Maharastra’s Bout of Political Drama and the Constitutional Crisis

  • Ashwin Bala Someshwerar

The appalling events that took place after the state assembly election in Maharastra posed a major threat to democracy as the news reports abashed the political parties of their alleged involvement of buying and selling of lawmakers, and the brazen attempt to subvert political and ethical norms. Some have even fathomed that India tote with the world’s largest democracy is losing its integrity. The homeostasis of Indian Polity was disturbed, and the constitution was fumbled with.

The facts leading to the unbecoming events in nutshell are there was a pre-poll alliance between BJP and Shiv Sena. The former couldn’t form the government immediately after the declaration of results as its alliance with the latter broke down. No party was able to maneuvre the majority in the house, thus the Governor recommended President’s Rule, and a presidential proclamation was made on 12.11.19. News spread about the grand alliance of the Maha Vikas Aghadi. On 23.11.19 the President’s Rule was revoked and BJP was invited to form the government by the Governor. Keeping aside the political power play, it would be more relevant to reflect upon the constitutional implications.

This constitutional crisis raised questions on the unscrupulous powers exercised by the Governor under the constitution. Like a big brother stepped in the Supreme Court of India – after a writ petition[1] which was filed by the Maha Vikas Aghadi[2] – to awaken the constitutional morality from the nightmares of political drama. True that the boundaries between the jurisdiction of courts and Parliamentary independence are a contentious one, this situation is not new to the Indian judiciary and was handled with utmost regard to the rule of law.

The petition before the Supreme Court seeking for a declaration that the Governor’s action was unconstitutional, arbitrary, void ab initio. The crucial prayers were with regard to the interim measures seeking the court’s direction to summon a special session with the only agenda administering the oath to the MLAs, immediately followed by the holding of a floor test. Further, this was also sought to be video recorded following various decisions of the SC.[3]

The case for the Petitioners was argued by renowned Senior advocates[4] who vehemently submitted that the Governor’s acceptance of BJP’s proposal to form the government with a post-poll alliance with a faction of NCP reeked of mala fide, and the Governor turned a blind eye to the legality of the alliance. Amidst these fiery arguments, the learned Solicitor General prima facie raised an objection as to the interference of the House proceedings by the Court as per Article 212 of the Constitution. Further, the Governor was satisfied with the material placed before him and wasn’t obligated to conduct a roving enquiry. Various other submissions were made with regard to the Governor’s independence, and the Court’s lack of authority under Article 32 of the Constitution.

The Court felt that this political drama raised “questions concerning important constitutional issues touching upon the bulwark of our nation”[5], and also the need to “uphold democratic values and foster constitutional morality.”[6] Albeit, aware of the institutional boundaries, the court placed reliance on its own previous decision which held that the Supreme Court being “the sentinel on the qui vive of the Constitution is under the obligation to see that democracy prevails…”[7], the Court felt the exigency to prevent the delay of the floor test to protect democratic values, failure of which would pave way for horse-trading. It is also pertinent to note that not a year has elapsed since the Karnataka Political power play, wherein the SC jumped in and emphasized the requirement of imbibing constitutional morality by the constitutional functionaries.

This situation is not new to the Indian Democracy or its Constitution. The imperativeness of a floor test was challenged  in various cases before the courts, and there is a galore of judgments following a Supreme Court holding that “it is the Legislative Assembly that represents the will of the people and not the Governor.”[8] The Supreme Court nonetheless in the present case was equipped with a catena of precedents ordering an emergent floor test notwithstanding its interference with the House proceedings.[9] Most importantly, the application of Article 212 to the present case was shied away from the ground that neither any proceedings of the Legislature nor an act of any officer or member of the legislature has been made the subject matter of the petition.

The Court requested the Governor to conduct a floor test and laid down a procedure for the same. The Governor is ought to follow such order not because he is bound by the SC[10] but it is the constitutional mandate that he cannot refuse the formation of the government by a majority claim. Being a constitutional functionary having utmost regard to constitutional morality, it is incumbent upon the Governor that this action should be taken without any undue delay which would pave way for horse-trading. The constitution does not envisage unscrupulous discretion to the Governor.

The author is a 4th-year B.Com LL.B student from TNNLU, Tiruchirapalli

[1] Shiv Sena & Ors. v. Union of India, WP No. 1393 of 2019, available at:

[2] The post poll alliance formed by Shiv Sena, NCP and INC.

[3] Jagadambika Pal v. Union of India, (1999) 9 SCC 95; Union of India v. Harish Chandra Singh Rawat,

[4] Mr. Kapil Sibal and Dr. A.M Singhvi.

[5] Shiv Sena & Ors. v. Union of India, WP No. 1393 of 2019,  para 17.

[6] Ibid.

[7] Union of India v. Shri Harish Chandra Singh Rawat, (2016) 16 SCC 744, para 8.

[8] S.R. Bommai v. Union of India, (1994) 3 SCC 1.

[9] Jagadambika Pal v. Union of India, (1999) 9 SCC 95; Anil Kumar Jha v. Union of India, (2005) 3 SCC 150; Union of India v. Harish Chandra Singh Rawat, (2016) 16 SCC 744; Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758; G. Parameshwar v. Union of India, (2018) 16 SCC 46.

[10] S.R. Bommai v. Union of India, (1994) 3 SCC 1. (the foundation for limitng the governor’s discretionary power was laid down); See also Dhananjay Mahapatra, “Karnataka governor bound by Supreme Court order to call Congress-JD(S)?” Economic Times, May 16, 2018,

The Citizenship (Amendment) Act, 2019: Religion Over Rights

  • Mayur Kulkarni

The Indian Parliament recently passed the Citizenship (Amendment) Act, 2019 (hereinafter Act) which seeks to provide Indian nationality to six communities-Hindus, Christians, Sikhs, Parsis, Jains and Buddhists fleeing persecution from Pakistan, Afghanistan, and Bangladesh. The Act amends the Citizenship Act, 1955 to make illegal migrants in the select categories eligible for citizenship.

On the face of it, the Act seems to be an attempt to provide Indian Citizenship to the persecuted minorities from the neighboring countries, however, when seen in light of the National Register for Citizens (NRC)(an exercise conducted by the government to identify illegal immigrants from Bangladesh), the Act seems to suggest otherwise. To illustrate, if a Hindu is declared illegal immigrant under the NRC, she would be protected from detention and eventual deportation by the operation of this Act. However, if a Muslim is declared illegal immigrant, she would be deported as the Act excludes Muslims from its purview. Due to such religion-based classification of people, the Act has come under widespread criticism from civilians, human rights activists, and the international community. The basic criticism is that the Act is prejudicial to the Muslims minorities in India and also that the Act violates the settled principles of Indian Constitutional law. In this post, I would analyze the constitutionality of the Act.

The most severe criticism of the Act is that it violates Article 14 of the Indian Constitution. Article 14 guarantees that no person shall be denied equality before the law or the equal protection of laws within the territory of India. The Indian Supreme Court while interpreting Article 14 has laid down the test that whenever an act makes a classification among groups, such classification must have an intelligible differentia and a reasonable nexus with the legislative object. The Court in a landmark judgment explained that intelligible differentia means that there must be a yardstick to differentiate between those included in and those excluded from the group. Later in its 2018 landmark judgment, the Court held that the yardstick used to make the differentiation must also be reasonable and that whenever legislation makes discrimination on the basis of an intrinsic or core trait of an individual, it cannot form a reasonable classification based on intelligible differentia. The Court also noted that “Race, caste, sex, and place of birth are aspects over which a person has no control, ergo they are immutable. On the other hand, religion is a fundamental choice of a person. Discrimination based on any of these grounds would undermine an individual’s personal autonomy”.[1]Therefore classification on such grounds would not be permissible.

Another test laid down under Article 14 is that the classification made must have a reasonable nexus with the legislative object. The object of this Act is to ‘protect those who have faced religious persecutions in Afghanistan, Pakistan and Bangladesh’. However exclusion of Muslims from the category of ‘persecuted’ the Act is based on false premises that no Muslims are persecuted in the Muslim-majority countries. However, different sects of Muslims like the Shias and Ahmadiyyas in Pakistan, Rohingyas in Myanmar have faced serious persecution based on religion. Thus, the exclusion of Muslims from the protection of the Act does not have any reasonable nexus with the legislative object of the Act.

The Act further makes a county-based classification also. The persecuted minorities from only Pakistan, Bangladesh and Afghanistan are covered under the Act. Such country-based classification fails the ‘manifest arbitrariness’ test under Article 14 which was laid down by the Supreme Court in Shayara Bano[2] case. The ‘manifest arbitrariness’ is something done by the legislature capriciously, irrationally and/or without adequate determining principle’. There seems to be no adequate determining principle for bringing only these countries under the Act. The common factors among these countries are that one, they are Muslim-majority and second they are India’s neighboring countries. Firstly, the justification that all three countries are Muslim-majority countries and hence Muslims are not ‘persecuted’ in those countries is refuted above. Secondly, all these are the neighboring countries of India that also do not seem to be adequate because other neighboring countries like Sri Lanka where Tamilians have historically faced persecution and also Myanmar where the Rohingyas are subject to serious persecution have been excluded from the Act. Moreover, no reasoning has been given by the government for the non-inclusion of other neighboring countries. Hence the Citizenship Amendment Act fails to pass both the reasonable differentia test and the nexus test and thus violates Article 14 of the Constitution.

Another criticism of the Act is that it violates the ‘basic structure’ doctrine of the Indian Constitution as laid down in the landmark Kesavananda Bharati[3] case. The Act violates the principle of secularism which is enshrined in the Preamble and also is a part of basic structure as per the landmark judgment of the Supreme Court. The Act also violates Article 15 which prohibits ‘discrimination based only religion’. The Act envisages providing citizenship to groups based only on the religion and this stands in blatant violation of secularism and Article 15 of the Constitution.

Other criticisms include that the Act goes against the principles of jus soli and the obligation to reduce to statelessness which has come to be recognized as part of the customary international law.

As discussed above, I believe that the Act is unconstitutional and accordingly an Act that stands in blatant violation of the basic tenets of the Constitution must be done away with. Accordingly, the government must consider the criticisms expressed against the Act and make necessary amendments so as to uphold the sacrosanct tenets of the Indian Constitution.

The author is a student of Gujarat National Law University, Gandhinagar (2nd Year).

[1]Navtej Singh Johar v. Union of India, 2018 SCC OnLine SC 1350

[2] Shayara Bano v. Union of India, (2017) 9 SCC 1

[3] Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225

Ayodhya Verdict- A Panacea or Pandora’s Box

  • Himanshu Tyagi

The Constitutional Bench of the Supreme Court on 9th November 2019 unanimously delivered the long-awaited historic judgment.[i] The century-old dispute came to a rest when the Apex Court set aside the Allahabad High Court’s verdict[ii] and bestowed the “rightful owner” of the disputed 2.77 acre land to Shri Ram Lalla Virajman. Additionally, the Court allocated 5-acre land at a “prominent site” to the Sunni Waqf Board for a mosque while exercising its powers under Article 142 of the Constitution which “ensure(s) that a wrong committed must be remedied”.

The Bench, headed by Chief Justice of India Ranjan Gogoi and comprising of Justice S.A Bobde, D.Y Chandrachud, Ashok Bhushan and S. Abdul Nazeer concurringly delivered the judgment in favour of the Hindu Respondents. It held that since the Hindu Respondents have been in exclusive and unimpeded possession of the outer courtyard, where they have continued their worship, they are the legal proprietors. Moreover, the Hon’ble Supreme Court dismissed the plea of the Appellants as they failed to prove the exclusive possession of the inner courtyard.Also, the significant findings by the Archaeological Survey of India in its 2003 Report were able to conclusively convince the Bench that the Mosque was built over a non-Islamic structure and not on the unadorned land as claimed by the Appellants.

Further, while constituting a Trust to build the Ram Temple on the disputed site, the Apex Court condemned the acts of placing the idol in the inner courtyard of the mosque on the night of 22nd December 1949 and the demolition of the Babri Mosque on 6th December 1992. The judgment labelled these acts as “illegal”, “criminal” and “against the law of the land”. The Bench held that the Places of Worship Act, 1991 was passed to “preserve the religious character of every place of worship as it existed on 15 August 1947.” However the Ram Mandir-Babri Masjid dispute was specifically exempted as it was pending before the Court for adjudication.

Furthermore, the Bench reiterated[iii] that the idol of Lord Ram is a juristic person by all means and can enforce its property rights through its shebait. Italso made a clear distinction between ‘occupation’ and ‘possession’ while holding that “mere possession of the land would not ripen into the possessory title. The possessor must have animus possidendi and hold the land adverse to the title of the true owner”.

Despite giving a well-versed reasoning, the judgment can be frowned upon on certain issues.

  • If the event of forceful encroachment of the sanctum sanctorum by the deity in 1949 is illegal, how could the deity be held as a rightful owner of the same?
  • While assertively claiming that the judgment will only address the legal questions as “the Constitution does not make a distinction between faith/ belief of one religion and another”, then why  does it pari passu assert in its reasoning the “undisputed belief and faith in Lord Ram”.
  • Despite the Hindu Respondents only having possession of the outer courtyard and a proclaimed right to worship, why was the entire burden to prove the exclusive possession placed on Muslim Petitioners?
  • another question which arose in the admissibility of this judgment is that should litigants accept an unsigned verdict? It is a fact that no court of law in India accepts a shred of unsigned evidence or affidavit and therefore why should the Litigants in this case oblige?

All these questions and a plethora of several more remained unanswered even after the Review Petition was dismissed. It is true that no one other than Apex Court has to answer these queries sooner or later.

Moreover, the author of the 1045 page judgment still remains a mystery, as the Supreme Court decided to keep the identity of the Judge hidden. This is highly unusual and in a departure from convention.  The judgment also came with an addendum which summarised the findings of the Court but who penned it, is still a question mark. However, one can easily adduce through the writing technique and the uses of specific fonts that the judgment was penned by Justice D.Y. Chandrachud and the author of addendum was Justice Ashok Bhushan.

  • A large section of the society has accepted the judgment with open arms, as they will get to witness their lifelong dream of “Bhavya Ram Mandir”. But,the aggrieved party has termed this judgment as “solomonic” in which “faith has won over the facts”.

The Apex Court has done its job by conclusively deciding the matter and not leaving room for any future disputes. Now it is our duty “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities”.[iv]

[i] M. Siddiq (D) thr. L.Rs. v. Mahant Suresh Das and Ors. 2019 (6) ALLMR 482, 2019 SCC OnLine SC 1440

[ii] Gopal Singh Visharad & Ors. v. Zahoor Ahmad & Ors. 2010 SCC OnLine 1935.

[iii] Vidya Varuthi Thirtha v. Balusami Ayyar  (1922) 24 BOMLR 629.

[iv] Article 51-A(e), The Constitution of India, 1950