2014) 11 SCC 415.
102 Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183.

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The first sub-part of this section traces the development of this renewed

money bills. The second sub-part discusses how this renewed approach
remains short of addressing all concerns arising from partisan functioning
by the Chair and proposes changes to fill this gap.

Procedural Irregularity Substantive Illegality

In Justice K.S. Puttaswamy (Retd.) v. Union of India,103 while deciding on the

constitutionality of the Aadhaar Act, two of the five judges of the Supreme
Court dissented against these three decisions by stating that a wrongful
certification by the Speaker constitutes illegality and a constitutional
violation.104

Despite these opinions, as the majority did not comment on the question
of whether a wrongful certification by the Speaker constitutes substantive
illegality, the law remained unchanged.105 However, Suhrith Parthasarathy
has suggested that there were subtle and indirect indications in the majority

certification.106 In November 2019, this view was also endorsed by Justice

Chandrachud in his separate opinion in Rojer Mathew v. South Indian Bank
Limited,107 [o]n an overall reading of the judgment of Sikri,
J. it is not possible to accede to the submission of the learned Attorney that the issue of
reviewability of the certificate of the Speaker is left at large by the decision of the
majority 108

103 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2019) 1 SCC 1.

104 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2019) 1 SCC 1, ¶ 901 (per Bhushan,
J.) &¶ 1092 (per Chandrachud, J.).
105 For a detailed discussion, see Suhrith Parthasarathy, The Aadhaar Judgment and the

Constitution III: On the Money Bill (Guest Post), INDIAN CONST. L. PHIL. BLOG (Oct. 1,
2018), [Link]
the-constitution-iii-on-the-money-bill-guest-post/.
106 See Suhrith Parthasarathy, Guest Post: On Money Bills, INDIAN CONST. L. PHIL. BLOG

(Apr. 1, 2019), [Link]

money-bills/?fbclid=IwAR0T7-8pZbme-sZaUCaMm-
HgQA8ER_lwSZxIWU1GaMFGYw2Ve7mXCXeOV7g.
107 Rojer Mathew v. South Indian Bank Limited, (2020) 6 SCC 1.
108 Id. ¶ 292 (per Chandrachud, J.).

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In the same decision, the majority of the bench also settled the judicial
it would hence be gainsaid that gross violations
of the constitutional scheme would not be mere procedural irregularities and hence would
be outside the limited ambit of immunity from judicial scrutiny under Article 122(1).
In the case at hand, the jurisdiction of this Court is, hence, not barred 109 With this

Mangalore Ganesh Beedi Works, Mohd. Saeed Siddiqui and Yogendra Kumar
Jaiswal.110

This decision of the Court had another significant impact. Until this
decision, the majority of cases in which the Court had exercised
jurisdiction, though limited, despite the fact that the decision of the
constitutional authorities was deemed as final and conclusive, concerned
either the exercise of judicial power or involved the aspect of the formation
of an opinion based on legally sound evidence and reasons. For instance,
in Union of India v. Jyoti Prakash Mitter, the Court held that it can examine
the decision of the President on the determination of the age of a High
the President acting under Article 217(3) performs a judicial
function of grave importance under the scheme of our Constitution 111

In Union of India v. Tulsiram Patel, the question before the Court was about
the finality of the decision of the disciplinary authority holding that it was
not reasonably practicable to hold an inquiry in the matters of dismissal,
removal or reduction in rank of a civil servant employed under the Union
or the State Government. It was held that the finality conferred upon such
a decision under Article 311(3) of the Constitution is not binding upon the
Court.112

In State of Rajasthan v. Union of India,113 the question before the Court was
related to the validity of a proclamation of state emergency under Article
356 of the Constitution. In this case, the Court upheld the judicial review
of the Presidential order despite it being accorded finality. The Court held
that though it might not enter the question of whether the satisfaction was

109 Id. ¶ 99.

110 Id. ¶ 103.
111 Union of India v. Jyoti Prakash Mitter, (1985) 3 SCC 398, ¶ 32.
112 Union of India v. Tulsiram Patel, (1985) 3 SCC 398.
113 State of Rajasthan v. Union of India, (1977) 3 SCC 592.

112
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improper or unjustified, it could still review the existence of satisfaction

based on whether the reasons cited by the President are extraneous,
irrelevant, based on illegal consideration and mala fide intentions.114

Similarly, in Kihoto Hollohan v. Zachillu,115 the question before the Court was
about the constitutional validity of the anti-defection law and the finality
in the
Indian constitutional dispensation the power to decide a disputed disqualification of an
elected member of the House is not treated as a matter of privilege and the power to resolve
such electoral disputes is judicial and not legislative in nature. 116 This allowed the
Court to conclude that the decision of the Speaker regarding
disqualification of a legislator on account of defection would be a decision
in the exercise of judicial power and thus, subject to judicial review.117

certification on the ground of substantive illegality in Aadhaar and Roger

Mathew, the Court also held that finality attached to even a purely legislative
decision could be made subject to judicial review if such legislative decision
violates the Constitution. As Justice Chandrachud noted in his dissenting
opinion in the Aadhaar judgment:118

A constitutional function is entrusted to the Speaker to certify a Bill as a Money

Bill under Article 110(3), to which the attributes of a judicial power do not
apply. Indeed, the power which is entrusted to the Speaker under Article 110(3)
is integral to the legislative process. But, the fact that the authority which a
constitutional functionary exercise is not of a judicial character is not sufficient to
lead to the conclusion that a finality clause governing the exercise of that power
makes it immune from judicial review. Where the entrustment of the power is
subject to the due fulfilment of constitutional norms, the exercise of jurisdiction is
amenable to judicial review, to the extent necessary to determine whether there has
been a violation of a constitutional mandate.
(emphasis added)

114 Id.
115 Kihoto Hollohan v. Zachillu, 1992 Supp (2) SCC 651.
116 Id. ¶ 88.
117 Id. ¶ 111.
118 Justice K.S. Puttaswamy (Retd.) v. Union of India, (2019) 1 SCC 1, ¶ 1075 (per

Chandrachud, J., dissenting opinion).

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POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:
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CAN BE ADDRESSED
Recently, the Calcutta High Court further expanded the scope of judicial
review of legislative processes by including the violation of a constitutional
convention119 as a valid ground for review.120 In
Speaker, West Bengal Legislative Assembly and Ors.,121 one of the questions
before the High Court was whether it has the jurisdiction to hear a
challenge to the appointment of Mukul Roy, a legislator who had de-facto
defected from the BJP to the ruling All India Trinamool Congress, as the
PAC
that the convention to appoint a legislator from the opposition party as the
Chairperson of PAC has been ascribed the status of a constitutional
convention, the Court observed that any violation of this convention
case of procedural irregularities, which could debar this Court from
entertaining the petition in terms of Article 212(1) of the Constitution of India. It is a
case of blatant illegality 122

Decisions

Despite such expansion of jurisdiction by the Supreme Court and the

Calcutta High Court, I argue that the courts have still kept the scope of
enquiry vague and narrow. This expansion of jurisdiction has been limited

119 The idea of constitutional convention as forwarded by Ivor Jennings has been adopted
by the Indian judiciary. While discussing his works, the Supreme Court noted in K.
Lakshminarayanan v. Union of India, (2020) 14 SCC 664, ¶¶ 62- Sir Ivor Jennings in his
treatise has elaborately dealt with the conventions of the Constitution. While explaining the purpose of the

which clothes the dry bones of the law; they make the legal Constitution work; they keep it in touch with

the thing because it accords with the prevailing political philosophy. It helps to make the democratic system
operate; it enables the machinery of State to run more smoothly; and if it were not there, friction would
result.
120 See Anmol Jain, Guest Post: Judicial Review of Legislative Process Analyzing Calcutta High
, INDIAN CONST. L. PHIL. BLOG (Nov. 16, 2021),
[Link]
legislative-process-analyzing-calcutta-high-courts-decision-in-ambika-
roy%EF%BF%BC/.
121 Ambika Roy v.

WPA (P) 213 of 2021 (Calcutta H.C.).

122

WPA (P) 213 of 2021, ¶ 67 (Calcutta H.C.).

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violation of a constitutional mandate constitutional

convention
violation of parliamentary rules
of votes despite express demands, within the purview of judicial review. As
Art the validity of any proceedings in
Parliament shall not be called into question on the ground of any alleged irregularity of
procedure 123 The answer to this question, therefore, would be based on how
the courts construe the violation of the parliamentary rule involved
whether it is construed as a procedural irregularity or substantive illegality,
the determination of which is subject to judicial discretion as the evolving
jurisprudence on judicial review of money bills shows.

Vikram Narayan and Jahnavi Sindhu have discussed a different approach

to avoid the deployment of such discretionary methodology while deciding
on the possibility of judicial review of legislative processes in India. 124 In
this approach, they classify judicial review of legislative processes into
direct and indirect forms of judicial review.125 The direct form of judicial
review takes place when the validity of a law is challenged solely on the
ground that it was enacted without following the legislative due process.126
In indirect judicial review, the court considers how the lawmaking process
took place while enacting the law as one of the grounds while hearing a
challenge on the substance of the law.127 After tracing the international
scholarship and jurisprudence on the judicial review of legislative
processes, the authors argue:128

the manner in which the provisions [of the Indian Constitution] are structured
suggests that the limits on judicial power provided for in Article 122 apply in
respect of rules devised by the Houses themselves and not in respect of procedural
rules entrenched in the Constitution or with respect to constitutional values.

123 INDIA CONST. art. 122 cl. 1.

124 Vikram Narayan & Jahnavi Sindhu, A Case for Judicial Review of Legislative Process in India?,
53(4) WORLD COMP. L. 358 (2020).
125 Id.
126 Id. at 383-384.
127 Id. at 384-388.
128 Id. at 391.

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By highlighting the judicial differentiation between procedural irregularity
and substantive illegality, the authors note:129

the Supreme Court has repeatedly relied on this distinction to hold that Article
122 precludes the judiciary from enforcing the rules made by the Houses of
Parliament under Article 118, but does not affect the power of the Court to check
violations of norms relating to the legislative process that may be traced back
directly to the Constitution.

In this manner, the authors argue for the institutionalisation of a direct

form of judicial review of the legislative process in India limited to the
violation of those procedural aspects which are entrenched in the
Constitution. They specifically note that in this approach, the court would
not be examining the compliance of the parliamentary rules while enacting
the impugned law.130 Therefore, this approach is similar to the Supreme
Aadhaar and Roger Mathew.

The authors then discuss the applicability of the indirect form of judicial
add

standards of review; and (2) how it applies the proportionality test. 131 Importantly,
the authors suggest an expansion in the variety of due process violations
that the Court could consider under this approach:132

By applying this version of indirect [judicial review of legislative process], the

judiciary could take into consideration whether a law was actually debated,
whether opposition voices were heard, whether the legislature relied on expert
evidence and whether it scrutinised the impact of the law on fundamental rights.
This sensitivity to the actual legislative process could help the Court distinguish
between a law that has been enacted through a highly participative, open and
deliberative process involving experts and one that has been rushed through by the
political executive by flouting (non-constitutional) procedural rules that facilitate
minimal deliberation.
(Emphasis added)

129 Id. at 392.

130 Id. at 394.
131 Id. at 394-401.
132 Id. at 396.

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However, despite its expansiveness, this approach lacks what the direct
approach allowed for the nullification of law only on the ground of
violation of due process in lawmaking.133 Violation of a parliamentary rule
becomes just one of the considerations before the court. Therefore, I argue
that there is a need to adopt a broader theory for the determination of the
existence and scope of judicial review of legislative processes. Such a theory
must have at its foundation a normative argument that combines the
expansiveness of the indirect approach with the assertiveness of the direct
approach.

A recent work by Stephen Gardbaum titled Comparative Political Process

Theory, which also inspired the title of this paper, provides some important
insights for the development of such a broader theory.134
comparative political process theory refines and further expands on the
earlier work done by John Hart Ely on judicial review as a tool for the
protection of representative democracy.135 The theory broadens the types
of political process malfunctions that a representative constitutional
democracy might face on account of autocratic governance. As against
-pronged understanding of political process failures one, where
the incumbent government attempts to entrench itself to avoid political
change in power; and two, where the majority suppresses systematically
disadvantages all the processes by and through
which public power is allocated, exercised, and held to account
comparative political process theory.136 Based on this understanding, he
then develops a normative theory of judicial review and the specific manner
in which the courts could secure the structures and processes of
representative democracy, which gives central importance to the
deliberative model of lawmaking.

One of the political process failures that Gardbaum discusses in this regard
non-deliberativeness of the legislature
executive- insufficient notice

133 See id. at 396-397.

134 Stephen Gardbaum, Comparative Political Process Theory, 18(4) INT L J CONST. L. 1429
(2020).
135 JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW

(1980).
136 Gardbaum, supra note 134.

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POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:
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or opportunity for deliberation 137 He specifically refers to certain developments
in Poland,138 the United States,139 and Israel,140 where governments fast-
tracked the lawmaking process. This was done by outrightly reducing or
restricting debate on the legislative proposals, excluding opposition parties

website, holding sessions beyond usual parliamentary timings, and

providing insufficient time to the legislators to read legislative proposals et
cetera. The actions of the Chairpersons of the two Houses of Indian
Parliament, as we discussed above, squarely fall under this category.
Wrongfully certifying a bill as a money bill, not at one but in multiple
instances, was an attempt to curb the deliberative role of the Rajya Sabha
and not allowing division of votes was another attempt towards fast-
tracking the lawmaking process.

This also falls under another political process failure the failure of the
legislature to hold the executive accountable. After discussing the
developments in South Africa, where the then President Jacob Zuma
attempted to dominate and weaponize the National Assembly to absolve
himself of the corruption charges, and the United Kingdom, where Prime
Minister Boris Johnson advised the Queen to prorogue the Parliament at a
either (likely
partisan) unwillingness to undertake this task or inability to do so due to executive
obstruction can rise to the level of a malfunction that may justify judicial, and other forms
of, intervention 141 The effect of denying division of votes is similar to an
illegal prorogation of the house. In both situations, the legislature becomes

137 Id.
138 Wojciech Sadurski, How Democracy Dies (In Poland): A Case Study of Anti-Constitutional
Populist Backsliding, Sydney Law School Legal Studies Research Paper 18/01 (2018);
Wojciech Sadurski, Constitutional Crisis in Poland, in MARK A. GRABER, SANFORD
LEVINSON AND MARK TUSHNET (EDS), CONSTITUTIONAL DEMOCRACY IN CRISIS? 267-
8 (Oxford University Press 2018); WOJCIECH SADURSKI, POLAND S CONSTITUTIONAL
BREAKDOWN 141 (Oxford University Press 2019).
139 Gardbaum, supra note 134.
140 Ittai Bar-Siman-Tov,

SC Offers a Novel Approach to Regulating Omnibus Legislation, I-CONNECT BLOG (Dec. 13,
2017), [Link]
process-of-trumps-tax-bill-israeli-sc-offers-a-novel-approach-to-regulating-omnibus-
legislation/.
141 Gardbaum, supra note 134.

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unable to seek justifications from the executive for their actions, and
legislative scrutiny is avoided. The executive is then empowered to proceed
with its legislative proposals despite its failure to fulfil the due process of
lawmaking and satisfy the legislature of the merits of such proposals. It
strikes at the root of the values and norms of representative lawmaking.

pure
procedural review the role of the courts is to protect the legislative-executive
separation of powers and the distinct role of the legislature from executive overreach 142
In this weak-form judicial review, the role of the courts would be limited
remedying and identifying political failures
the other political branches to pursue.143 The courts would not be indulging
in judicial overreach but attempting to secure the fundamental principles
of parliamentary democracy. Their decisions would be such that, without
entering the domain of the other branches, they would aim toward
144
protecting the integrity Through this approach,
the courts could ensure due process in the lawmaking process and extend
external support to the executive-dominated Parliament in performing its
fundamental functions, which might be unable to do so owing to its
erosion, corruption or capture 145 The adoption of this approach in India
would justify judicial review of legislative functions without relying on the
distinction between a substantive illegality and procedural irregularity. Any
procedural lapse that impacts the participatory, deliberative and
representative model of lawmaking would be subject to judicial review.
Therefore, if the Deputy Chairman of Rajya Sabha wrongfully denies the
division of votes on any motion put forth by the opposition despite
demands for the same, it could be considered a political process failure and
subject to judicial review. Any decision taken pursuant to such a defective
process could be nullified.

A few decisions by foreign courts could provide important guidance in this

regard. In 2017, the Israeli Supreme Court struck down a tax law stating
that the law was passed in haste and the Knesset members were not
provided with a real opportunity to understand, debate, discuss, formulate

142 Id.
143 Id.
144 Id.
145 Id.

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POLITICAL PROCESS FAILURE IN THE INDIAN PARLIAMENT:
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CAN BE ADDRESSED
and present their opinions on the bill.146 The Court observed that this was
a substantive defect, which went to the heart of the proceedings.147
Therefore, in striking down the law, the aim of the Court was not to
substantively comment on the specifics of the law but to uphold the
principles and procedures of lawmaking which respect proper participation
and deliberation on all legislative proposals.

Similarly, the United Kingdom Supreme Court, in Cherry/Miller (No. 2),

while holding the advice rendered by Prime Minister Johnson to the Queen
the Parliament would have
the opportunity to debate the Go -up to
the EU Council 148 unlawful null and of no effect 149 it noted that:150

a decision to prorogue Parliament (or to advise the monarch to prorogue

Parliament) will be unlawful if the prorogation has the effect of frustrating or
preventing, without reasonable justifications, the ability of Parliament to carry
out its constitutional functions as a legislature and as the body responsible for the
supervision of the executive.

One can also witness the Indian judiciary exploring the possibilities of this
approach. Ashish Shelar v. The Maharashtra Legislative Assembly151 involved a
challenge to a resolution of the Maharashtra Legislative Assembly
suspending twelve Members of the Legislative Assembly for one year,
citing their unruly behaviour. The Supreme Court quashed the resolution
noting, inter alia, that long suspensions, particularly those extending beyond
the ongoing session of the house, would:152

146 Quantinsky v. The Israeli Knesset, HCJ 10042/16 (2017); See Yaniv Roznai,
Constitutional Paternalism: The Israeli Supreme Court as the Guardian of the Knesset, 51(4) WORLD
COMP. L. 417 (2018).
147 See Quantinsky v. Knesset (Summary), Versa, [Link]

/quintinsky-v-knesset-summary.
148 R (on the application Miller) (Appellant) v. The Prime Minister (Respondent) and

Cherry and others (Respondents) v. Advocate General for Scotland (Appellant), [2019]
UKSC 41, ¶ 17 (on appeals from [2019] EWHC 2381 (QB) and [2019] CSIH 49).
149 Id. ¶ 69.
150 Id. ¶ 50.
151 Ashish Shelar v. The Maharashtra Legislative Assembly, WP (Civil) No. 797 of 2021.
152 Id. ¶ 48.

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impact the democratic setup as a whole by permitting the thin majority

government (coalition government) of the day to manipulate the numbers of the
Opposition Party in the house in an undemocratic manner. Not only that, the
Opposition will not be able to effectively participate in the discussion/debate in
the house owing to the constant fear of its members being suspended for longer
period. There would be no purposeful or meaningful debates but one
in terrorem and as per the whims of the majority. That would not be healthy for
the democracy as a whole.

As I have argued elsewhere, this approach of the Supreme Court has great
potential. It emphasises that any legislative action that results in
undemocratic processes impacts the due procedure of functioning of the
legislature and creates impediments in the parliamentary form of
governance could be subjected to judicial challenge and liable to be held
unconstitutional.

It requires necessary compliance with parliamentary procedures if their

non-observance leads to undemocratic results. If extended to its logical
conclusion, this approach could justify courts in even questioning the
validity of any substantive legislative action undertaken without observing
due adherence to parliamentary procedures.153

These decisions and the political process theory argue that the
parliamentary lawmaking procedure is equally important as the substantive
content of the law. If the executive is allowed a free pass to manipulate the
independent Chair of the two Houses of Indian Parliament, the only
casualty would be the deliberative function that the legislature performs
and the ability to check and seek justifications from the executive. It would
be tantamount to the capture of the legislature by the executive. The
independence of the Parliament is equally important as the independence
of other institutions, such as the judiciary and the electoral commissions.

If the legislative process is compromised, it will provide a frictionless

opportunity for the executive to push any law without respecting the
153 See Judicial Review
of the Suspension of MLAs by the House: Another Step Towards the Political Process Doctrine,
INDIAN CONST. L. & PHIL. BLOG (Feb. 5, 2022), [Link]
/2022/02/05/guest-post-judicial-review-of-the-suspension-of-mlas-by-the-house-
another-step-towards-the-political-process-doctrine/.

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STUDYING ABUSE OF POWER BY THE CHAIR AND HOW IT
CAN BE ADDRESSED
representative model of lawmaking. Therefore, any legislative action which
inhibits the due process of lawmaking must be subjected to judicial review.
The fact that the violation involved is that of a parliamentary provision
must not deter the courts from holding such a violation illegal. This kind
of judicial review would be weak in the sense that it would not be
authoritatively commenting on the substantive interpretation of the law or
the question of what the law ought to be. However, this would necessarily
strengthen the institutions to perform their fundamental duties without any
executive interference.154

CONCLUSION

Democratic backsliding in India is happening across multiple

institutions.155 The way the current NDA government is functioning in
India has exposed multiple vulnerabilities of the existing Indian
constitutional framework and depicted how the absence of a proper
constitutional design could act as an enabler of authoritarianism. Design
gaps allow would-be autocrats to pursue their authoritarian projects and
entrench themselves in the state apparatus by institutional capture without
engaging in any overt constitutional change or replacement. This also
makes their identification as autocrats difficult.

The Chair of the two Houses of Parliament is one such instance of

institutional capture. The functioning of the Chairpersons has been
controversial for some time now, and as the paper has shown, the executive
has successfully compromised their independence with the support of a
defective institutional design. It has contributed to the decline in the quality
and extent of parliamentary deliberation and has denied legislative due
process to the opposition parties. It manifests the concerns of G.V.

154 See also, Democratic Alliance v. Speaker of the National Assembly and Others, (CCT
143/15; CCT 171/15) [2016] ZACC 11 (Mar. 31, 2016); Economic Freedom Fighters and
Others v. Speaker of the National Assembly and Another, (CCT 76/17) [2017] ZACC 47
(Dec. 29, 2017); Doctors for Life International v. Speaker of the National Assembly and
Ors., (CCT 12/05) [2006] ZACC 11 (Aug. 17, 2006).
155 Tarunabh Khaitan, Killing a Constitution with a Thousand Cuts: Executive Aggrandizement and

Party-state Fusion in India, 14(1) L. & ETHICS OF HUM. RTS. 49 (2020).

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Mavalankar and reinforces his urgency to isolate the Chairperson from

their parent political parties.

Against this backdrop, the paper suggests a comprehensive overhauling of

the extant design and power framework of the Chair of the two Houses of
Parliament. The amendments, if implemented and respected across
political parties as part of political conventions, would set in motion a
transition of the Chair from a partisan office to an independent one. The
idea of calling a select multi-partisan parliamentary committee to rule on
the correctness
misuse of power by the Speaker but also create a first-level balancing
authority within the institution of Parliament. An expanded idea of judicial
review that recognises the jurisdiction of the courts to entertain matters
involving a violation of legislative processes that are fundamental to
lawmaking would establish a second-level and external check on the
powers of the Chair.

Indeed, the ultimate functioning of the Chair and its respect for the due
process of lawmaking depends on the people who adorn the Chair, but as
the partisan functioning has its roots in the flawed design, it is hoped that
amendments in the existing constitutional framework would nudge the
Chair to transcend self-interested party politics. The adoption of the
comprehensive package of suggestions as discussed above is, therefore,
imminent.

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ANALYSING THE INVISIBLE: THE CONSTITUENT

REPRESENTATION OF MARGINALISED MUSLIMS

MUSTAFA RAJKOTWALA1 & TEJAS B. NAIK2

In the Indian subcontinent, caste-based discrimination has been observed as a corporeal

experience, irrespective of religious affiliations. Although the Indian Muslim community
is perceived to be homogenous in nature, there exist caste-based segregations on horizontal
and vertical lines. Referred to as Pasmanda Muslims aste Muslims not

been systemically denied social, political and economic opportunities across decades even
though they make up for nearly eighty-five per cent of the Muslim population. The lack
of representation in State institutions and their lack of political power make them a more
vulnerable section in the communal atmosphere of the country that faces social and
economic discrimination. This paper aims at addressing the oppression and deprivations
faced by marginalized sections of the Indian Muslim community, tracing the discourse
from the Constituent Assembly debates to political movements in independent India
across decades. Furthermore, judicial and policy developments have been discussed, with
suggestions for revisiting the current reservation schemes in India in order to make them
more inclusive and effective for the marginalized Muslims in India.

INTRODUCTION

The Indian population consists of different religious groups, the most

prominent being Hindus and Muslims, in terms of population.3 While the
Muslim community, being a minority, faces oppression and deprivation at

* Cite it as: Rajkotwala & Naik, Analysing the Invisible: The Constituent Assembly and Independent
, 6(2) COMP. CONST. L. & ADMIN.
L. J. 124 (2022).
1 Mustafa Rajkotwala is a fourth year student at NALSAR University of Law, Hyderabad.

The author may be reached at <mustafa.rajkotwala21@[Link]>.

2 Tejas B. Naik is a fourth year student at NALSAR University of Law, Hyderabad. The

author may be reached at <tejasbnaik1999@[Link]>.

3 Press release, RGI releases Census 2011 data on Population by Religious Communities, PRESS

INFORMATION BUREAU (Aug. 25, 2015), [Link]

elid=126326.

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ANALYSING THE INVISIBLE: THE CONSTITUENT ASSEMBLY

MARGINALISED MUSLIMS
the hands of the majority,4 the crisis of democracy in India, by most, is
rooted in a communal issue between the Hindus and Muslims.5 However,
there is a deeper, internal division within the Muslim community, as there
is in the Hindu community, on the basis of caste hierarchies, which are
invisibilised from mainstream discourse.6 Although Islam mentions the
notion of equality amongst its followers and prohibits any segregation on
the basis of any societal constructs there exists a social stratification and
discrimination amongst the members of the community which emanates
from caste and racial divisions.7 Several scholars and researchers have
opined that caste-based segregations in the Indian subcontinent are a
corporeal experience, including socio-economic segregation, deep-rooted
within the notions of purity and racial superiority.8

In the Constitution
Assembly
differences based on identity markers such as caste, creed and religion,
among others, do not exist.9 This hinged on the creation of a homogeneous
community. In this light, they did not permit mechanisms of
representation, such as separate electorates and religious reservations, to
disintegrating 10 Contrary to those aspirations, it
can be argued tha othering
of minorities, including Pasmanda Muslims, in almost all spheres of growth
and development. These marred aspirations have not only excluded
representation-based discourse of socio-political minorities but have also
significantly crushed their human dignity, leaving little to no scope for any

4 Zoya Hasan, Muslims and the Politics of Discrimination in India, in THE EMPIRE OF DISGUST:
PREJUDICE, DISCRIMINATION, AND POLICY IN INDIA AND THE US 304 (Zoya Hasan et al
eds., Oxford University Press 2018).
5 Sumit Ganguly, The Crisis of Indian Secularism, 14 J. DEMOCRACY 11 (2003).
6 ALAM FALAHI, HINDUSTAN MEIN JAAT PAT AUR MUSALMAN (CASTE SYSTEM IN INDIA

AND THE MUSLIMS) 392 (Al Qazi 2007).

7 A. R. Momin, Review of Muslim Caste: Theory and Practice, 10 ECON. & POL. WKLY. 580

(1975).
8 Hasan, supra note 4.
9 Simona Vittorini, Representing the Nation: Competing Symbolic Repertoires in India (Oct. 2006)

(published PHD dissertation, School of Oriental and African Studies, University of

London), [Link]
10 Shefali Jha, Secularism in the Constituent Assembly Debates, 1946-1950, 37 ECON. & POL.

WKLY. 3175, 3175 80 (2002).

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social revolution.11 While caste has been acknowledged as a reality in Hindu

society, its existence among Muslims has not been meaningfully engaged
with, in civil and political discourses.12 The inequalities that exist in the
Indian subcontinent primarily hinge on social structures of caste and
patriarchy, and one of the most powerful tools to negotiate for these
inequalities is adequate representation, for and among all communities.13
This representation must account for socio-political and economic power
that communities enjoy and try to balance inequities within the structure
of the State, which bears all the responsibility to uphold the promises made
in the Constitution.

This paper attempts to deconstruct the idea of a homogenous Muslim

community in the Indian subcontinent and shed light on the socio-political
factors that have deprived Pasmanda Muslims of their representation and
rights in the contemporary political space. To understand the context of
this disadvantage in the various political and constitutional discourses, we
hin
the Muslim community and deliberations within the Assembly to ensure
adequate representation. We place our focus on identifying prejudices in
the Assembly debates and discussing them in the context of representation
of these communities, especially the Pasmandas.

First, we shall analyse the Momin Conference14 and its effects on the
Assembly to better understand aspects of oppression faced within the
Muslim community left unaddressed by the State. Second, we shall examine
relevant statutes, legislative developments, judicial precedents and political
movements surrounding the representation and rights of the Muslim
community in India. Subsequently, we shall conclude the paper by
exploring solutions within the framework of the Constitution to realise
both dignity to the people of India and a voice for Muslims that are
marginalised in public tranquillity and political spaces.

11 Santosh Rai, Muslim Weaver , 47 ECON. & POL.

WKLY. 63, 61-70 (2012).
12 Id.
13 Kanchan Chandra, Caste, Representation, and Enduring Inequality, 115 CURRENT HISTORY

150 (2016).
14 Santosh Rai, Formation of a Colonial Identity: The Momin Ansars in Early Twentieth Century

Northern India, 67 PROCEEDINGS OF THE INDIAN HISTORY CONGRESS 563 (2006).

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ANALYSING THE INVISIBLE: THE CONSTITUENT ASSEMBLY

MARGINALISED MUSLIMS
PASMANDAS WITHIN THE MUSLIM COMMUNITY

Socio-economic positions of communities within the Muslim community

must be engaged with when we are to analyse the extent of oppression
faced by them. These segregations amongst Indian Muslims affect
interactions such as marriages, access to education and economic
opportunity.15

A. CASTE HIERARCHIES WITHIN THE INDIAN MUSLIM COMMUNITY

In terms of categ Pasmanda

Dalit-Muslims, Backward-Muslims, and Adivasi-Muslims.16 Pasmanda has a
family resemblance to Bahujan SCs
STs OBCs
belonging to the Hindu tradition.17 The principle of graded inequality, of
course, works across Bahujan/Pasmanda communities. The caste system in
Islam can be manifested through a division of three main categories,
coupled with hundreds of sub-categories referred to as Biradaris (literally,
neighbourhoods).18

At the top of this hierarchical chain are the Ashraf Muslims, whose origins
trace to western or central Asia (this would include Syed, Sheikh, Mughal,
Pathan, et cetera or native Hindu upper-caste converts like Rangad or
Muslim Rajput, Taga or Tyagi Muslims, Garhe or Gaur Muslims, et cetera). At
the lower rung of the hierarchy lie Ajlaf (backward Muslims) and Arzal
(Dalit Muslims). As a whole, the Syed Biradari are placed on a high pedestal,
with their status identical to that of Brahmins in Hinduism.19 Similar to
Brahminism, the ideology of social discrimination and inequality within the
Syedism 20 The upper-caste
15 Sachar Committee, Social, Economic and Educational Status of the Muslim Community of
India: A Report, MINISTRY OF MINORITY AFFAIRS 192 (2006), [Link]
[Link]/sites/default/files/sachar_comm.pdf.
16 Rai, supra note 11.
17 Irfan Habib, Indo-Islamic Thought and Issues of Religious Co-existence, in HANDBOOK OF

MUSLIMS IN INDIA: EMPIRICAL AND POLICY PERSPECTIVE 28 (Rakesh Basan, Abusaleh

Shariff eds. Oxford University Press 2010).
18 Id.
19 Rai, supra note 11.
20 Khalid Anis Ansari, Rethinking the Pasmanda Movement, 44 ECON. & POL. WKLY. 8 (2009).

127
 CALJ 6(2)

Muslims make up only fifteen per cent of the entire Muslim community
the Pasmanda Muslims encompass a whopping eighty five per cent of the
total Indian Muslim population.21

B. DISCOURSE ON RIGHTS OF PASMANDA MUSLIMS

The voices for reform could be found in how julahas, a community of

weavers, who are generally lower caste Hindus, had converted to Islam.22
The name julaha carries with it caste connotations, which demarcate the
social position of these lower castes vis-à-vis the upper castes.23 higher
caste positions, which include Sheikhs, Pathans, et cetera, control most
resources and have structurally deprived Pasmanda Muslims access to the
same.24 To counter the caste construct associated with the name julaha, the
community took up the name Momin Ansar or Shiekh Ansar (Ansar: helper
of the prophet; Momin: faithful).

The organisation of the community formally started from Calcutta in 1914

with Falah-ul-Momineen.25 In 1926, the All India Jamait-ul-Momineen, also
known as the All India Momin Conference, was formed for the social,
economic and cultural upliftment of communities like the Momin Ansars.26
The conference in no way questioned or opposed Islam itself, but it was
an assertion in response to the organisations of the elite and upper castes.27
Demands, such as the representation of the depressed castes in the Haj
committee and with a population of around four crore out of the total
seven crore Muslims, representation proportional to the population of
these communities, were taken up by the conference.28 The Muslim League
was popularly seen as an upper caste organisation and the population from
the depressed classes often tilted towards the Indian National Congress29

21 Id.
22 Rai, supra note 11.
23 Sanober Umar, The Identity of Language and the Language of Erasure: Urdu and the Racialized-

, 1 CASTE GLOBAL J. ON SOC. EXCLUSION

175 (2020).
24 Rai, supra note 11.
25 Id.
26 Rai, supra note 14.
27 Id. at 565.
28 Id. at 569.
29 Id.

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ANALYSING THE INVISIBLE: THE CONSTITUENT ASSEMBLY

MARGINALISED MUSLIMS
with communal rhetoric taking centre stage in the discourse of
representation in the country and the absence of political discourse of
depressed classes, especially among Muslims in the subcontinent.30 The All
India Momin Conference failed to back their claims of a large population
because the Census Reports31 rendered the community a minority. It is
believed that many did not reveal their caste identities, as they wanted to
evade the status it conferred.32

The prominent voices of the Assembly included the likes of Jawaharlal

Nehru, Maulana Abul Kalam Azad, Sardar Vallabhbhai Patel, Rajendra
Prasad, and K.M. Munshi, among others, who stood to form a nation that
did not allow for violence, especially like the kind that erupted post-
partition.33 However, they did not engage with questions on the livelihood
of marginalized communities, which had been on the receiving end of the
communal violence.34 There is no record35 of any mechanisms framed to
spot systemic inequities that Pasmanda Muslims faced due to displacement
and violence. The discussion on the representation of Muslims cannot be
limited to Hindu-Muslim prejudices.36 The actual situation on the ground
cannot be articulated, unless we look at the effect of the control exercised
by these dominant voices, both, within and outside the Assembly.

REVISITING THE CONSTITUENT ASSEMBLY DEBATES

disadvantage
(historical and otherwise), and the Assembly debates ground this
understanding in the existence of various communities in our country. 37

30 Id.
31 Id. at 567.
32 Vittorini, supra note 9.
33 Aditya Nigam, A Text Without Author: Locating Constituent Assembly as Event, 39 ECON. &

POL. WKLY. 2107 (2004).

34 Khalid Anis Ansari, Contesting Communalism(s): Preliminary Reflections on Pasmanda Muslim

Narratives from North India, 1 PRABUDDHA: J. SOC. EQUALITY 78 (2018).

35 Seik Rahim Mondal, Social Structure, OBCs and Muslims, 38 ECON. & POL. WKLY. 4892

(2003).
36 Prashant Waikar,

Discourse, 4 ISLAMOPHOBIA STUD. J. 161 (2018).

37 S. Waseem Ahmed & M. Ashraf Ali, Social Justice and the Constitution of India, 67 INDIAN

J. POL. SCI. 767 (2006).

129
 CALJ 6(2)

The initial draft of the Constitution in 1948,38 in Article 296,39 provided for
welfare schemes (separate electorates and reservations, among others) for
religious minorities, backward classes, SCs and STs with the aim of
providing adequate representation40 in opportunities and governance.
Nonetheless, reservations on the status of religious minorities did not make
it to the final draft. A sizable majority in the Assembly believed that welfare
schemes for any religious minority group would promote disunity and
violate equality, if provided on a permanent basis.41 The intention of the
reservation policy under the final draft of the Constitution was to undo
past injustices,42 by functionally ensuring the representation of marginalised
communities. Finally, only caste hierarchies within a Hindu identity43 made
it to the reservation policy, wherein some communities, which were
conferred SC or ST status, could now be beneficiaries.

Before the final draft of the Constitution was tabled, an Advisory

Committee on Fundamental Rights, Minorities, and Tribal and Excluded
and Partially Excluded Areas headed by Sardar Vallabhbhai Patel was
formed.44 Under the Advisory Committee, a sub-committee for minority
rights was led by Harendra Coomar Mukherjee.45 In its extensive
discussion, the committee looked at the definition of untouchability,
wherein there was a broad agreement that untouchability of all kinds: caste,
religion, sex, et cetera, is prohibited. The members of the committee
acknowledged the existence of caste among Muslims and Christians while

38 DRAFT INDIA CONST. (1948).

39 DRAFT INDIA CONST. Subject to the provisions of the next succeeding
article the claims of all minority communities shall be taken into consideration, consistently with the
maintenance of efficiency of administration, in the making of appointments to services and posts in
connection with the affairs of the Union or of a State for the time being specified in Part I of the First
Schedule
40 3 CONSTITUENT ASSEMB. DEB. (Apr. 29, 1947), [Link]

456789/762962/1/cad_29-[Link].
41 Ashok Guha, Reservations in Myth and Reality, 25 ECON. & POL. WKLY. 2716 (1990).
42 National Commission to Review the Working of the Constitution, Issues of Social Justice:

Scheduled Castes, Scheduled Tribes and Other Backward Classes: An Unfinished National Agenda,
[Link]
t_obc.pdf.
43 Rai, supra note 14.
44 Ansari, supra note 20.
45 3 CONSTITUENT ASSEMB. DEB. (Jan. 24, 1947), [Link]

a/cadebatefiles/[Link].

130
ANALYSING THE INVISIBLE: THE CONSTITUENT ASSEMBLY

MARGINALISED MUSLIMS
discussing untouchability,46 and the current form of Article 16(4) of the
Constitution is a result of these discussions.47 However, the committee did
not make any specific recommendations to address the caste-based
stratifications in minority religions. This may be attributed to the fact that
there were no Pasmanda Muslims in the Assembly to articulate any such
demand. The Assembly was fixated on homogenising48 the nation under an
national unity 49 while the Muslim leaders50 came about to
51
impel a single Muslim identity.

There was an inherent discomfort among the dominant nationalists when

arguments were presented by members claiming to represent Muslims,
concerning their status and representation. Members like Krishnaswamy
Bharati and Mahabir Tyagi, were against minority-based reservations for
government employment or separate electorates for political
representation. They argued that these demands were an attempt to create
separatism in the country.52 According to them, in due course, this would
ruin the fabric of national harmony, antithetical to one of the primary goals
the Assembly sought to achieve. The premise is that any form of
unity 53 This
builds as one of the strongest reasons for why reservations for religious
minorities never formally became a part of the Constitution. In its quest to

46 B. SHIVA RAO, THE FRAMING OF INDIA S CONSTITUTION, 227 (Universal Law

Publishing Co. 2005).
47 V. P. Bharatiya, Minorities Commission: Constitutional Metamorphosis?, 21 J. INDIAN L. INST.

268 (1979).
48 5 CONSTITUENT ASSEMB. DEB. (Aug. 30, 1947), [Link]

/blogs/the_legitimacy_of_the_constituent_assembly__3__what_did_the_constituent_a
ssembly_think_of_its_representative_credentials_.
49 Shabnum Tejani, The Necessary Conditions for Democracy: B R Ambedkar on Nationalism,

Minorities and Pakistan, 48 ECON. & POL. WKLY. 111 (2014).

50 Hilal Ahmed, Muslim Representation in the Rajya Sabha: Forms and Trajections, RAJYA SABHA

(2015), [Link]
51 Rochana Bajpai, Constituent Assembly Debates and Minority Rights, 35 ECON. & POL. WKLY.

1837 (2000).
52 Vittorini, supra note 9.
53 3 CONSTITUENT ASSEMB. DEB. (May 25, 1949), [Link]

blogs/the_legitimacy_of_the_constituent_assembly__3__what_did_the_constituent_ass
embly_think_of_its_representative_credentials_.

131
 CALJ 6(2)

form a nation with a fundamental homogeneous identity,54 the Assembly

did not make any attempt to engage with the differences within the Muslim
identity. This non-engagement not only left the most vulnerable Muslim
population unrepresented, but it also legitimised the hegemony55 of a small
minority of upper-caste Muslims with unchecked access to most
community resources.56

Muslim representation in the Assembly hinged on a premise that was two-

fold first, the Muslim community in India is a homogenous unit,57
therefore they shall be looked as only a religious minority group in
cumulation; second, the Muslim representatives in the Assembly represented
the interests of Muslims of different social, political and economic
backgrounds within the community.58 Therefore, the issue of caste-based
segregation and marginalisation of Pasmanda Muslims were never engaged
with. The demands of separate electorates and minority reservations
(which were rejected by the Assembly) were the only points of engagement
with the backwardness of Muslims in India as a religious minority group.

The conjecture of the Hindu-Muslim binary needs to be reconstructed in

light of the communal post-partition rhetoric,59 and the non-participation
of communities such as Pasmanda Muslims. The manner in which concerns
of Muslim representatives were responded to depicts the stereotypes60
under which a rhetoric against them functioned. The result of this rhetoric
effectively upheld the power of the upper castes, furthering the systemic
deprivation of Pasmandas.

54 Mashirul Hasan, In Search of Integration and Identity: Indian Muslims since Independence, 23
ECON. & POL. WKLY. 2467 (1998).
55 Irfan Ahmed, , 38 ECON. &
POL. WKLY. 4886 (2003).
56 Id.
57 Shabnum Tejani, Between Inequality and Identity: The Indian Constituent Assembly and Religious

Difference, 1946 50, SOUTH ASIA RESEARCH (2013); Shefali Jha, Rights Versus Representation:
Defending Minority Interests in the Constituent Assembly, 38 ECON. & POL. WKLY. 1579 (2003).
58 3 CONSTITUENT ASSEMB. DEB. (Apr. 29, 1947), [Link]

456789/762962/1/cad_29-[Link].
59 Tejani, supra note 49.
60 JOHN ESPOSITO & IBRAHIM KALIN, I SLAMOPHOBIA: THE CHALLENGE OF PLURALISM

IN THE 21ST CENTURY 65 (Oxford University Press 2011).

132
ANALYSING THE INVISIBLE: THE CONSTITUENT ASSEMBLY

MARGINALISED MUSLIMS
Widely, there was a persistent fear that any special privileges given to the

nation-building project.61 A direct follow-up62 from the Morley-Minto

Reforms of 190963 that introduced separate electorates for the members of
Muslim separatism 64 Amidst communal
65 66
tensions within the representative Assembly (whose authority was being
questioned67 at various fronts), the question of caste segregation among
Muslims was virtually erased.68 There was clear hostility in the way the
Assembly dealt with the demands for separate electorates or reservation
policies for Muslim communities69 with a communal partition afresh in
their memory. Naturally, the demands for separate electorates transgressed
into demands for proportional representation and reservations. The vocal
members in support70 of proportional representation and reservations such
as Zahir-ul-Husain Lari, Syed Muhammad Saadullah, Mahboob Ali Baig
Sahib Bahadur and Kazi Syed Karimuddin argued that such benefits would
not mean that the secular fabric of the nation would be harmed,71 but
would rather provide assurance that the voices of the minorities are heard
and the Parliament shall have increased diversity. Further, the spirit of

61 Id.
62 Francesca Jensenuis, Mired in Reservations: The Path-Dependent History of Electoral Quotas in
India, 74 J. ASIAN STUD. 85 (2015).
63 The Indian Councils Act, 1909, No. 4, Acts of British Parliament, 1909 (British India).
64 Stephen Koss, John Morley and the Communal Question, 26 J. ASIAN STUD. 381 (1967).
65 Bharatiya, supra note 47.
66 Vineeth Krishna, The Legitimacy of the Constituent Assembly #3: What Did the Constituent

Assembly Think of its Representative Credentials?, [Link] (Apr. 23,

2019), [Link]
ssembly__3__what_did_the_constituent_assembly_think_of_its_representative_credent
ials_.
67 DRAFT INDIA CONST. (1948). See also, Raja Dandamudi & Prarthana Bhatija, How

Partition Can be An Invaluable Lens to Approach Minority Rights Guaranteed by the Constitution of
India, THE LEAFLET (Jan. 30, 2019), [Link]
invaluable-lens-to-approach-minority-rights-guaranteed-by-the-constitution-of-india/.
68 ZOYA HASAN, POLITICS OF INCLUSION: CASTES, MINORITIES AND AFFIRMATIVE

ACTION 32 (Oxford University Press 2009).

69 Mattison Mines, Muslim Social Stratification in India: The Basis for Variation, 28

SOUTHWESTERN J. ANTHROPOLOGY 333 (1972).

70 Shefali Jha, Representation and Its Epiphanies: A Reading of Constituent Assembly Debates, 39

ECON. & POL. WKLY. 4357, 4357-4360 (2004).

71 Ahmed, supra note 50.

133
 CALJ 6(2)

democracy would then be meaningfully engaged with the minority

opinions, i.e., primarily, the voices of the groups traditionally rendered
powerless in the hegemony of social relationships, evading the risk of
fascism.72 In light of this, it can be argued that the dominant pre-partition
narrative, ultimately stalled any State action to ensure representation of
transgression
between the upper castes of both Muslims and Hindus, ousting the
representation and demands of Pasmanda Muslims from the entire process.

Consequently, during the course of the Assembly debates, the nationalist

idea towards the adoption of a secular image prevailed over the idea of
providing additional benefits for minority rights. Some Muslim members
accepted the idea of forfeiting reservations for legislative seats, in the
debate against educational and employment reservations.73 Naziruddin
argued that reservations for Muslims would deteriorate improved Hindu-
the safety of the Muslims lies in intelligently
playing their part and mixing themselves with the Hindus in public affairs 74

Begum Aizaz Rasul stated that having separate electorates and reservations
for Muslims would fuel separatism between the majority and minority
communities, and having joint electorates would be a viable measure in
countering any animosity between the two communities.75 She argued:76

If reservation of seats for Muslims remains, it would be tantamount to an act

of charity on the majority community. For those Muslims who think that this is
going to be harmful to them, I say that it is not going to be harmful because it
will create better relationship between the two communities. Even if a few seats
are lost to the Muslims, I feel that sacrifice is worthwhile if we can gain the good-
will of the majority in that way.

72 Hasan, supra note 4.

73 Rochana Bajpai, Multiculturalism in India: An Exception?, B. U. INST. ON CULTURE,
RELIGION & WORLD AFF. 10-11 (2015).
74 3 CONSTITUENT ASSEMB. DEB. (May 26, 1949), [Link]

ta/cadebatefiles/[Link].
75 Id.
76 Id.

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MARGINALISED MUSLIMS
minority
status, created a binary; with religious minorities and backward classes.77
Reservations for the latter, due to efforts of members such as Dr. B.R.
Ambedkar, were agreed upon in order to make good towards the past
injustices meted towards individuals that constituted as members of such
marginalised communities.78 This clubbing of all classes under a single
Muslim identity, disallowing any assessment of backwardness, is
attributable to the hegemony of the upper caste Muslims, who represented
the Muslim community in the Assembly.

Muslim
community derailed79 the focus from the socio-economic deprivations that
many Muslim communities, particularly Pasmanda Muslims face within the
established social order, to mere negotiations of how the religious group
would posit and organise itself.80 This is far from the idea behind
reservations in social and political spheres to ensure adequate
representation and allow the voices of such members to be heard as a
constitutional safeguard against their constant socio-economic
deprivations.81 Voices like Jaipal Singh Munda (who especially advocated
for Adivasi rights in the Assembly debates) did not settle with this binary
and asserted that backwardness can be found in different faiths/identities
and that they must be recognised and safeguarded.82

In India, power is conferred upon communities based on their caste

positions, notwithstanding religious beliefs. It is in this context that the
essence of representation of people belonging to the communities which
are left out of this social order, in the state apparatus holds a lot of
significance. When communities are left unrepresented in the State and the
77 Hasan, supra note 4.
78 See MARC GALANTER, COMPETING EQUALITIES, LAW AND BACKWARD CLASSES IN
INDIA (University of California Press 1984).
79 Kumkum Sangari, Politics of Diversity: Religious Communities and Multiple Patriarchies, 30

ECON. & POL. WKLY. 381 (1995).

80 Habib, supra note 17.
81 Indra Sawhney v. Union of India, AIR 1993 SC 477 (India); Kailash Jeenger, Reservation

Is About Adequate Representation, Not Poverty Eradication, THE WIRE (May 18, 2020),
[Link]
82 Pooja Parmar, Undoing Historical Wrongs: Law and Indigeneity in India, 49 OSGOODE HALL

L. J. 491 (2012).

135
 CALJ 6(2)

politics of its functioning, the effects transgress squarely on the

communities that are marginalized and left unrepresented. This can be seen
in the case of Pasmanda Muslims. There is negligible representation of
Pasmandas and their interests. These communities have been systematically
ghettoised83 in the corporeality of cities and the aspirations of development
that the State institutions boast of never make it to these pockets. The
primary reason cited by State institutions with regard to this lack of
representation is that the communities themselves do not want to
participate in the vision the State has for development. On the contrary,
these communities never receive the bandwagons of developmental
policies due to the State suffering from the lack of their representation. As
a result of the same, the living conditions of Pasmandas have worsened over

administration.84

The inability of the Assembly to establish an inclusive concept of

backwardness amidst the rhetoric that special privileges to Muslims would
lead to separatist tendencies was actively given a centre stage, and
unsurprisingly, all this was done by the ones placed higher in the hegemony.
In the process of preserving the secular fabric and achieving effective
administration and good governance, the Assembly failed the under-
represented Pasmanda Muslims. The inability of the Assembly to dwell into
the socio-economic positions of Muslim communities is a mitigating factor
in the larger scheme of things behind the denigration of the socio-
economic and political status of Pasmanda Muslims in the country. In the
following portions of the paper, we aim to present links between the
structural positions of the Pasmanda subaltern groups against the on-going
rhetoric over separatist tendencies of Muslims, which
times.

RECONCILIATION OF DIGNITY THROUGH THE LENS

OF THE CONSTITUTION

human
personality dignity

83 Raphael Susewind, Muslims in Indian Cities: Degrees of Segregation and the Elusive Ghetto, 49
ENVIRONMENT AND PLANNING A: ECONOMY AND SPACE 1286 (2017).
84 Habib, supra note 17.

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ANALYSING THE INVISIBLE: THE CONSTITUENT ASSEMBLY

MARGINALISED MUSLIMS
85
fraternity. This idea of human personality articulated by Dr. B. R.
Ambedkar does not concern mere individuals, but has a lot to do with the
morality and burden of the community (Nation) towards its individuals and
communities.86 empathy this
dignity
is a disservice to the Constitution, which has its foundations laid on this
Human Personality 87 This also acted as the cornerstone behind
the formulation of provisions against anti-discriminatory practices (here,
the caste system) at the hands of the Assembly.88 Dr. B. R. Ambedkar, in
his last speech before the Assembly, referred to how the monopoly of
political power in the hands of few vis-à-vis the oppressed individuals has
sapped them away from the significance of life 89

The aspect of human dignity for the Pasmanda Muslims needs to be looked
at in light of the opinions and narratives laid down in the Assembly. The
lack of discourse on systemic deprivations of these communities may be
attributed to the communal atmosphere owing to the post-independence
communal partition.

In terms of a glaring example the Permit System90 existed under Article

7 of the Constitution, which treated Hindu and Muslim migrants
differently. Among the several kinds of permits that were available, the
permanent resettlement
to West Pakistan and who now wanted to permanently resettle in India,
was incredibly difficult to obtain. As a response to the growing migration

85 Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 EUR.
J. INT L. L. 655 (2008); Aharon Barak, The Role of Human Dignity as a Constitutional Value,
CUP 103 (2015); Doron Shulztiner & Guy Carmi, Human Dignity in National Constitutions:
Functions, Promises and Dangers, 62 AJCL 461 (2014).
86 B. R. Ambedkar, Annihilation of Caste: The Annotated Critical Edition, VERSO (2016).
87 B.R AMBEDKAR & V. MOON, DR. BABASAHEB AMBEDKAR (Dr. Ambedkar Foundation

2014),
88 Kanta Kataria, Dr. B.R. Ambedkar as a Nation-Builder, 73 IN. J. POL. SCI. 4, 601 (2012).
89 11 CONSTITUENT ASSEMB. DEB. (Nov. 25, 1949), [Link]

t/constitution_assembly_debates/volume/11/1949-11-25.
90 Rights of Citizenship of Certain Migrants to Pakistan, [Link],

[Link]
%207. (Last visited on May 21, 2022).

137
 CALJ 6(2)

after the India-Pakistan partition,91 the Permit System schema categorized

refugees evacuees displaced persons
Muslims who owned property in India, while the latter were Hindus and
other non-Muslims that wished to return to India.92

were discriminated against while implementing the said system.93 On

multiple occasions, the communications between ministers of the Indian
government were hostile towards Muslims who were returning to Indian
territory from newly-formed Pakistan.94 Prima facie, this arrangement is
evacuees ), who are socially and economically
marginalized as the standard of documentation required to be maintained
displaced persons
in the benefits conferred. The refugee colonies then settled in cities like
Delhi, articulate the kinds of differences that existed between these two
categories.95 However, due to the communal atmosphere present at that
time, issues such as backwardness and deprivation for individuals that fell
evacuee (i.e., Muslims) did not receive attention.
Furthermore, if backwardness had to be considered for such marginalized
Muslims in order to provide welfare benefits, the communal nature of the
an
additional burden of proof onto the individuals to prove their nationality.
It can be said that although the Assembly was not communal in nature, the
circumstances were unique, and the atmosphere was communal due to the
pre-partition scepticism and post-partition violence.

91 Sajal Nag, Nationhood and Displacement in Indian Subcontinent, 36 ECON. & POL. WKLY.
4753 (2001).
92 Id.
93 Abhinav Chandrachud, The Origins of Indian Citizenship, BLOOMBERG QUINT (Dec. 26,

2019), [Link]
origins-of-indian-citizenship-by-abhinav-chandrachud.
94 Anirban Bhattacharya & Azram Rehman Khan, Contested Citizenship: What Constituent

Assembly Debates from 70 years ago Reveal about India Today, THE SCROLL (Feb. 26, 2020),
[Link]
debates-from-70-years-ago-reveal-about-india-today.
95 Dhooleka Sarhadi Raj, Ignorance, Forgetting, and Family Nostalgia: Partition, the Nation State,

and Refugees in Delhi, 44 SOC. ANALYSIS: INT L. J. ANTHROPOLOGY 30 (2000).

138
ANALYSING THE INVISIBLE: THE CONSTITUENT ASSEMBLY

MARGINALISED MUSLIMS
One can also argue that communal biases existed in pre-Assembly times as
well. However, in post-independence India (built on a promise of
secularism and a welfare state), these prejudices have increasingly crept into
the day-to-day social interactions of communities and individuals, and have
manifested themselves into communal undertones in our governance.
Furthermore, as the State had not investigated into the question of
providing welfare benefits, the effect of this amplified when it came to
socially and economically marginalized Pasmanda Muslims.96 As the
Assembly failed Pasmanda Muslim communities who were left politically
vulnerable post-partition,97 the lack of any conversation and representation
of these communities is a result of this political ignorance since the dusk
-building project.

Although we cannot reduce the experiences of Muslim communities to a

conceptualization of the social structures within, we can look at this as a

starting point of the governmentality that guided the administrations in
many issues of post-partition India. Simply equating the fact that the
Assembly did not provide reservations to religious minorities, and that is
the reason behind their deprivation, would be an unfair proposition to
present. It is one facet (albeit, a pertinent one) with regard to the
unaddressed and unchecked backwardness of many Muslim communities.
In light of this, we study other important factors involved, to determine a
holistic picture that calls for a case of worry for the socially, economically,
and culturally vulnerable lower-caste Muslim population in India.

In recent years, the psyche of the entire Indian Muslim community (as a
single unit, across castes) has been threatened, due to the increased
politically motivated actions of the right-wing majority.98 This has
culminated over the years, starting from the Hindu Rashtra Project to the

96 Hilal Ahmed, Pasmanda Muslim Politics and Caste-based Reservation, ECON. & POL. WKLY.
BLOG (Feb. 10, 2014), [Link]
[Link].
97 Rowena Robinson, Religion, Socio-economic Backwardness & Discrimination: The Case of Indian

Muslims, 44 IN. J. INDUS. REL. 194, (2008).

98 Sanjeev Kumar, re and the Muslim
, 34 THIRD WORLD Q. 458, (2013).

139
 CALJ 6(2)

Babri Masjid-Ram Mandir dispute in the 1980s99 which has only

worsened in the post-2014 era. These political developments have actively
stunted any development possible among the minority population that was
second-class citizenship
It has happened primarily based on how the community was in essence
forced to ghettoise in the name of religion and has not been able to focus
on its socio-political aspirations.100 The constant hate, trolling and
conspiracy theories peddled by influential news media organisations, social
media influencers, and right-wing spokespersons fuel the alienation of the
community.

In the current political atmosphere, this has also culminated into politics at
the hands of fringe elements, which includes the application and
enforcement of controversial laws, such as the amendments to various anti-
terror laws that allow the State alarmingly extra power,101 the victims of the
same being Muslims on multiple fronts.102 The passing of legislation, such
as the Citizenship Amendment Act 2019103 CAA Love-Jihad
bills in various states,104 act as a catalyst in reinforcing existing prejudices
and stereotypes. Further, there are regular reports of mob-lynching,105

99 Anwar Alam, Democratisation of Indian Muslims: Some Reflections, 38 ECON. & POL. WKLY.
4881 (2003).
100 Id.
101 Ramanand Garge, Jurisprudence of Anti-Terrorism Laws An Indian Perspective,
VIVEKANANDA INTERNATIONAL FOUNDATION (July 09, 2019), [Link]
rg/monograph/2019/july/09/jurisprudence-of-anti-terrorism-laws-an-indian-
perspective.
102 Bilal Kuchay, , AL JAZEERA
(July 02, 2021), [Link]
muslims-activists.
103 Madhav Godbole, A Law that Offers Citizenship Only to Non-Muslims Sidesteps the Real

Issues for Political Mileage, THE INDIAN EXPRESS (Dec. 30, 2019), [Link]
m/article/opinion/columns/caa-protests-nrc-citizenship-amendment-act-right-
question-wrong-answer-6190568/.
104 Apoorv Anand, , AL
JAZEERA (Jan. 15, 2021), [Link]
jihad-laws-another-attempt-to-subjugate-muslims.
105 Harsh Mander, Lynching, the Scourge of New India, THE HINDU (Oct. 16, 2019),

[Link]
india/[Link].

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MARGINALISED MUSLIMS
increased instances of violence and communalism, 106 and recurring
narratives around terrorism107 (which run as recent as the COVID-19
pandemic).108 Evidently, however, the experiences of lower caste Muslims
do not receive regular acknowledgement in media spaces. The normalised
scepticism against Muslims furthers the marginalisation of lower caste
Muslims, making them more susceptible to oppression and deprivation
at the hands of the majority and their community, respectively.109

Across decades, upper caste Muslims have acted as representatives for

issues that relate to the community in spaces such as Madrasas, Personal
Law Boards, Representative Political Institutions (central, state and
municipal assemblies), Ministries and educational institutions that claim to
work for the betterment against deprivations faced by the Muslim
community (Minority affairs organizations, non-governmental
organizations, Waqf boards, Urdu academies, AMU, Jamia Millia Islamia,
et cetera).110 Furthermore, the invisibility of caste segregation in Islam has
made it difficult for representations to be made in the course of seeking
affirmative action and welfare benefits for the downtrodden sections of the
community. With an increasingly hostile tendency of the powerful classes
and spaces of our society to become blind towards socio-economically
marginalised communities, there is an imminent need to bring forward
policy solutions that shall elevate the status of such lower caste Muslims for
the long run.111

106 Ajay Gudavarthy, There Is Communalism Not Islamophobia in India, THE WIRE (May 01,
2019), [Link]
107 Issac Chotiner, The Real Objective of Mob Violence Against Muslims in India, THE NEW

YORKER (Feb. 20, 2020), [Link]

objective-of-mob-violence-against-muslims-in-india.
108 Shakuntala Banaji & Ram Bhat, Disinformation against Indian Muslims during the COVID-

19 Pandemic, MEDIA@LSE BLOG (Sept. 24, 2020), [Link]

0/09/24/disinformation-against-indian-muslims-during-the-covid-19-pandemic/.
109 Azhar ul Hassan Sumra, Muslims and Islam in Indian English Press: Exploring the Islamophobic

Discourse, 5 ISLAMOPHOBIA STUD. J. 226 (2020).

110 Arjumand Ara, Madrasas and Making of Muslim Identity in India, 39 ECON. & POL. WKLY.

34 (2004).
111 Id.

141
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THE DISCOURSE AROUND DISADVANTAGE AMONG

MUSLIMS

we need to delve into how the State has perceived issues associated with
the deprivation of the Muslim community, especially Pasmanda Muslims.
Today, the Indian Muslim faces a fascist threat by the majority in two over-
arching formats: a) socio-economic and political deprivations; and b)
cultural subjugation, where to exercise any cultural right there is fierce
opposition against it by the political majority. However, the Pasmanda
Muslims face the aforementioned external deprivations and troubles in the
form of a systemic deprivation in the distribution and control of knowledge
and social capital, power and influence, property and associated ownership
rights, resources, sexuality, gender discrimination, and human dignity.

A. POLITICAL DEPRIVATIONS

As of now, through the demographics associated with parliamentary

elections in India, we see a pattern among the representatives, vertically in
selected areas and horizontally as per religion. For example, there has been
a steady decline in the percentage of representatives from Muslim
Communities. 1980 recorded the largest number of Muslim
representatives,112 which is now down to twenty seven in 2019 after a
marginal increase from twenty one in 2014. Today, only five per cent of
113
MPs
The majority of these Muslim representatives are elected from the same
constituency in order to serve in Parliament. During the timeline of 1951
to 2019, the Murshidabad constituency (West Bengal) has had a Muslim
representative elected for all seventeen terms of the Lok Sabha.114 Similarly,

112 Daniel Wolfe et al., Why is Muslim Political Representation Declining in India?, QUARTZ
INDIA (May 22, 2019), [Link]
muslims-make-it-to-the-lok-sabha/.
113 Christophe Jaffrelot & Gilles Verniers, The Dwindling Minority, THE INDIAN EXPRESS

(July 30, 2018), [Link]

politicians-in-india-bjp-narendra-modi-government-5282128/.
114 ELECTION COMMISSION OF INDIA, ELECTION RESULTS - FULL STATISTICAL REPORTS

(2022), [Link]

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MARGINALISED MUSLIMS
Dhubri (Bihar) has had a Muslim representation for sixteen terms,115
Baramulla (J&K) and Srinagar (J&K) has had one for fifteen terms.116

Similarly, Uluberia (West Bengal) has had one for thirteen terms, Rampur
(Uttar Pradesh) has had one for twelve terms, while Moradabad (Uttar
Pradesh) and Hyderabad (Telangana) have had one for eleven terms.117
Representation in the Rajya Sabha and state legislatures does not show us
any different observations either. In terms of the socio-economic aspect of
othering
communities hints at the idea of how constituencies are ghettoised and
furthered away from the society, while they act as a token source of Muslim
representation in the country. It is pertinent to note that Muslims constitute
nearly fourteen per cent118 of the Indian population, but are still political
minorities in almost every sphere of governance, due to the lack of any
proportionate representation as per their population and social status. 119
This, in a way, presents a mirror towards the current state of affairs in our
country, as opposed to the vision of the Assembly towards the socio-
economic and political status of Muslims in India.

In a recent study on political representation of Indian Muslims in post-

colonial India, Iqbal Ansari has argued that Muslims are not adequately
represented in legislative bodies.120 This study, for instance, reveals that
Muslim representation has not been satisfactory in Parliament (see Table 1
attached below). Except for the 1980 and 1984 Lok Sabha(s), Muslim
under-representation, or what Ansari calls Muslim political deprivation,
remains around fifty per cent.

115 Id.
116 Id.
117 Id.
118 Stephanie Kramer, The Religious Composition of India, PEW RESEARCH
CENTER (Sept. 21, 2021), [Link]
composition-of-india/.
119 Lindsay Maizland, , COUNCIL ON
FOREIGN RELATIONS (Aug. 20, 2020), [Link]
muslims-marginalized-population-bjp-modi.
120 IQBAL A. ANSARI, POLITICAL REPRESENTATION OF MUSLIMS OF INDIA: 1952-2004 25

(Manak Publications 2006).

143
 CALJ 6(2)

Ansari points out that political parties are mainly responsible for Muslim
political deprivation. He shows that almost all major political parties failed
to nominate Muslims for Lok Sabha elections (Table 2). Analysing these
trends, Ansari concludes that the present electoral mechanism system is
inadequate, because it does not provide proportional representation to
Muslims. Therefore, some kind of alternative should be worked out.

Ansari suggests three main avenues for increasing Muslim

representation:121

(a) All political parties nominate a fair share of minority candidates under the

persistent under-representation of minorities; (b) De-reserving those constituencies

reserved for SC, which have a good percentage of Muslim voters. Alternatively,
the category of SC should be defined in terms of social origin, irrespective of faith,
allowing Muslims and Christian Dalits to seek election from seats reserved for
SC; and (c) Redrawing constituencies with a view to enabling under-represented
groups like Muslims

TABLE 1
Muslims in Lok Sabha

No. Year Total elected Muslims Expected Deprivation

members elected representation %
on population
basis

I 1952 489 21 49 57.14

II 1957 494 24 49 51.02

III 1962 494 23 53 56.60

IV 1967 520 29 56 48.21

121 Id.

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MARGINALISED MUSLIMS

V 1971 518 30 58 48.28

VI 1977 542 34** 61 44.26

VII 1980 529*1 49** 59 16.95

VIII 1984 542 46** 62 25.81

IX 1989 529*2 33 60 45.00

X 1991 534*3 28 65 56.92

XI 1996 543 28 66 57.56

XII 1998 543 29 66 56.06

XIII 1999 543 32 66 51.52

XIV 2004 543 36 66 45.45

Total 442 836 47.12

Notes: *1: Elections were not held in Assam (12) and Meghalaya (1); 2:
Elections were not held in Assam (14); 3: Elections were not held in J&K
(6) and countermanded in two seats in Bihar and one in UP.
** Including Muslims elected in bye-elections.
Source: Ansari 2006, p. 64.

145
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TABLE 2
Nomination of Muslims for the Lok Sabha Elections by Major
Political Parties

Name of the political party Average Ratio: elected to nominated

nomination

INC 6.72% 1:2

BJS/BJP 0.82% 1:10

CPI 4.24% 1:9

CPI(M) 9.34% 1:2

Janata Party/Lok Dal 6.8% 1:5

Janata Dal 9.04% 1:4

RJD 14.79% 1:4

SP 18.02% 1:7

BSP 10.53% 1:17

Source: Based on Ansari 2006, 99-102.

B. THE DISCOURSE WITHIN STATE MACHINERY

While communal bias did exist in pre-independence India, there was some
mobilisation in order to ensure representation and parity in political spaces
as there has been a history of affirmative action in favour of Muslims in
public employment, educational institutions, alongside a temporary wave

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MARGINALISED MUSLIMS
of separate electorates.122 However, this ceased to exist post-independence
after 1947.

Article 15(4) of the Constitution, enables the State to make special

provisions for the socially and educationally backward classes of citizens.
In M. R. Balaji v. State of Mysore,123 the Supreme Court of India clarified that
backwardness social and educational ief
that the test of caste does not apply to other religions other than Hinduism
is negligent and ill-reasoned. The existence of a caste-based hierarchy is not
124
system.

In Soosai v. Union of India,125 the Supreme Court categorically held that it was
not sufficient to show that the same caste continues post-conversion of
individuals from marginalised communities in the Hindu order to another
religion. The Court further held th disabilities and handicaps suffered from
such caste membership need to be established, after such conversion owing
new environment fforded due to the religious conversion.126 This
essentially means that Dalits, who still face oppression, even when under
the banner of a different religion, are now saddled with the burden to prove
that they were in fact oppressed. This approach of the Supreme Court does
not engage with the nuance of social hierarchies that continue and
Hindu

Over the years, the State has been made aware of the lived realities of
Muslims who are socio-economically and politically marginalised. While
most reports do not even acknowledge the presence of Pasmanda demands,
which has been rallied for since before independence, they do attempt at
summarising the disadvantages faced by these Muslims, in and especially
against the State.127

122 Jensenuis, supra note 62.

123 M. R. Balaji v. State of Mysore, 1963 AIR 649.
124 Id.
125 Soosai v. Union of India, AIR 1986 SC 733.
126 Id.
127 Ansari, supra note 34.

147
 CALJ 6(2)

In the landmark case of Indra Sawhney v. Union of India,128 the Supreme Court
placed a cap of fifty per cent on reservations in State institutions of any
kind. The Court in this case in a very detailed manner refers to the Second
Backward Classes Commission Report (Mandal Commission Report),129 to
balance an idea that followed suit from Balaji when it came to the status of
Muslims and Christians. It would be noteworthy to look at the various
developments around welfare schemes for the Muslim community as a
whole this is because Muslims were not excluded from the Mandal List,
and various Muslim castes are included in the list of OBCs.

The Supreme Court in the case of R. Krishnaiah v. Union of India130 held that
the State can accommodate minorities that come under backward classes
amongst the Other Backward Classes (OBC; twenty seven per cent
reservation in total) by making a sub-quota within the OBC category.
Empirical data would make up for the most important basis for such
categorisation in the process of determination and execution of such a
quota policy.131 Regardless of these aforementioned developments
providing reservations to the Muslim community on the basis of socio-
economic lines, the fundamental issue of caste has not been addressed.

The First Backward Classes Commission Repo Kaka Kalelkar

Report 132 the Mandal Commission Report, the Sachar Committee
Report133 and the Justice Ranganathan Misra Report134 Misra Report
respectively, have noted that Muslim communities have under-performed
when it comes to metrics of development on socio-economic parameters,

128 Indra Sawhney v. Union of India, AIR 1993 SC 477.

129 National Commission for Backward Classes, Report of the Backward Classes
Commission, 14 (1980), [Link]
n%20Report%20of%20the%201st%20Part%[Link].
130 R. Krishnaiah v. Union of India, 1996 (4) ALT 175.
131 Id.
132 First National Commission for Backward Classes, Report of the Backward Classes

Commission (1955), [Link]

133 Sachar Committee, Social, Economic and Educational Status of the Muslim Community of

India: A Report, MINISTRY OF MINORITY AFFAIRS 192 (2006), [Link]

[Link]/sites/default/files/sachar_comm.pdf (hereinafter Sachar Committee Report).
134 National Commission for Religious and Linguistic Minorities, Report of the National Co

mmission for Religious and Linguistic Minorities, MINISTRY OF MINORITY AFFAIRS (2007), htt
ps://[Link]/sites/default/files/volume-
[Link] (hereinafter Misra Report).

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MARGINALISED MUSLIMS
educational and employment opportunities among other factors. The
Misra Report identifies Muslim minorities as eligible for socio-economic
reservations with respect to their pre-conversion caste status as well. The
Mandal Commission Report went on to recognize eighty two different
groups of Muslims to fall under the OBC category, nonetheless, that
constituted less than half of the entire Muslim population in the country.135

The text of the Constitution (Scheduled Castes) Order, 1950

Presidential Order, 1950 136 which is one of the most important
instruments that has enabled representation of some of the most
downtrodden and marginalised communities of the country to be
represented in various sectors of the state functioning, explicitly excludes
Muslim and Christian SCs from any kind of reservations. In such a case,
the need for reservations for backward Muslims137 has become an issue of
elevation against deprivation and oppression, alongside the over-arching
idea of holistic representation in various sections of the society.

The Sachar Committee Report dominates discussions which attempt to

political backwardness
fact-finding bodies, which have recognised that a caste hierarchy exists
among Muslims, and also attempted to collect data for it. But when one
looks at the recommendations of this committee and its probable
implications, there is no remedy proposed for the structural oppression
caste perpetuates. The Sachar Committee, first suggests reform in the
nomination procedure to the various institutions and boards that run the
affairs of the community as a whole.138 These reforms, it says, have to be
equitable Second, it is clear that the committee
has identified the existence of a large number of people who are more
backward than everyone else.139 These people are found to have similar
traditional occupations like the SCs, and the committee proposes to

135 Habib, supra note 17.

136 The Constitution (Scheduled Castes) Order, 1950.
137 Zoya Hassan, Reservation for Muslims, INDIA SEMINAR (May 2005), [Link]

[Link]/2005/549/549%20zoya%[Link].
138 Sachar Committee Report, supra note 133 at 241.
139 Id. at 196.

149
 CALJ 6(2)

Most Backward Classes MBCs

arrangements, including reservations, for their betterment.140

Finally, the commission looks at the problems in the delimitation of

constituencies, which seem to be designed against Muslim representation.
A number of constituencies that have a higher share of the Muslim
population than others have been reserved for SCs/STs. This reservation
disallows any Muslim from representing these constituencies. The
commission recommends that reservations be provided to SCs and STs in
areas that do not have high Muslim populations so that there is a better
chance of representation among Muslims.141 However, this
recommendation completely disregards the existence of caste divisions
among Muslims.

On the other hand, the Misra Report suggested that caste reservations
should be made religion neutral.142 The Misra Report recommended ten
per cent reservation for Muslims and five per cent for other minorities in
government jobs and favoured SC status for Dalits in all religions. 143 The
Misra Report recommends delinking of SC status from religion and the
still excludes Muslims,
144
Christians, Jains and Parsis from the SC net The Order originally restricted
the SC status to Hindus only but later opened it to Buddhists and Sikhs.

In 2008, Dr. Mahmoodur Rahman Committee Report145 submitted its

findings on the socio-economic conditions of Muslims in Maharashtra.
The Committee revealed:146

140 Id.
141 Id. at 25.
142 Misra Report, supra note 134.
143 Id.
144 Id.
145 Chief Ministers Study Group Government of Maharashtra, Report on the Socio-Economic

and Educational- Backwardness of the Muslims in Maharashtra, MINORITIES DEVELOPMENT

DEPARTMENT (May 2013), [Link]
odur_Rahman_Committee_Report_with_Cover_page.pdf.
146 Id.

150
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MARGINALISED MUSLIMS
59.4% of the urban population and 59.8% of the rural population of Muslims
is below the poverty line (BPL). The Committee has also found that about 25%
of the Muslim population is marginally above the poverty line.

It outlined the absence of representation of Muslims in Government

Services, especially the Indian Administrative Service, where it was at that
time found to be nil, and among the police forces, where only four point
four per cent of the police force in Maharashtra were Muslims.147 The
representation of Muslims is not better in these sectors even today, and the
disadvantage that Pasmanda Muslims are facing is not even engaged with, at
this point. With high shares of Muslims in jail occupancy and very low
education levels, majority of the Muslims in Maharashtra are severely
underrepresented. The Amitabh Kundu Report,148 which assessed the
effi
recommendations. Even in this report, it is noted that Muslims have been
left out of both Government jobs and the urbanization wave .149

While we look at what various state governments have done on this front,
it is found that most of them have sub-classified backward class Muslims
under the OBC list, and accorded them reservations accordingly. In terms
of examples at the state government levels, Kerala has included all Muslims
backward
(which was earlier ten per cent) under the OBC category. 150 In Karnataka,
reservations are afforded to Muslims whose annual income falls under Two
Lakh Indian Rupees.151 Tamil Nadu includes almost ninety five per cent of
its Muslim population to be eligible for reservation schemes.152 The High

147 Id.
148 Expert Group on Diversity Index, Report of the Expert Group to Propose a Diversity Index
and workout the Modalities of Implementation, MINISTRY OF MINORITY AFFAIRS 3 (2008),
[Link]
149 Id.
150 B. Krishnakumar, A History of Reservation, THE HINDU (Apr. 27, 2004), [Link]

[Link]/social-issues/[Link].
151 Bageshree S., The saga of OBC reservation for Muslims in Karnataka, THE HINDU (July 23,

2012), [Link]
reservation-for-muslims-in-karnataka/[Link].
152 PS Krishnan, Muslim Quota: The States Eye View, The Financial Express (Apr. 06,

2010), [Link]
view/599873/.

151
 CALJ 6(2)

Court of Andhra Pradesh (whose order has been stayed by the Supreme
Court when there was a challenge against it) has held that, when
backwardness of a particular community has to be assessed, it shall be done
on the basis of empirical data vis-à-vis other backward communities.153

The Andhra Pradesh High Court ended up allowing a four per cent
reservation quota for Muslims. Further, Telangana has allowed a four per
cent reservation status to Muslims in education and employment
opportunities, under the OBC category. Further, the TRS government in
Telangana had also proposed a twelve per cent quota for Muslims within
the state-level OBC lists, but the Bill passed by the State Legislature has
not been notified as of yet.154 The primary objection that emerged against
this Bill was that it would violate the fifty per cent cap on reservations
(emphasized in the Indra Sawhney decision) and that reservations for
religious minorities were not contemplated in the original constitutional
scheme.155 Satish Deshpande and Geetika Bapna from Delhi University
Dalits in the Muslim and Christian Communities: A
Status Report on Current Social Scientific Knowledge 156 for the National
Minorities Commission in 2008. In this report, they rely on data from
kers of income, kinds of occupation,
education across different kinds of households have been recorded. The
report concluded that there is ample socio-scientific evidence on the
discrimination faced by Dalit Muslims and Dalit Christians. Through the
data available, the Report observed that economically, Dalit Muslims are
worse off compared to non-Dalits. Among Dalits of different religions,
nearly forty seven per cent of Dalit Muslims in urban India are in the below

153 T. Muralidhar Rao v. State of Andhra Pradesh, 2010 SCC OnLine AP 69.
154 M. Rajeev, Telangana Assembly passes bill to hike Muslim quota to 12%, THE HINDU (Apr.
16, 2017), [Link]
passes-bill-to-hike-muslim-quota-to-12/[Link].
155 TNM Staff, , THE
NEWS MINUTE (Apr. 17, 2017), [Link]
continues-protest-against-telanganas-muslim-quota-hike-several-arrested-
60492; Scroll Staff,
never approve it, THE SCROLL (Apr. 17, 2017), [Link]
bjp-describes-muslim-reservation-bill-as-trash-says-the-centre-will-never-approve-it.
156 Satish Deshpande & Geetika Bapna, Dalits in the Muslim and Christian Community- A

Status Report on Current Social Scientific Knowledge, NATIONAL COMMISSION FOR MINORITIES
19 (2008), [Link]
n_and_Muslim_Communities.pdf.

152
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MARGINALISED MUSLIMS
poverty line category. This is a significantly higher percentage than Hindu
Dalits and Dalit Christians. In rural India, forty per cent of Dalit Muslims
and thirty per cent Dalit Christians are in the Below Poverty Line
category.157

Furthermore, in terms of education, the gap between Dalits and non-Dalits

among Muslims is worse. The economic data showed that Dalits Muslims
are worse off than the other segments of their communities they are
over-represented among the poor or disadvantaged (as seen in the data
above) and under-represented among the privileged by all conventional
measures of poverty or disadvantage. The Report does not summarise
discrimination of Dalit Muslims in terms of untouchability, rather the
methodology involves studying the inequalities that exist. Dalits are worse
off across all religions practised in the Indian subcontinent. The report
states:158

If no community had already been given SC status, and if the decision to accord
SC status to some communities were to be taken today through some evidence-
based approach, then it is hard to imagine how Dalit Muslims and Dalit
Christians could be excluded.

There have been minimal developments in the direction of substantially

elevating the position of Muslims in the country, besides proposing on-
paper solutions for affirmative action. There has been no serious enquiry
by the State to recognise systemic caste based oppression faced by
members of the Muslim community, and the demand for effective
representation for Muslims in the country remains a distant dream.159
Considering the prejudices at play, the kinds of social conflict and
hierarchies which exist in India, an inclusive representation of Muslims in
political, educational and employment sectors while acknowledging and
factoring in the existence of a caste system in the community would be the
most ideal step forward.

157 Id.
158 Id.
159 Prateek Patnaik, Caste Among Indian Muslims Is a Real Issue. So Why Deny Them Reservation?,

THE WIRE (Dec. 02, 2020), [Link]

why-deny-reservation.

153
 CALJ 6(2)

In Mohammad Sadique v. Darbara Singh Guru,160 the Supreme Court upheld

the SC status of Sadique, a person from the Doom community who
converted to Sikhism from Islam. The Court essentially agreed that religion
and caste are both independent of each other although a person would
convert out of a religion, the caste status would be carried forward with
that individual. However, Dalits who profess Hinduism, Sikhism and
Buddhism are the only ones who can avail reservations instrumental to
enhance their socio-economic status as a community. Similar positions
were also held in the cases of Principal, Guntur Medical College, Guntur v. Y
Mohan Rao,161 S Anbalagan v. B Devarajan,162 Kailash Sonkar v. Smt. Maya
Devi163 and K P Manu v. Chairman, Scrutiny Committee.164

However, it can be argued that the implications of these judgments are

conflicting to the fundamental tenets of our Constitution vis-à-vis the intent
behind providing reservations (essentially, Part III which extends to the
principle of equality to all religions).165 A bare reading of the judgment
shows that the SC status provided to Mohammed Sadique came from the
fact that he had converted to Sikhism, which would not be possible to
exercise if he were a Muslim however, both of his religious affiliations
had no relation to the deprivations and backwardness he faced as a member
of the Doom community. In a way, it can be said that Hinduism, Sikhism
and Buddhism (as per the mandate of the Presidential Order, 1950) have
an upper hand over minority religions such as Islam, when the case of
providing welfare benefits due to caste-based deficiencies are involved.

In such a case, only two scenarios can pan out: i) the current stance of SC,
ST and OBC reservations are revised and they are made religion neutral;
and ii) reservation schemes for Pasmanda Muslims are introduced on the
basis of their deprivations. As recently as 2020, the Supreme Court agreed
to examine a plea by the National Council of Dalit Christians, a private
organisation, religion neutral
Christians to benefit from the status provided under the 1950 Presidential

160 Mohammad Sadique v. Darbara Singh Guru, 2015 SCC OnLine P&H 7273.
161 Principal, Guntur Medical College, Guntur v. Y Mohan Rao, 1976 AIR 1904.
162 S Anbalagan v. B Devarajan, 1984 AIR 411.
163 Kailash Sonkar v. Smt. Maya Devi, 1984 AIR 600.
164 K P Manu v. Chairman, Scrutiny Committee, (2015) 4 SCC 1.
165 Vinay Sitapati, Reservations, in THE OXFORD HANDBOOK FOR THE INDIAN

CONSTITUTION (Oxford University Press 2015).

154
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MARGINALISED MUSLIMS
166
Order. On the other hand, the Supreme Court has accepted to hear a
petition that reviews EV Chinnaiah, towards further sub-categorisation of
SCs and STs and making a non-creamy layer for them. Arguing from the
Muslim reservation perspective, this push by the government comes
without making any credible assessment of castes among Muslims, before
they can be included in this list.

In regards to (ii) as stated above, as we explore this unique case for

reservations for Muslims in India, there are various socio-political factors
that need to be taken into account due to the prevalent conditions and the
shortcomings that could derive from the same. An all-pervasive/blanket
Muslim quota would fail to provide the benefits that are needed to elevate
the community, as they face discrimination on the basis of caste-identities.
A lower caste-Hindu who would convert to Islam would still face the perils
of being discriminated on the basis of their social standing in the prevailing
hierarchies.167 If blanket reservations are provided to Muslims, then it
would fail to address the roots of specific evils of socio-economic
deprivations, political under-representation, and geographical
disadvantages, without addressing the actual underlying issues of elevation,
equal access, and opportunities for deprived Muslims.

In such a case, it would be a wise step to revise the current SC/ST list, in
order to provide quotas and reservations to backward Muslims on the basis
of empirical data that determines the unique issues faced by them, due to
the virtue of their identity. It can be argued that providing blanket quotas
would cause greater harm towards the growth of Muslims and larger
attention should be paid towards promoting education and economic
growth to the community in order to allow them progress.

Due to the existence of discrimination in the public and private spheres at

large, the only plausible way to promote an equal level-playing field for the
Muslims would be to increase representation by targeted reservations and
proportional representation constitutional schemes which are religion

166 Priscila Jebaraj, 70-year wait for Dalit Christians, Muslims on SC verdict over caste status, THE
HINDU (Aug. 10, 2020), [Link]
dalit-christians-muslims-on-sc-verdict-over-caste-status/[Link].
167 Shamim Ahmad & A.K. Chakravarti, Some Regional Characteristics of Muslim Caste Systems

in India, 5(1) GEOJOURNAL 55 (1981).

155
 CALJ 6(2)

autonomous in nature. This shall not fuel debate about religious rights as
mentioned in the Constitution, and shall prevent backward Muslims from
facing any political mileage at the hands of the majority. However, due to
invisibility in mainstream discourse, the limited data about different caste
groups can impede informed policy and welfare measures. SCs and STs
(Muslims or otherwise) should be sub-classified so that the more
marginalised groups within these can avail more benefits.

Another deep-rooted issue that needs to be addressed is the intra-

community disparity in terms of mobilisation and unity in the cause for
demanding reservations. Due to the existing class and caste hierarchies,
coupled with inter-sect prejudices, in order to overcome the political
turmoil in the country that is presented by the Hindu right-wing majority
at the Centre, there needs to be a strong united voice that comes from
within. Although there is minimal data with respect to the capturing of such
attitudes, an interesting survey conducted by Lokniti, Centre for the Study
CSDS
KAS
were unique in the sense that they were the only ones to support
reservations for backward individuals of their community, even if they
themselves would never access such reservation.168 While one cannot deny
the fact that there are inter-sect and class conflicts amongst the Muslim
community, the tolerant attitudes towards reservations for the backward
individuals does evade a roadblock in terms of obtaining such benefits. It
hints at a possibility where the community would be able to overcome their
deprivations much faster in light of its coherence against the political
turmoil it perceives. However, the attitude of the current Union
Government does not seem favourable in this direction.

For example, in February 2016, the Union Minister of Social Justice and
Empowerment, Thawar Chand Gehlot said that granting SC status to

168Key highlights from the CSDS-

Changing , KONRAD ADENAUER STIFTUNG (Apr. 3, 2017), [Link]
c/document_library/get_file?uuid=2fdad3d0-1a8c-fd74-919b-
cf8d9f1761b6&groupId=252038.

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members from other religious groups could incentivise many to convert to
other religions from Hinduism, which cannot be allowed.169

However, the recent 127th Constitutional Amendment Act, 2021170

OBC Reservation Act

in Jaishri Laxmanrao Patil v. Union of India,171 in many ways brought

community demands for inclusiveness in state mechanisms to the fore. The
Parliament was flooded with Members of Parliament appealing to break
the fifty per cent cap on reservations and in a very long time clocked the
demand for the Presidential Order, 1950 which granted SC and ST status
to various communities, to be religion neutral bringing this issue into the
mainstream discourse.172 Following the OBC Reservation Act, the
discussion for performing a nation-wide caste-based census (which has
never taken place in independent India) has taken up prominence, with
further action being awaited from the Central Government on the same.173

WAY FORWARD

There has never been a recognition of religion-based reservations for

Muslims as a mechanism for combatting injustices faced by Muslims in the
form of regular cases of social discrimination174 and denial of
opportunities175 on the basis of their minority status (as discussed in the
previous portion of the paper). As substantiated above, the Indian Muslim

169 Press Trust of India, SC status to Dalit Muslims, Christians will encourage conversion,
DECCAN HERALD (Feb. 15, 2016), [Link]
-[Link].
170 INDIA CONST. art. 342A cl. 1 & 2, 366 cl. 26 & 338B cl. 9 amended by The Constitution

(One Hundred and Twenty Seventh Amendment) Act, 2021.

171 Jaishri Laxmanrao Patil v. Union of India, 2020 SCC OnLine 727.
172 Special Correspondent, ,
THE HINDU (Aug. 11, 2021), [Link]
clears-bill-restoring-right-of-states-to-specify-obc-groups/[Link].
173 Aparna Alluri & Zoya Mateen, Caste Census: Clamour to Count India Social Groups Grows,

BBC (Aug. 28, 2021), [Link]

174 Hasan, supra note 4.
175 ABDUR RAHMAN, DENIAL AND DEPRIVATION: INDIAN MUSLIMS AFTER THE SACHAR

COMMITTEE AND RANGNATH MISHRA COMMISSION REPORTS (Manohar Publishers &

Distributors 2019).

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othering
majority, which has reflected towards reinforcing deep-rooted prejudices
in policies and legislations, alongside social ongoings of everyday life. In
order to understand an ideal policy around welfare benefits for Muslims,
one needs to understand the following underlying issues:

A. WHAT ARE QUOTAS FOR MUSLIMS SUPPOSED TO ACHIEVE OR

REMEDY?

Here, we are looking at the socio-economic deprivations, political under-

representation and cultural prejudices against and among Muslims. The
Indian Muslim faces threat from the political majority in this country and
within the community has to negotiate with resources based on identity
markers of caste and sect. Measures taken by the State to elevate the status
of Muslims do not seem to be enough. In an attempt to address Muslim
Diversity Index
order to ensure benefits towards the community.

The Report does not touch upon caste (Pasmanda Muslims) within the
Muslim Community, which can be recognised as a primary unit in the
structuring of access to resources. If the State takes measures to elevate the
status of the Muslims, the ripple effect shall be visible automatically in the
longer run. In such a case, including backward Muslims under the ambit of
the Presidential Order, 1950 is the first step in this direction.

B. WHAT IS THE NATURE OF MUSLIM BACKWARDNESS?

Muslim backwardness, like the backwardness of any other community in

India, needs to be understood in a historical context, alongside the
contemporary developments in place. Like their poor Hindu counterparts,
a larger section of Muslims has lived in concentrated pockets across the
country, the question of access to resources has been structured in terms
of social phenomena the State has refused to engage with.176 Locational
differences, regional disparities and the nature of the state cannot be side-
tracked, while attempting to assess the economic conditions of a
community. In su

Rowena Robinson, Indian Muslims: The Varied Dimensions of Marginality, 42 ECON. & POL.
176

WKLY. 839 (2007).

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in its own as they are being discriminated against and deprived, but their
systemic oppression has not been adequately enquired into, to be visible.177

Pasmanda Muslims, apart from being victims of structural socio-economic

deprivations, have been discriminated against based on their identity as
Muslims by the majority.178 The effect of this can be seen on the population
front, wherein poverty, economic and social is one of the major reasons
for the vast population, especially in these communities.179 Very recently,
the Uttar Pradesh Government brought in a policy180 aimed at controlling
population, but the kind of politics that it has been exposed to and the
heal-hearted conceptualisations of demographic realities181 this policy is
marred with would not help in achieving the aim it expresses on paper
aims. The two-child policy that was drafted in Uttar Pradesh places burden
on the people to control fertility indices, but it does not negotiate with the
existing structures of power such as patriarchy and caste that such a policy
in its transition on ground will have to negotiate with. The effect of such a
policy on ground would not effectively be a reduced fertility rate, but it
would fuel sex-recognition leading many to abort female foetuses.182 The
incentives of the policy are not nuanced enough to negotiate with the
patriarchal setup, especially in the marginalised sections of the society. On
one hand, it would result in many citizens losing out on benefits that other
government schemes provided and on the other, it has a possibility of
creating a sex-ratio imbalance.

C. WHAT IS THE CONNECTION BETWEEN LACK OF REPRESENTATION,

MUSLIM BACKWARDNESS, MUSLIM MARGINALISATION AND
MAJORITARIAN PREJUDICE?

177 Momin, supra note 7.

178 Id.
179 T. N. Krishnan, Population, Poverty and Employment in India, 27 ECON. & POL. WKLY.

2479 (1992).
180 Uttar Pradesh Population (Control, Stabilization and Welfare) Bill, 2021.
181 Mohan Rao, Two-child Norm and Panchayats: Many Steps Back, 38 ECON. & POL. WKLY.

3452 (2003).
182 P. N. Mari Bhat, Two-Child Norm: In Defence of Supreme Court Judgment, 38 ECON. & POL.

WKLY. 4714 (2003).

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othering of Muslims is primarily a political phenomenon that has

social and economic implications. Increased representation of Muslims in
State machinery would be the most appropriate response to this stimulus.
But the unheard voices, since the Assembly and the successive formation
of the Indian State should be given more space in our discourse of Muslim
representation today. To address inequality and deprivations faced by
Muslims in India, the questions of resource allocation in the socio-political
economy need to be meaningfully engaged with. It is this inequality and
structural deprivation that keeps a large chunk of the Muslim
impoverished. And the majoritarian prejudice is a huge hurdle to have a
conducive atmosphere for any betterment, especially for Pasmanda
Muslims, who are the most marginalised.183

D. WHAT ARE THE BENEFITS THAT WOULD CORRECT MUSLIM

BACKWARDNESS?

While making active attempts to curb the majoritarian attitudes that are
breeding in Indian politics, the demands of the various sections of the
Muslim society need to be meaningfully engaged with, to understand the
kinds of disadvantage which are prevalent. In course of this, targeted
attempts must be made, to address the socio-economic deprivations faced
by the most marginalised sections among Muslims. The demands made by
Pasmanda Muslims could be the starting point to identify the socio-
economic placement of different castes and sections among Muslims
where economic, social and political benefits need to be targeted.

Alongside this, increased quotas and reservation benefits in accordance to

geographical, socio-economic and political deprivation for Muslims is
necessary. This would ensure that the level playing field for the community
gets restored, and an effort towards preventing further discrimination and
marginalization can be made by the State.

E. HOW DOES SUCH AN ACTION FALL IN LINE WITH THE BASIC

STRUCTURE OF THE CONSTITUTION?

religious
to alleviate all forms of poverty among Muslims. The primacy of these

183 Momin, supra note 7.

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plans is not only to enhance the status of Muslims, as a whole but to address
the socio-economic deprivations of a large number of populations, that
remains impoverished and is subjected to political marginalization on the
ou inside

Muslims. The scheme of the Constitution allows the State to make quotas
only when backwardness has been identified. This has not reached out to
benefit large sections of Indian Muslims because of a crystallized
homogenous identity structured to benefit the upper sections of Muslims
and/or the political majority of the country. This homogenous identity
comes as a major source for the suffering and statelessness of large sections
of the Muslim society in India. Breaking this homogeneity and enquiring
into the social and educational backwardness of Muslims, especially
Pasmanda Muslims shall fall under Article 15(4) and 16(4) of the
Constitution.184

Furthermore, as Part III of the Constitution highlights prevention of

discrimination on the basis of religion, introducing a religion-neutral quota
caste secular
Article 340, 341 and 342,185 alongside the
Presidential Order, 1950 lays down the framework. The inclusion of
Muslims under this ambit shall act as the first step towards the elevation of
Pasmanda Muslims in India.

CONCLUSION

The insensitivity that has crept into the various pillars of Indian democracy
in its course of fuelling and being complicit to communal divisions among
governance is criminal and culpable. The social fabric of the country with
its normalised sense of fear, especially in the case of religious identities,
remains strained. While on one hand, Indian constitutionalism has grown
to discuss concepts like the anti-stereotype principle,186 which requires

184 INDIA CONST. art. 15 cl. 4, art. 16 cl. 4.

185 INDIA CONST. arts. 340, 341, 342.
186 Gautam Bhatia, Sex Discrimination and the Constitution XI: The Justification of the Anti-
Stereotyping Principle, INDIAN CONST. L. PHIL. BLOG (Nov. 04, 2020), [Link]
[Link]/2015/08/31/sex-discrimination-and-the-constitution-xi-the-
justification-of-the-anti-stereotyping-principle/.

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credible identification and naming of the stereotype by the judiciary187 to

battle systemic oppression; on the other, the politics of the republic breeds
on fear and catalyses the ghettoisation of marginalised communities and
identities. Ghastly politics makes even the identification of the former very
difficult.

As opposed to the rhetoric in the Assembly, when questions of separate

electorates and minority rights were being rested, a case can be made in
Pasmanda Muslims (in political,
educational and employment spheres), and such socio-economically
marginalised religious minorities shifting away from the evidently flawed
reasoning that it would be detrimental to the making of a homogeneous
community. The consequent shooting down of these needs must be looked
at, from how national unity has panned out now, in terms of their dignity
rights being shredded and made redundant.

An immediate example towards the under-representation of Muslims is the

fact that only around twenty seven Members of Parliament identify as
Muslims in a nation with more than two hundred million Muslims 188 as
discussed in detail above. This pattern189 continues in most avenues of state
machinery, with the Muslim identity as a whole being grossly
underrepresented. The contradictions of representation in our democracy
become much clearer as we look at basic divisions of caste. A
disadvantaged community, which lags in almost all indices, would make its
integration with the remaining populace meaningful only if there is better
representation provided to them in all spheres. To do so, questions of caste
need to be discussed and addressed in an expeditious manner. In this
manner, the integration of Pasmandas with the remaining populace would
be meaningful only by ensuring adequate educational and political
representation. In this regard, there is an imminent need to revive and

187 Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1.

188 Prakash Singh, 2019 Lok Sabha election results: Only 27 Muslim MPs elected to Parliament,
from the BJP, THE SCROLL (Nov. 04, 2020), [Link]
sabha-election-results-only-24-muslim-mps-elected-to-parliament-none-from-the-bjp.
189 Abantika Ghosh, Muslim working proportion lowest among communities, Indian Express (Nov.

04, 2020), [Link]

proportion-lowest-among-communities/.

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resurrect a public culture with democratic insistence amidst these dominant
voices paving way for a more stable public sphere.190

Peter Hohendahl & Patricia Russian,

190 , 3 NEW
GERMAN CRITIQUE 45 48 (1974).

163